Delhi High Court Upholds Magisterial Inquiry in Extradition Case, Dismisses Petition by Pawan Malik

Court Rules Dual Criminality Requirement Satisfied Under India-Canada Extradition Treaty for "Failure to Stop After Accident Resulting in Death"

In a significant ruling, the Delhi High Court has dismissed the petition filed by Pawan Malik challenging the magisterial inquiry ordered by the Union of India under the Extradition Act, 1962. The court upheld the Ministry of External Affairs' decision to initiate proceedings based on the extradition request from Canada for Malik's alleged involvement in a fatal motor vehicle accident.

Justice Sanjeev Narula, presiding over the case, emphasized the principle of dual criminality under Article 3 of the India-Canada Extradition Treaty. The court concluded that the conduct alleged against Malik, involving "Failure to Stop After Accident Resulting in Death," if committed in India, would attract prosecution under Section 304A of the Indian Penal Code, which deals with causing death by a rash or negligent act.

The judgment clarified that the emphasis in extradition matters is on the conduct alleged rather than the identical statutory provisions in both jurisdictions. The court noted that the alleged conduct, as described in the Canadian request, constitutes an offence in India punishable by more than one year's imprisonment, thereby satisfying the dual criminality requirement.

Malik's legal team argued that the offence under Canadian law did not have a corresponding provision under Indian law, particularly focusing on the failure to stop after an accident. However, the court rejected this contention, stating that the conduct attributed to Malik involved driving the vehicle that caused the accident, which aligns with offences under Indian law.

The Ministry of External Affairs, representing the Union of India, maintained that the extradition request was processed in accordance with legal protocols. The court supported this stance, affirming that the satisfaction recorded by the Ministry under Section 5 of the Extradition Act was valid and the magisterial inquiry was rightly directed.

The judgment also addressed the procedural aspect, indicating that the decision to direct a magisterial inquiry was an initial step and not a final extradition order. Consequently, the petition was dismissed, and the interim order granting relief to Malik was vacated.

As the case proceeds, the magisterial inquiry will determine whether a prima facie case exists against Malik, with due regard to the statutory safeguards of the Extradition Act.

This ruling reinforces the importance of bilateral treaties and the adherence to procedural norms in extradition matters, highlighting the court's role in balancing international obligations with domestic legal frameworks.

Bottom Line:

Extradition - The principle of dual criminality under the India-Canada Extradition Treaty focuses on the conduct alleged and not on the textual identity of statutory provisions in the two jurisdictions. Conduct constituting "Failure to Stop After Accident Resulting in Death" under Canadian law is comparable to an offence under Indian law punishable by more than one year of imprisonment.

Statutory provision(s): Extradition Act, 1962 Section 5, Extradition Treaty between India and Canada Article 3, Section 304A IPC, Article 226 of the Constitution of India, Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023

Pawan Malik v. Union of India, (Delhi) : Law Finder Doc Id # 2810223