The common refrain in all statutes and treaties thus appears to be that if the person, sought to be extradited, is accused of an offence in the requested state, or has been convicted in the requested state, then either the extradition proceedings itself are postponed/ adjourned, or the surrender is postponed until the conviction is undergone, or the criminal proceedings have resulted in a final conclusion/ termination.{Para 30}
1 S. Bedi, Extradition in International Law & Practice, (1991, Discovery Publishing House) Vol.1 [282]
31. 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. 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.
32. Applying 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 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. Section 31(1)(d) of the Act, restricting the surrender of an accused fugitive squarely applies to the case of the Petitioner as he is still an accused in India, with cases and charges pending to be investigated and determined against him. 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.
33. It is the settled position in law, as held in the case of State of West Bengal v Jugal Kishore More, 1969 (1) SCC 440, that the procedure of handing over or surrender of an accused fugitive would be determined by the domestic law or municipal law. Further it has also been recognized by the ld. Supreme Court of India in Bhavesh Jayanti Lakhani v. State of Maharashtra, 2009 (9) SCC 551, while holding that the Extradition Treaty between the United States of America and India is subject to the provisions of the Extradition Act, 1962, observed:
“58. The Act as also the treaties entered into by and between India and foreign countries are admittedly subject to our municipal law. Enforcement of a treaty is in the hands of the Executive. But such enforcement must conform to the domestic law of the country. Whenever, it is well known, a conflict arises between a treaty and the domestic law or a municipal law, the latter shall prevail.”
Both these judgments of the ld. Supreme Court have been considered by the Division Bench of this court in Brij Bhushan Bansal (supra).
34. 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.
IN THE HIGH COURT OF DELHI AT NEW DELHI
W.P.(C) 1541/2021 & CM APPL. 8482/2021
MILEN IVANOV DAVRANSKI Vs UNION OF INDIA
CORAM:
JUSTICE PRATHIBA M. SINGH
Date of decision: 7th April, 2021
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