1. Court’s decision
The Delhi High Court has dismissed a writ petition challenging the Ministry of External Affairs’ (MEA) order directing a magisterial inquiry into the extradition of an Indian national wanted by Canada for “failure to stop after accident resulting in death.” The Court upheld the MEA’s prima facie satisfaction under Section 5 of the Extradition Act, holding that the alleged conduct satisfies the requirement of dual criminality under Article 3 of the India–Canada Extradition Treaty.
The Court ruled that India’s extradition framework focuses on the conduct alleged, not the textual identity of foreign and domestic offences. It held that operating a vehicle involved in a fatal accident and fleeing without reasonable excuse would amount, at the very least, to an offence under Section 304A IPC (now Section 106 BNS). Therefore, a magisterial inquiry was lawful and far from a final determination of guilt or surrender.
The petition was dismissed and the interim stay vacated.
2. Facts
The petitioner, an Indian citizen, is wanted by Canadian authorities for prosecution under Section 320.16(3) of the Canadian Criminal Code—an offence described as “Failure to Stop After Accident Resulting in Death.” The charge arises from an alleged incident in Ontario where the petitioner, while operating a vehicle, was involved in an accident that caused the death of a pedestrian.
The Canadian High Commission issued a Note Verbale dated 11 April 2023 requesting extradition pursuant to Article 8 of the bilateral treaty. The MEA examined the material, found that the alleged conduct would attract Section 304A IPC if committed in India, and on 19 April 2023 directed a magisterial inquiry under Section 5 of the Extradition Act.
Following this, CT Case No. 882/2023 was registered before the ACMM, and non-bailable warrants were issued for the petitioner through CBI–INTERPOL channels. The petitioner challenged the MEA’s order via writ petition, arguing lack of dual criminality and violation of constitutional liberty.
3. Issues
The judgment required resolution of the following central issues:
- Whether “failure to stop after an accident resulting in death” under Canadian law has an equivalent Indian offence satisfying dual criminality under Article 3 of the Extradition Treaty.
- Whether a magisterial inquiry under Section 5 of the Extradition Act can be challenged at this preliminary stage.
- Whether the MEA acted within its statutory mandate while determining its prima facie satisfaction regarding dual criminality.
- Whether the petitioner’s emphasis on the marginal note of Section 320.16 distorted the nature of the offence.
4. Petitioner’s arguments
The petitioner argued that dual criminality was not satisfied because the Canadian offence penalises a failure to stop, not the causing of death. According to him, Indian law—specifically Section 304A IPC—only criminalises rash or negligent driving causing death, and not mere omission to remain at the scene.
He emphasised that the Canadian statute carries a penalty up to life imprisonment and includes a mandatory minimum fine, making it non-comparable to Section 304A IPC. He argued that the MEA wrongly conflated the “failure to stop” offence with causing death by negligence, thereby misapplying the treaty.
The petitioner further contended that the MEA’s satisfaction under Section 5 was flawed, that ordering a magisterial inquiry without an Indian equivalent of the foreign offence violates Article 21, and that India cannot extradite its citizens for a crime not recognised under its domestic law.
5. Respondent’s arguments
The MEA and Union of India submitted that the writ petition was premature and misconceived. At this stage, the government had only ordered a statutory inquiry, not the petitioner’s extradition. The magisterial inquiry exists precisely to examine prima facie evidence under the Extradition Act.
The government argued that the petitioner’s reliance on the title “Failure to Stop After Accident” was misleading. Section 320.16(3) requires the driver to have been operating the vehicle, to have knowledge or recklessness as to involvement in an accident, and to fail to stop, identify, or help the victim. Viewed as a whole, the conduct includes culpability in relation to the accident itself.
It was submitted that the alleged conduct corresponds to Section 304A IPC or Section 106 BNS, offences punishable beyond one year. The Treaty requires equivalence in conduct, not identity of statutory language. Therefore, dual criminality is satisfied and the MEA’s decision was legally sound.
6. Analysis of the law
The Court emphasised that dual criminality under Article 3 is conduct-based. The relevant inquiry is whether the same conduct, if committed in India, would amount to an offence punishable by more than one year. The Court clarified that exact equivalence of statutory language or penalty structure is unnecessary.
It noted that Section 320.16(3) of the Canadian Code must be read with subsection (1), which covers a driver who knows or is reckless as to involvement in an accident and fails without reasonable excuse to stop or assist. The petitioner’s attempt to isolate the “failure to stop” element was rejected as a distortion.
The Court reasoned that driving a vehicle involved in a fatal accident and fleeing without rendering assistance would, in India, amount at least to causing death by a rash or negligent act under Section 304A IPC—punishable up to two years imprisonment. As the alleged conduct satisfies the threshold of being punishable by more than one year, dual criminality is fulfilled.
The Court also underscored that Section 5 of the Extradition Act requires only prima facie satisfaction to commence inquiry, not conclusive findings. The magisterial inquiry under the Extradition Act is the proper stage for examining factual disputes. At the Section 5 stage, judicial review is extremely narrow.
7. Precedent analysis
While the judgment does not catalogue multiple external precedents, it anchors its reasoning in established extradition jurisprudence:
• Dual criminality is evaluated by comparing conduct, not statutory labels — applied expressly through Article 3 interpretation.
• Marginal notes cannot dictate substantive meaning of criminal provisions — applied to reject petitioner’s reliance on Section 320.16’s title.
• MEAs Section 5 satisfaction is a limited administrative threshold, not an adjudication — consistent with long-standing rulings on extradition processes.
• Courts should avoid pre-empting the magisterial inquiry, which is the statutory forum for factual evaluation.
The Court applied these principles to uphold MEA’s decision.
8. Court’s reasoning
The Court held that the petitioner artificially truncated the Canadian offence by treating it as an “omission offence,” disregarding the essential element of being the alleged driver whose vehicle caused the fatality. The offence, properly construed, includes conduct that Indian criminal law squarely punishes.
The Court found no infirmity in the MEA’s conclusion that the alleged conduct corresponds to Section 304A IPC. As the punishment exceeds one year, Article 3 is satisfied.
The Court emphasised that challenges to extradition cannot be mounted at the Section 5 stage unless the MEA’s decision is patently illegal, which the petitioner failed to demonstrate. The writ petition prematurely sought to derail the statutory inquiry.
Accordingly, the petition was dismissed and the interim stay vacated.
9. Conclusion
The Delhi High Court confirmed that dual criminality is fulfilled and upheld the MEA’s decision to initiate a magisterial inquiry into the Canadian extradition request. The Court refused to interfere at this early stage, emphasising that extradition jurisprudence does not permit technical objections to obstruct statutory processes. The petitioner’s liberty remains subject to the inquiry, but the legal threshold for commencing extradition proceedings has been met.
10. Implications
This ruling reinforces India’s commitment to its extradition treaty obligations and clarifies that dual criminality is a conduct-based test. Petitioners cannot defeat extradition inquiries by isolating marginal elements of foreign offences or overemphasising distinctions in penal frameworks.
The judgment strengthens the extradition mechanism under the Extradition Act, clarifying that Section 5 orders are preliminary and challengeable only on narrow grounds. It signals that India will treat road-fatality offences seriously in cross-border criminal cooperation, and that Indian nationals cannot evade treaty obligations under the guise of technical distinctions.
Case Law References
Although the judgment is primarily treaty- and statute-focused, it draws upon these well-established principles:
• Marginal notes do not control statutory meaning — applied to Section 320.16.
• Dual criminality compares conduct, not identical penal language — applied to Article 3.
• Section 5 Extradition Act satisfaction is preliminary — reinforces previous jurisprudence on administrative threshold.
• Judicial review over extradition initiation is limited — applied to uphold MEA’s discretion.
FAQs
1. What is dual criminality in extradition law?
It is the requirement that the conduct alleged must be punishable in both countries by more than one year. The Court held that driving involved in a fatal accident and fleeing satisfies this test in India and Canada.
2. Can a Section 5 Extradition Act order be challenged in writ jurisdiction?
Only in very rare cases. The Court held that MEA’s prima facie satisfaction is a limited administrative step and cannot be interfered with unless patently illegal.
3. Is “failure to stop after accident resulting in death” an offence under Indian law?
While not identically worded, the underlying conduct corresponds to Section 304A IPC (or Section 106 BNS), satisfying the conduct-based dual criminality requirement.
