Surrender of an accused fugitive will only be administratively and judicially allowed after the either acquittal or on expiration of his sentence: High Court of Delhi

The concept of extradition involves the handing over of a fugitive to a foreign country, by the State where the fugitive is currently located. 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. This auspicious judgment was passed by the High Court of Delhi in the matter of MILEN IVANOV DAVRANSKI V UNION OF INDIA [W.P.(C) 1541 of 2021 & CM APPL. 8482 of 2021] by Honourable Justice Prathiba M. Singh.

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.

The Court observed that “The Court in extradition proceedings is, 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. This principle has been recognized in Hans Muller of Nurenburg v. Superintendent, Calcutta and Others, AIR 1955 SC 367. As per the said Treaty, both the countries, which are parties to the Treaty, have agreed for mutual legal cooperation for the purposes of extradition. Both the countries have agreed to surrender the persons, other than their own nationals, who are accused or convicted of an extraditable offence, to each other. The said surrender through extradition is to take place irrespective of the place of commission of the extraditable offence. However, as per Articles 3 and 11 of the Treaty, under certain circumstances, the requested country can refuse to extradite the accused fugitive.”

The Court stated, “Article 3 of the Extradition Treaty, applies only when criminal proceedings have been instituted or judgment has been passed by the Courts in India, in respect of the offence or offences qua which the extradition is requested. This provision would not be applicable in the present petition as the offence qua which the extradition of the Petitioner is sought by the Republic of Bulgaria is not the same offence for which the Petitioner is being tried in the State of Goa, in India. Additionally, under Article 11(1) of the Treaty, the decision on whether to extradite the accused fugitive or not, is to be taken by the Government of India, regardless of other criminal cases pending against the person, and regardless of whether the person is serving a sentence for an offence other than the offense for which extradition is requested. Thus, the extradition request has to be processed despite the pendency of any other criminal proceedings in India. However, under Article 11(2) of the Treaty, once the extradition is granted, the surrender can be postponed until the criminal proceedings in India are completed, or the sentence, if any, is completed, as referred to in Article 11(1).”

The Court observed, “An option for the requested state, like the Union of India in the present case, under Article 11(2) of the Treaty, 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. If, however, such temporary extradition is effectuated, the Republic of Bulgaria has to ensure that the fugitive is detained in Bulgaria, during their stay in Bulgaria, and shall duly transfer back the person to India, within the mutually agreed period, which cannot exceed a period of 3 months. The above are the provisions as contemplated in the treaty between the Union of India and the Republic of Bulgaria.”

Thus, the Court dismissed the petition since, “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.”

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