Dual Criminality Is About Conduct, Not Identical Labels: Delhi High Court Upholds Magisterial Inquiry in Canada Extradition Case

“Failure to Stop After Accident-Causing Death in Canada Mirrors Rash and Negligent Driving in India—Dual Criminality Is Satisfied”, In a significant ruling Delhi High Court dismissed a writ petition filed by an Indian national challenging the initiation of a magisterial inquiry under Section 5 of the Extradition Act, 1962, following a request by Canada for his extradition. The petitioner, Pawan Malik, sought to quash the Ministry of External Affairs’ (MEA) direction for inquiry, arguing that the Canadian offence of “Failure to Stop After Accident Resulting in Death” has no equivalent in Indian law, thereby violating the principle of dual criminality under Article 3 of the India–Canada Extradition Treaty.

Rejecting this contention, Justice Sanjeev Narula observed:

“What matters is not the name or marginal note of the foreign statute, but the conduct attributed to the accused. If the same conduct, when alleged in India, would amount to an offence punishable by more than one year’s imprisonment, dual criminality stands fulfilled.”

The Court thus upheld the MEA’s prima facie satisfaction that the Canadian charge aligns with Section 304A of the IPC—causing death by rash or negligent act—and allowed the extradition inquiry to proceed.

“Extradition Is Not a Trial—Only Prima Facie Satisfaction on Conduct Required”

This matter arose from the Canadian government's request, dated 11 April 2023, seeking extradition of Pawan Malik, accused in Ontario of fleeing the scene after a fatal vehicle accident that caused the death of a pedestrian, Ms. Kavita Choudhary.

Based on the materials submitted by Canada, including the factual dossier and relevant legal provisions, the MEA—by order dated 19 April 2023—recorded its satisfaction under Section 5 of the Extradition Act that the petitioner’s conduct, if committed in India, would amount to a punishable offence, specifically under Section 304A IPC. It, therefore, directed the Additional Chief Metropolitan Magistrate, Patiala House Courts, to conduct an inquiry.

The petitioner, through W.P.(CRL) 2787/2023, challenged this order, claiming that Section 320.16(3) of the Canadian Criminal Code, under which he is charged, criminalizes mere omission to stop after an accident, which, according to him, has no equivalent penal provision in India, making the MEA’s direction invalid and violative of his rights under Article 21 of the Constitution.

“Failure to Stop After Accident Is Not a Passive Omission—It Involves Recklessness and Culpability”

Dismissing the petitioner’s interpretation of Canadian law as “legally flawed”, the Court held:

“Section 320.16(3) of the Canadian Criminal Code does not criminalize a bare omission in isolation. It punishes failure to stop, identify, or render aid by someone who knows or is reckless as to whether they have caused a fatal accident.”

The Court clarified that the marginal note—“Failure to Stop After Accident”—does not define the offence and cannot be relied upon to reduce the charge to a mere omission. The petitioner was alleged to have been driving the vehicle involved in the accident and knowingly failed to assist the victim.

“On the materials provided, the petitioner is not a passive bystander, but the alleged driver who caused a fatal accident and fled. The conduct, if alleged in India, would squarely attract Section 304A IPC.”

“Dual Criminality Doesn’t Demand Identical Laws—Conduct Is the Key”

Article 3 of the India–Canada Extradition Treaty defines an “extradition offence” as one where the conduct is punishable in both countries by over one year’s imprisonment. Addressing the core legal contention, the Court held:

“Dual criminality does not require identical statutory language or classification. It requires that the underlying conduct be punishable in both jurisdictions.”

Referring to the allegations—operation of a vehicle, accident causing death, knowledge or recklessness, and failure to stop or assist—the Court found that such conduct would amount to an offence in India, and satisfies the dual criminality test under Article 3(1).

“Judicial Review at Section 5 Stage Is Limited—Inquiry Not a Trial”

The Court was also categorical in stating that at the pre-inquiry stage, it is not required to examine whether the extradition request is justified on merits, nor assess culpability or fairness of trial in Canada. Justice Narula held:

“At the Section 5 stage, the Ministry of External Affairs only determines whether a prima facie case exists and whether dual criminality is met. A full-fledged evaluation of guilt is not the function of either the Executive or this Court at this juncture.”

The Court refused to interfere in what it deemed a legally tenable administrative decision, affirming that “no infirmity has been shown in the MEA’s satisfaction”.

“Difference in Punishment Framework Is Irrelevant to Dual Criminality”

The petitioner had also pointed out that the Canadian offence under Section 320.16(3) is punishable with life imprisonment, while Section 304A IPC carries a maximum sentence of two years, arguing that this gulf made the two offences non-comparable.

The Court rejected this argument, holding:

“The length of sentence does not need to be identical. What is essential is that the offence is punishable by at least one year’s imprisonment in both countries. Section 304A IPC, though carrying a lesser maximum sentence, satisfies this requirement.”

Petition Dismissed—Trial Court Proceedings to Continue Uninfluenced

In its final directions, the Court dismissed the writ petition, vacated the interim stay order dated 25 September 2023, and allowed the extradition inquiry to proceed.

It, however, clarified:

“The observations made herein are confined to the adjudication of the present petition and shall not influence the Trial Court while deciding CT No. 882/2023, which shall be determined on its own merits and in accordance with law.”

This judgment reinforces the principle that extradition law focuses on comparable criminal conduct, not identical legal terminology, and that executive discretion in early stages of extradition must be respected unless shown to be arbitrary or illegal.

Date of Decision: 18 November 2025