The Delhi High Court recently comprising of a single judge bench comprising of Justice Pratibha M Singh while dismissing the petition of a Bulgarian National for extraditing him to his homeland, 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. (Milen Ivanov Davranski v. Union of India)
The bench 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.
The bench observed, "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."
Facts Of the Case
The Petitioner is a Bulgarian National who sought a writ of mandamus against Union of India to take steps to expedite his extradition. He is currently lodged in Central Jail, Tihar. Previously, a request was received by the Union of India from the Ministry of Justice, Government of Bulgaria, requesting for the extradition of the Petitioner and upon receiving this request the Union of India under section 5 of the Extradition Act, 1962 requesting Additional Chief Metropolitan Magistrate, Patiala House Courts, to enquire into the extradition request by determining as to whether a prima facie case for extradition is made out in accordance with the provisions of the Act and the Extradition Treaty between the Union of India and the Government of Bulgaria.
An objection was raised on behalf of the Union of India under Section 31(1)(d) of the Act stating that there are three FIRs, pending against the Petitioner in the State of Goa, and the same are unconcerned with the offence concerned in extradition proceedings while the first hearing. He has been granted bail for two of three applications.
Contention of the Parties
The counsel for the appellant submitted that the magistrate inquired about section 5 of the Act. The magistrate, if satisfied, can discharge immediately under Section 24 of the Act. According to Article 11 of the Extradition Treaty, the Union of India has the discretion to permit the extradition even in a pending case.
The Respondent for the State presented that Section 31(1)(d) of the Act does not permit to discharge that petitioner or allow travel if any criminal proceedings are pending. He further referred to Section 227 of CrPC and stated that the Judge can consider discharging the accused under certain grounds. Thus, the mere grant of bail or permission to travel abroad is not enough to discharge and to permit extradition under Section 31(1)(d). The Respondent stated that the conditions of surrender under Section 31(1)(d) are mandatory in nature and are not optional. The judge provided the bail to the Petitioner but only to stay in the territorial jurisdiction of the State of Goa.
Courts Observation & Judgment
After listening to contentions of both counsels, the Court observed,
“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 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. Mere temporary release on bail would not be sufficient.”
The Court applied this rationale to the facts of the present case where the Petitioner is an accused in three FIRs, has been granted bail in all the said three FIRs, and has even been permitted to travel abroad in two of the FIRs. The Petitioner may even be able to seek permission to travel abroad in the third FIR. However, as the pendency of all these three FIRs is not disputed and the fact is that the Petitioner is still being tried for the said offences under the three FIRs, it is clear that the criminal proceedings against him have not concluded and he has not been conclusively discharged.
The court reiterated the meaning of extradition stating,
“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.”
“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.”
However, it was iterated that said dismissal would not prejudice or bar the Petitioner from approaching the appropriate fora to avail of the benefit of the orders granting bail as also permission to travel abroad, in accordance with law.
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