Sanchayita Lahkar

The High Court of Delhi Single Bench of Justice Sanjeev Narula held that the remedy of anticipatory bail under Section 438 of the Code of Criminal Procedure, 1973 (now Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023) is maintainable even in extradition proceedings initiated under the Extradition Act, 1962. The Court set aside the order of the Magistrate denying anticipatory bail to the applicant and directed that in the event of arrest, the applicant shall be released on bail. The Court issued the pre-arrest protection subject to specified conditions and observed that there was no convincing material to suggest that the applicant posed a flight risk or intended to obstruct the extradition inquiry.

The petitioner, an Indian citizen, approached the High Court invoking Section 482 read with Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (corresponding to Sections 438 and 482 of the Code of Criminal Procedure, 1973), seeking to set aside an order dated 3 April 2025 passed by the Additional Chief Judicial Magistrate-01, Patiala House Court, Delhi. The said order dismissed the petitioner's application for anticipatory bail and directed his immediate surrender before the Court or before the Central Bureau of Investigation (CBI).

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The extradition inquiry originated from a requisition received by the Ministry of External Affairs from the Kingdom of Thailand alleging that the petitioner had committed theft of eight diamonds valued at approximately ₹3.89 crore. The complaint, filed by Flawless Co. Ltd., a Bangkok-based company where the petitioner had worked, alleged that he misappropriated the diamonds and fled to India on 27 May 2021, after admitting guilt on 25 May 2021.

Following the complaint, the Southern Bangkok Criminal Court issued a warrant for his arrest. Subsequently, on 25 September 2024, the Government of India received an extradition request from Thailand, prompting it to notify the Additional Chief Judicial Magistrate-01, Patiala House Court, Delhi to conduct an inquiry under the Extradition Act.

Respondent No. 1 (Union of India) filed an application under Section 5 of the Extradition Act seeking issuance of warrants against the petitioner and enclosed with it the extradition request, arrest warrant, complaint, and related documents. On 3 October 2024, the Magistrate issued Non-Bailable Warrants through the CBI-Interpol. On 12 December 2024, the petitioner appeared voluntarily and sought cancellation of the NBWs and anticipatory bail.

While the Magistrate initially withheld the re-issuance of warrants and directed the petitioner to remain present on future dates, the anticipatory bail application was eventually dismissed on 3 April 2025. The petitioner then moved the High Court, which granted interim protection on 7 April 2025, subject to surrendering of the passport and continued cooperation.

The petitioner argued that Section 438 of the Cr.P.C. is a constitutional safeguard and does not stand excluded under the Extradition Act. It was contended that Section 25 of the Act, while referring to individuals "arrested or detained," does not expressly exclude anticipatory bail. Citing the judgments in Sushila Aggarwal v. State (NCT of Delhi) and Balchand Jain v. State of M.P., counsel submitted that anticipatory bail constitutes a substantive right derived from Article 21 of the Constitution.

Additionally, the petitioner argued that issuance of NBWs under Section 6 of the Extradition Act is not mandatory and should depend on judicial discretion. Reliance was placed on Tribhuvan Kumar Prakash v. Union of India to contend that coercive processes such as arrest warrants must be judicially assessed.

The respondent, representing the Union of India, opposed the maintainability of the anticipatory bail application. It was argued that the Extradition Act is a special statute intended to facilitate extradition and honour treaty obligations, and that its provisions override general procedures under the Cr.P.C. It was further contended that Section 25 of the Extradition Act explicitly applies only post-arrest and hence pre-arrest protection stands impliedly excluded.

Citing Bhavesh Jayanti Lakhani v. State of Maharashtra, the respondent argued that the arrest procedure must strictly follow the statute. It was further contended that anticipatory bail would defeat the object of securing the custody of fugitive criminals for extradition.

The respondent also relied on In Re: Rajan Pillai, a Kerala High Court decision that interpreted Section 25 as applicable only after arrest or detention. It was submitted that the constitutional guarantee under Article 21 must operate within the boundaries of the statutory framework and cannot override legislative intent.

The High Court examined the scheme of the Extradition Act, provisions of the Cr.P.C., and constitutional principles protecting personal liberty. It observed that anticipatory bail is not inconsistent with the Extradition Act and that both statutes can coexist.

The Court stated “Section 25 of the Extradition Act, cannot be construed as precluding the application of anticipatory bail to extradition proceedings.”

The Court held that Section 438 of the Cr.P.C., now Section 528 BNSS, is a constitutional safeguard, stating “Restrictions on the scope of pre-arrest bail must rest on a clear statutory mandate, not on inference.”

Regarding the applicability of Cr.P.C. to special statutes, the Court noted “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.”

In addressing the respondent's reliance on the phrase "arrested or detained," the Court remarked “Such a reading finds no support in the statutory text and would run afoul of the guiding principle laid down in Sibbia, that legislatively conferred liberties are not to be curtailed by inference.”

The Court clarified that Section 438 is not inconsistent with extradition provisions, stating “Section 25 governs the grant of bail once arrest has occurred; Section 438 safeguards liberty by intervening before arrest. Their coexistence presents no doctrinal conflict.”

While recognising the special status of the Extradition Act, the Court stated “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 Court disagreed with the respondent’s interpretation of legislative history, stating, “To infer such exclusion from mere silence would subvert the object of the amendment, which was to preserve procedural continuity and legal coherence, not to curtail personal liberty by implication.”

The Court held that the power to grant anticipatory bail extends to extradition proceedings and remarked “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.”

The Court allowed the application and set aside the order of the Magistrate denying anticipatory bail. It directed that in the event of arrest; the petitioner shall be released on bail upon furnishing a bail bond of Rs. 10,00,000 with two sureties of like amount, subject to the satisfaction of the Magistrate.

The Court directed that the petitioner shall continue to participate and cooperate with the inquiry as and when directed by the Magistrate and make himself available for any interrogation by investigating authorities.

The petitioner was ordered not to leave the territorial boundaries of India, and the passport already deposited with the Registry of the Court was directed to remain in custody.

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It was further directed that the petitioner shall not make any inducement, threat, or promise to any person acquainted with the facts of the case, and shall give his mobile number to the investigating authority, keeping the phone switched on and remaining accessible.

The Court clarified that if there is any complaint or violation of the conditions, the State may move for cancellation of bail. It further stated that any observations made in the order shall not influence the inquiry or be treated as an opinion on the merits of the case.

Advocates Representing the Parties:

For the Petitioner: Mr. Gautam Khazanchi, Mr. Vaibhav Dubey, Mr. Anuj Aggarwal, and Mr. Vinayak Chawla, Advocates

For the Respondents: Mr. Amit Tiwari, Central Government Standing Counsel with Mr. Chetanya Puri, Mr. Abhigyan Siddhant, Ms. Ayushi Srivastava, and Mr. Ayush Tanwar, Advocates for UOI; Mr. N.K. Matta, Special Public Prosecutor with Mr. Siddharth Kaushik and Mr. Mohd. Faizan Khan, Advocates for UOI; Ms. Anubha Bhardwaj, Special Public Prosecutor with Ms. Muskan Narang, Advocate for CBI; Mr. Rudresh Kumar and Mr. Karan Shankla, Advocates

Case Title: Shankesh Mutha v. Union of India & Anr.

Neutral Citation: 2025: DHC:5140

Case Number: BAIL APPLN. 1375/2025 & CRL.M.A. 10692/2025

Bench: Justice Sanjeev Narula