Mere temporary release on bail of an accused person would not be sufficient to allow extradition of the person as long as he continues to be an accused in criminal cases in India, the Delhi High Court has held (Milen Ivanov Davranski vs UOI).
A judgment to this effect was passed by a single-judge, Justice Prathiba M Singh while dealing with the extradition plea of a Bulgarian national.
The petitioner, presently in Indian prison, sought a direction to the Central government to take steps to expedite his extradition to his homeland.
The petitioner inter alia argued that Section 24 of the Extradition Act, 1962 was extremely clear to the effect that when a person is permitted to be extradited upon an inquiry under Section 5 by the Additional Chief Metropolitan Magistrate, he would have to be discharged immediately, unless sufficient cause exists to the contrary.
The Central government, on the other hand, relied on Section 31(1)(d) to state that unless and until the person has been granted a form of discharge i.e. he is acquitted or his sentence has expired, in the cases other than for which extradition is sought, he cannot be permitted to be discharged or to travel in pursuance of the extradition order.
The Petitioner, the Centre informed, was implicated in three FIRs in the State of Goa albeit on bail, and the same were unconcerned with the offence concerned in extradition proceedings.
The Court noted that extradition was both an administrative as well as a judicial act, in which the latter is sandwiched between former actions.
It further observed that extradition involved the handing over of a fugitive to a foreign country by the State where the fugitive is currently located and did not mean releasing an accused fugitive into freedom and granting them liberty.
“(Extradition) 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,” it said.
The Court after analysing the Extradition Treaty between the Republic of India and Republic of Bulgaria, stated that an extradition request had to be processed by the Indian government in spite of any pendency of any other criminal proceedings here.
However, under Article 11(2) of the Treaty, once the extradition was granted, the surrender could be postponed until the criminal proceedings in India are completed, or the sentence, if any, is completed, the court added.
Under the present circumstances, the outcome would be to temporarily extradite the person to the requesting state, subject to certain conditions and a mutual agreement between the Government of India and the Republic of Bulgaria, the Court observed.
Further, in view of Section 31(1)(d), the Court said that until and unless there was a finality to the criminal proceedings against the person, either by means of a discharge by acquittal or due to the complete sentence having been undergone, the surrender could not be processed.
Applying the law and considering that the pendency of three FIRs was not disputed, the Court stated that it was clear that the criminal proceedings against him had not concluded and he had not been conclusively discharged, and could thus not be permitted to be extradited.
“The charges which have been levelled against him in the said FIRs are still under investigation, and he has not been acquitted or discharged in the same. Thus the grant of bail or the permission to travel abroad in pending cases/ FIRs would not be covered by the phrase “discharged, whether by acquittal or on expiration of his sentence or otherwise” under Section 31(1) (d) of the Act…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.”
The petition was, therefore, dismissed.