1967 (4) TMI 217 - HC - Indian Laws

Summary

Issues Involved:
1. Jurisdiction of the Chief Presidency Magistrate to issue the warrant of arrest.
2. Validity of the procedure adopted by the Chief Presidency Magistrate.
3. Legality of the requisition made by the Central Government to Hong Kong.
4. Effect of the Hong Kong Magistrate's order and the role of the Central Government.

Detailed Analysis:

1. Jurisdiction of the Chief Presidency Magistrate to Issue the Warrant of Arrest:
The first point of contention was whether the Chief Presidency Magistrate had the jurisdiction to issue a warrant of arrest against Jugal Kishore More in the manner he did on July 30, 1965. The warrant was intended to be executed in Hong Kong, which is outside the territory of India. The judgment notes that the Code of Criminal Procedure (Cr. P.C.) does not authorize such a warrant to be executed outside India. Section 75 of the Cr. P.C. allows for the issuance of a warrant but does not extend its execution beyond Indian territory. The judgment emphasizes that the Chief Presidency Magistrate's actions were not supported by any provision in the Cr. P.C. and thus constituted a "colorable exercise of his power." The judgment concludes that the magistrate did not have the jurisdiction to issue the warrant in the manner he did.

2. Validity of the Procedure Adopted by the Chief Presidency Magistrate:
The procedure adopted by the Chief Presidency Magistrate involved sending the warrant to the State Home Secretary for onward transmission to the Government of India, which would then seek extradition from Hong Kong. This procedure was based on a circular issued by the Ministry of External Affairs, which was not a statutory instrument. The judgment criticizes this approach, noting that the circular had no statutory force and could not validate the steps taken by the magistrate. The judgment points out that the circular was not binding on the judiciary and that the magistrate should have followed the law rather than the executive instructions. The judgment finds the procedure adopted by the magistrate to be improper and unauthorized by law.

3. Legality of the Requisition Made by the Central Government to Hong Kong:
The judgment examines whether the Central Government had the legal basis to make a requisition to Hong Kong for the extradition of More. It notes that the Extradition Act, 1962, which came into force on January 5, 1963, governs extradition matters. The Act requires a notified order for its provisions to apply to a commonwealth country like Hong Kong. The judgment finds that no such notified order was issued, making the requisition by the Central Government illegal. The judgment emphasizes that the Central Government must act within the framework of the Extradition Act and cannot make requisitions de hors the statute.

4. Effect of the Hong Kong Magistrate's Order and the Role of the Central Government:
The judgment addresses the order of the Hong Kong Magistrate, who proceeded under the Fugitive Offenders Act, 1881, treating India as a British possession. The judgment criticizes the Indian authorities for not withdrawing their request for extradition after learning that the Hong Kong Magistrate was proceeding under an outdated law. The judgment expresses concern over the lack of awareness and the improper conduct of the Indian authorities, which undermined the sovereignty and laws of India. The judgment concludes that the actions of the Central Government and the Chief Presidency Magistrate were illegal and invalid.

Conclusion:
The judgment makes it clear that the Chief Presidency Magistrate did not have the jurisdiction to issue the warrant in the manner he did, the procedure adopted was unauthorized by law, the requisition by the Central Government was illegal, and the actions of the authorities undermined the sovereignty and laws of India. The rule was made absolute, and the warrant of arrest dated July 30, 1965, along with all subsequent proceedings, was quashed.