Surrender Of Accused Under Extradition Proceedings Cannot Be Processed Until Finality Of All Criminal Proceedings Against Him In India: Delhi HC

While dismissing the petition of a Bulgarian National for extraditing him to his homeland, the Delhi High Court on Wednesday held that the surrender of an accused under extradition proceedings cannot be processed until there is finality or conclusion with regards to all the pending criminal proceedings against him in India.

A single judge bench comprising of Justice Pratibha M Singh observed that until and unless there is a finality of the criminal proceedings, either by means of a discharge or acquittal of the accused or due to complete sentence having been undergone, surrender of such a person cannot be effected.

The Court also held that the grant of bail or the permission to travel abroad in pending cases or FIRs would not be covered by the phrase "discharged, whether by acquittal or on expiration of his sentence or otherwise" under sec. 31(1)(d) of the Extradition Act, 1962.

"For e.g., discharge by the trial court under Section 227 of the CrPC., the allowing of a mercy petition conclusively discharging the accused, the grant of a pardon, or any other relief where the criminal proceedings against the accused are concluded/terminated, and a final decision has been rendered, which would no longer require the accused's presence in India. Mere temporary release on bail would not be sufficient." The bench observed.

The petitioner, who is currently lodged in the Tihar Central Jail, had sought directions on the Union of India to take steps to expedite his extradition to his homeland Bulgaria. He had been in jail for the offence of distributing narcotics substances to Bulgaria.

The Central government had asked Additional Chief Metropolitan Magistrate to enquire into a request made by Ministry of Justice, Government of Bulgaria, through the diplomatic channels, requesting his extradition. The ACMM was tasked to determine whether a prima facie case for extradition is made out against him in accordance with the Extradition Act and the Extradition Treaty between India and Bulgaria.

The ACMM vide order dated 6th November 2020 recommended his extradition. However, it was the grievance of the petitioner that despite the said order, he was still confined in prison.

During the course of proceedings, the Union of India had raised objection for his extradition by stating that three FIRs, unconcerned with the offence concerning extradition proceedings, were pending against him in Goa.

It was the case of the petitioner that he had been granted bail in all the three FIRs and was even given the permission to travel abroad in two of the cases. In view of this, it was argued that sec. 31(1)(d) of the Act would not be an impediment in the implementation of his extradition as the phrase "or otherwise" would include the grant of bail.

Considering the submissions, the Court while analyzing the Extradition Treaty between India and Bulgaria along with sec. 31(1)(d) of the Act, observed thus:

"A perusal of Section 31(1)(d) of the Act shows that there are two situations that are contemplated within this provision where the fugitive is not to be surrendered by the Union of India. First, if the person is accused of an offence, which is not the offence in respect of which he is sought to be extradited, and secondly if the person is convicted of an offence in India. In either of these cases, until and unless there is a finality to the said criminal proceedings, either by means of a discharge of the accused - by acquittal or due to the complete sentence having been undergone, the surrender cannot be processed. The phrase "or otherwise" appears as a subset of the word discharge, and hence the same would have to be interpreted ejusdem generis and would only be deemed to mean any other form of discharge, which has a finality attached to it"

Touching upon the concept of extradition, the Court observed that:

"Extradition, in no way, means or involves releasing an accused fugitive into freedom and granting them liberty, but rather merely involves handing over the accused from the police in one state, to another, for being tried for the offences that have been committed by the accused fugitive in the requesting state. The Court in extradition proceedings is, therefore, not concerned with the release of the person from jail, but rather is only concerned with the handing over of the person from one country to the another."

Applying the said observations in the case, the Court held that the pendency of all the three FIRs makes it clear that the said proceedings are not concluded against the petitioner as he had not been conclusively discharged. Moreover, the Court also went ahead to observe that:

"An order of bail or an order permitting him to travel abroad would not constitute 'discharge' under Section 31(1)(d), and the said prohibition would therefore be applicable."

"Accordingly, this court is of the opinion that in view of the above position, the request of the Petitioner- accused, for an expedited surrender and extradition, cannot be allowed, until the Petitioner continues to be an accused in the three FIRs lodged against him in Goa, India, and the said cases are pending before the domestic fora." The Court observed while dismissing the petition.

Title: Milen Ivanov Davranski v. Union of India

Click Here To Read Judgment