[Extradition Act] Anticipatory Bail Available To Indian Citizen Apprehending Arrest For Alleged Offence Committed Abroad: Delhi High Court

The Delhi High Court has ruled that the protection of anticipatory bail under Section 438 of CrPC can be invoked by a 'fugitive criminal' facing proceedings under the Extradition Act, 1962.Justice Sanjeev Narula held that an Indian citizen who apprehends arrest in India for an alleged offence committed abroad is not stripped of the protection guaranteed under Article 21 of the Constitution. “Section 438 of the Cr.P.C. is not merely a statutory remedy, it is a procedural safeguard flowing directly from the constitutional command that no person shall be deprived of liberty except by just, fair, and reasonable procedure established by law,” the Court said. It added that the Extradition Act contains no prohibition on grant of pre-arrest bail and that to read such a prohibition into the statute would amount to judicially engrafting a limitation that the Legislature, in its wisdom, has chosen not to impose. The Court said that Section 25 of the Extradition Act does not impose any bar, express or implied, on the grant of pre- arrest bail and that the two provisions operate in distinct procedural spheres and can co-exist without conflict. “The Extradition Act, despite being a special law, does not oust the constitutional safeguards embedded in the Cr.P.C., particularly in the absence of a specific legislative exclusion. Therefore, an application for anticipatory bail filed before the Magistrate exercising the powers of a Court of Session under Section 7 & 25 of the Extradition Act is maintainable,” it concluded.Justice Narula was dealing with a plea filed by one Shankesh Mutha challenging trial court order dismissing his anticipatory bail plea filed under Section 482 of the BNSS read with Section 25 of the Extradition Act, 1962.Mutha joined Flawless Co. Ltd., an entity based out of Bangkok, Thailand, in 2013 and returned to India after completing 8 years. The company filed a complaint against him in 2021 alleging that he stole 8 diamonds worth around 15.16 million baht and fled to India. Pursuant to a criminal complaint against him, the Southern Bangkok Criminal Court Thailand issued a warrant for his arrest, and Thai prosecutors commenced the extradition efforts. The proceedings commenced before the Patiala House Courts here.Justice Narula observed that while it cannot be disputed that the Extradition Act is a special legislation designed to give effect to India's international obligations in criminal justice cooperation, however, its specialized purpose cannot be invoked to eclipse the general law's foundational safeguards, especially those that are constitutionally rooted, in absence of an express legislative exclusion.“The Extradition Act contains no express bar excluding the applicability of the Cr.P.C. On the contrary, Section 25 of the Extradition Act expressly incorporates the bail provisions under Cr.P.C., declaring that they shall apply “in the same manner” as if the offence were committed in India, with the Magistrate exercising powers akin to those of a Court of Session,” the Court said. Disposing of the plea, the Court said that there was prima facie merit in Mutha's submission that he was not aware of any criminal proceedings initiated against him in the foreign country, when he came back to India.It added there was no convincing material to suggest that Mutha posed a flight risk, or that he was likely to tamper with evidence or impede the judicial process. On the contrary, his conduct reflects a readiness to cooperate, it said. The Court set aside the impugned order denying anticipatory bail to Mutha and granted him the said relief while imposing certain conditions. “The Petitioner has joined the inquiry proceedings before the Magistrate and there is no allegation of non-compliance or obstruction on his part. Thus, in the prima facie opinion of this Court, the Petitioner has demonstrated bona fide intent to co-operate in the inquiry proceedings,” the Court said.Counsel for Petitioner: Mr. Gautam Khazanchi, Mr. Vaibhav Dubey, Mr. Anuj Aggarwal and Mr. Vinayak Chawla, AdvocatesCounsel for Respondents: Mr. Amit Tiwari, CGSC with Mr. Chetanya Puri, Mr. Abhigyan Siddhant, Ms. Ayushi Srivastava and Mr. Ayush Tanwar, Advocates for UOI; Mr. N.K. Matta, SPP with Mr. Siddharth Kaushik and Mohd. Faizan Khan, Advocates for UOI; Ms. Anubha Bhardwaj, SPP with Ms. Muskan Narang, Advocate for CBI; Mr. Rudresh Kumar and Mr. Karan Shankla, Advocates for ComplainantTitle: SHANKESH MUTHA v. UNION OF INDIA & ANRCitation: 2025 LiveLaw (Del) 724Click here to read order

[Extradition Act] Anticipatory Bail Available To Indian Citizen Apprehending Arrest For Alleged Offence Committed Abroad: Delhi High Court

Nupur Thapliyal

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