Mr. Gautam Khazanchi, Mr. Vaibhav Dubey, Mr. Anuj Aggarwal and Mr. Vinayak Chawla, Advocates v. UNION OF INDIA & ANR

Judgment

1. The Petitioner invokes Section 482 read with Section 528 of Bhartiya Nagarik Suraksha Sanhita, 20231 (corresponding to Section 438 and 482 of the Code of Criminal Procedure, 19732, respectively) to assail the order dated 3rd April, 2025, passed by the Additional Chief Judicial Magistrate-01, Patiala House Court, Delhi in Complaint Case 41367/2024 Signature Not Verified 1 “BNSS” 2 “Cr.P.C./Code” Digitally Signed By:ANITA BAITAL Signing Date:01.07.2025 19:18:24 BAIL APPLN. 1375/2025 Page 1 of 35 titled Union of India v. Shankesh Mutha and proceedings emanating therefrom. By the said order, the Petitioner’s application seeking anticipatory bail under Section 482 of the BNSS read with Section 25 of the Extradition Act, 19623 was dismissed and the Petitioner was directed to immediately surrender before the Court or before CBI. The present petition therefore seeks (i) setting-aside of the impugned order dated 3rd April, 2025 and all proceedings emanating therefrom, and (ii) pre-arrest protection pending the extradition proceedings in the said complaint case.

2. Briefly, the facts giving rise to the present petition are summarised as follows: 2.1 The Petitioner, an Indian citizen, joined Flawless Co. Ltd.4, an entity based out of Bangkok, Thailand, in 2013 in Administration of Foreign Affairs. After completing his tenure of around 8 years, he returned to India. The Petitioner contends that the officials of the company were fully aware that he would return to India after his tenure.

2.2 In June 2021, Flawless Co. Ltd. filed a complaint against the Petitioner in Thailand, alleging that he stole 8 diamonds worth around

15.16 million baht (≈ ₹3.89 crore) and fled to India. The officials of the company contend that the Petitioner misappropriated the diamonds and upon being confronted, he admitted his guilt to the company on 25th May, 2021, but apprehending arrest, he fled to India on 27th May, 2021.

2.3 Pursuant to a criminal complaint against him, the Southern Bangkok Criminal Court Thailand issued a warrant for his arrest, and Thai prosecutors commenced the extradition efforts that underpin the ongoing proceedings before the Patiala House Courts, Delhi. Signature Not Verified 3 “Extradition Act” 4 “the Company” Digitally Signed By:ANITA BAITAL Signing Date:01.07.2025 19:18:24 BAIL APPLN. 1375/2025 Page 2 of 35

2.4 On 25.09.2024, the Ministry of External Affairs, Government of India passed an order informing that the Kingdom of Thailand had made a request for the extradition of the Petitioner and thus, as per the provisions of the Extradition Act, the Additional Chief Judicial Magistrate-01, Patiala House Court, Delhi5 was notified as the Magistrate Court to conduct an inquiry into the extradition request and determine whether a prima facie case was made out against the Petitioner.

2.5 Pursuant thereto, Respondent No. 1 filed an application under Section 5 of the Act seeking issuance of warrants against the Petitioner and enclosing therewith, the order passed by the Government of India, Thai extradition request along with Thai arrest warrant, complaint, and supporting dossier.

2.6 By order dated 3rd October, 2024, the Magistrate issued Non- Bailable Warrants against the Petitioner, through CBI Interpol and listed the matter on 12th December, 2024 for further proceedings. On the said date, the Petitioner appeared voluntarily before the Magistrate and filed an application for cancellation of Non-Bailable Warrants and grant of anticipatory bail. He urged that, although Section 6 of the Extradition Act permits the court to compel attendance by warrant, the objective of ensuring his presence during the inquiry could be achieved without resorting to issuance of fresh coercive process against him. Prima facie, finding merit in his submission, the Magistrate withheld re-issuance of the warrants and directed the applicant to remain personally present on the next date of hearing.

2.7 The applicant complied with that direction and appeared on each subsequent date of listing. Signature Not Verified 5 “Magistrate” Digitally Signed By:ANITA BAITAL Signing Date:01.07.2025 19:18:24 BAIL APPLN. 1375/2025 Page 3 of 35

2.8 Subsequently, on 3rd April, 2025, the Magistrate dismissed the anticipatory bail application of the Petitioner, leading to filing of the present application before this Court, along with an interim application seeking restraint against coercive action. 3. On 7th April, 2025, taking note of the Petitioner’s participation in the extradition inquiry and his undertaking to cooperate with the proceedings, this Court directed that no coercive steps be taken against him, subject to the condition that he deposit his passport with the Registry. The Petitioner was further directed to remain present before the inquiry Court on all scheduled dates and to abstain from adopting any dilatory tactics. The record reflects that these directions have been duly complied with by the Petitioner.

4. Although the impugned denial of pre-arrest bail proceeds on merits rather than on maintainability, the Respondents have nonetheless raised a threshold objection to the very maintainability of the present petition. Their contention is that the scheme of the Extradition Act, read with the provisions of the Cr.P.C (now BNSS ), contemplates grant of bail only after the fugitive has been formally arrested. According to them, once the designated Magistrate initiates inquiry under the Extradition Act, the grant of any pre-arrest protection falls outside the contours of the statutory framework. In addition to this objection, the Respondents also seek to defend the impugned order on merits and urge dismissal of the present petition. Signature Not Verified Digitally Signed By:ANITA BAITAL Signing Date:01.07.2025 19:18:24 BAIL APPLN. 1375/2025 Page 4 of 35

SUBMISSIONS OF THE PARTIES Petitioner’s Submissions

5. Mr. Gautam Khazanchi, counsel for the Petitioner, contests the preliminary objection on maintainability and advances the following submissions:

5.1 The objection of Respondent No. 1, that the scheme of the Extradition Act does not envisage grant of anticipatory bail, is misconceived. Section 438 of the Code embodies a crucial safeguard for the preservation of personal liberty under Article 21 of the Constitution of India. The provision is rooted in the constitutional presumption of innocence and is designed to ensure that individuals are not unjustly deprived of liberty at the pre-trial stage. There is nothing in the text or scheme of the Extradition Act that expressly or by necessary implication excludes the applicability of this protection. In this regard, reliance is placed on the decision of the Constitution Bench of the Supreme Court in Sushila Aggarwal v State of (NCT of Delhi) & Anr.,6 which reaffirms the well-settled proposition that anticipatory bail constitutes an integral part of the constitutional guarantee of personal liberty.

5.2 Any restriction or curtailment on the application of Section 438 must rest on an express, unambiguous statutory prohibition. In the absence of any such express bar, the power to grant anticipatory bail, being an essential safeguard flowing from the fundamental right to personal liberty under Article 21 of the Constitution, cannot be read down or restricted by implication. Consequently, the protections under Section 438 extend to extradition proceedings as well. In support of this proposition, reliance is Signature Not Verified 6 (2020) 5 SCC 1 Digitally Signed By:ANITA BAITAL Signing Date:01.07.2025 19:18:24 BAIL APPLN. 1375/2025 Page 5 of 35 placed on the judgements of Sushila Aggarwal and Balchand Jain v. State of M.P.7

5.3 Section 25 of the Extradition Act enables a Magistrate dealing with a fugitive criminal to grant bail in accordance with the provisions of Cr.P.C 1973, as if the individual were accused of an offence committed within India. It also vests the Magistrate with the same powers and jurisdiction as a Court of Session. While the provision refers to persons “arrested or detained,” it does not expressly limit the applicability of other bail-related provisions of the Cr.P.C., including Section 438. There is no textual prohibition, express or implied, against anticipatory bail in extradition matters.

5.4 The Respondent’s contention that the expression “arrested” or “detained” in Section 25 of the Extradition Act, excludes the right to anticipatory bail, is misconceived. Section 438 of the Cr.P.C. allows a person to seek the remedy of a bail order when they are apprehending arrest, at the same time, the Section contemplates the ‘release’ of such a person on bail only in the event of arrest. The grant of such an order, however, is prospective and pre-emptive in nature, triggered by apprehension of arrest.

5.5 The Supreme Court in Balchand Jain, while dealing with a similar objection relating to maintainability of anticipatory bail under Rule 18 of the Defence & Internal Security of India Rules, 1971, held that there can be no question of a person being released on bail until he has been arrested or detained in custody. Section 438 of Cr.P.C., the Court explained, exists precisely so that, the instant an arrest is effected, the individual is enlarged on bail. Signature Not Verified 7 (1976) 4 SCC 572 Digitally Signed By:ANITA BAITAL Signing Date:01.07.2025 19:18:24 BAIL APPLN. 1375/2025 Page 6 of 35

5.6 Furthermore, as per Section 4(2) of the Cr.P.C., the procedure enshrined in the Cr.P.C. shall also apply to special statutes, unless its applicability is expressly barred by the said special statute. Reliance is placed on the judgements of Ashok Munnilal Jain & Anr. v. ED8, ED v. Deepak Mahajan9 and Asmita Agrawal v. ED & Ors.10

5.7 Section 7 of the Extradition Act which opens with the words “appears or brought before”, mirrors Section 436 and 437 of the Cr.P.C. Under the Code, an accused who has not been arrested during investigation may appear voluntarily before the court concerned, apply for bail, and be deemed to be in the court’s custody without first being remanded to judicial custody. The identical phrasing in Section 7 of the Extradition Act, which provides for the procedure to be followed by the Magistrate, reveals that the Act contemplates a situation where a person may not be required to be arrested. The Act provides that upon conclusion of the inquiry, if the Magistrate arrives at a prima facie decision in support of extradition to a foreign state, only then such a person would be committed to custody under Section 7(4) of the Act, to await the orders of the Central Government.

5.8 On receipt of a request from the Central Government under Section 5 of the Act, it is not necessary that Non-Bailable Warrants must be issued by the Magistrate under Section 6. Judicial discretion must be exercised after examining the material placed on record to decide whether such a coercive process is required to secure the fugitive’s attendance. Reliance is placed on Tribhuvan Kumar Prakash v. Union of India11 to contend that