Fugitives can apply for pre-arrest bail under Extradition Act: Delhi high court
Justice Sanjeev Narula underscored that even though the Indian Extradition Act, has been implemented by the legislature to give effect to India's international obligations in criminal justice cooperation, it does not prohibit the grant of pre-arrest bail.
Reading such a prohibition into the statute would amount to judicially engrafting a limitation that the legislature did not choose to impose, the judge held.
'The Extradition Act contains no express bar excluding the applicability of the Cr.P.C. 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. Further, 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,' the judge observed in a ruling delivered on Tuesday.
The court made this observation while dealing with a plea filed by Shankesh Mutha, facing extradition proceedings for alleged theft of ₹ 3.98 crore worth of diamonds in Thailand, against the trial court's order denying him anticipatory bail filed under Bharatiya Nagarik Suraksha Sanhita or BNSS (that has replaced CrPC) and Extradition Act.
The extradition case against Mutha originated from a 2021 complaint by his employer, Flawless Co. Ltd., a Bangkok-based company, which accused him of stealing eight diamonds valued at approximately 15.16 million Thai baht (around ₹ 3.89 crore) and fleeing to India. The company alleged that Mutha confessed to the theft on May 21, 2021, but absconded two days later fearing arrest. Following this, the Southern Bangkok Criminal Court issued an arrest warrant, prompting Thai prosecutors to initiate extradition proceedings. In India, the matter was taken up by the Patiala House courts in New Delhi. On October 3, 2024, the Magistrate issued non-bailable warrants (NBWs) through the CBI and Interpol. In response, Mutha appeared before the Magistrate and sought cancellation of the NBWs and anticipatory bail. However, his application was dismissed on April 3, 2025.
The Centre represented by standing counsel Amit Tiwari had said that the plea was not maintainable since the Extradition Act did not permit the grant of anticipatory bail to a fugitive criminal. Tiwari further submitted that Section 25 of the Extradition Act empowered the Magistrate to only deal with the bail petitions of fugitives who have been arrested or detained.
In its 35-page ruling, the court held that the section 25, merely describes the stage at which the question of grant of bail arises and does not contain an express bar on the grant of anticipatory bail. 'Crucially, the provision does not contain any express bar on the grant of pre-arrest bail, nor does its language support an implied exclusion of Section 438 of Cr.P.C,' the court maintained.
Ultimately, the court granted anticipatory bail to the man, noting that he had demonstrated bona fide intent to cooperate in the inquiry proceedings by duly appearing before the court on every date.
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