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TMI Blog1969 (1) TMI 86X X X X Extracts X X X X X X X X Extracts X X X X ..... resence was required for trial. 2. The Chief Presidency Magistrate held an enquiry and recorded an order on July 19, 1965, that on the materials placed before him, a prima facie case was made out of a criminal conspiracy, was hatched in Calcutta within his jurisdiction, and More was one of the conspirators . He accordingly directed that a non-bailable warrant in Form II Schedule V of the CrPC be issued for the arrest of More, and that the warrant be sent to the Secretary Home (Political) Department, Government of West Bengal, with a request to take all necessary steps to ensure execution of the warrant. A copy of the warrant was sent to the Commissioner of Police, Calcutta, for information. In the warrant More was described as Manager, Premko Traders of 7, Wyndhan Street and 28, King's Road, Hong Kong. The Chief Presidency Magistrate forwarded to the Government of West Bengal, the warrant with attested copies of the evidence recorded at the enquiry and photostat copies of documents tendered by the prosecution in evidence in accordance with the procedure laid down in Government of India, Ministry of External Affairs, letter No. K/52/ 6131/41 dated 21st May, 1955 . The warr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4. On May 16, 1966, Hanuman Prasad-father of More- moved in the High Court of Calcutta a petition Under Section 439 of the CrPC and Article 227 of the Constitution for an order quashing the warrant of arrest issued against More and all proceedings taken pursuant thereto and restraining the Chief Presidency Magistrate and the Union of India from taking any further steps pursuant to the said warrant of arrest and causing More to be extradited from Hong Kong to India. The petition was heard before a Division Bench of the High Court. A. Roy, J., held that the warrant issued by the Chief Presidency Magistrate was not illegal and the procedure followed for securing extradition of More was not irregular. In his view the assumption made by the Central Magistrate, Hong Kong, that for the purpose of the Fugitive Offenders Act, India was a British possession was irrelevant since that was only a view expressed by him according to the municipal law of Hong Kong, and by acceding to the requisition for extradition and surrender made upon that country by the Government of India in exercise of sovereign rights the status of the Republic of India was not affected. 5. In the view of Gupta, J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enders may be extradited, but since the Government had not issued any notification under that clause in exercise of the executive power, the Government could not attempt in violation of the statutory procedure seek extradition which the law of India did not permit. The learned Judge accordingly ordered that the warrant of arrest dated July 30, l 965, issued by the Chief Presidency Magistrate, Calcutta, against More and all subsequent proceedings taken by the Chief Presidency Magistrate and the other respondents be quashed. The State of West Bengal has appealed to this Court with special leave. 6. Extradition is the surrender by one State to another of a person desired to be dealt with for crimes of which he has been accused or convicted and which are justiciable in the courts of the other State. Surrender of a person within the State to another State-whether a citizen or an alien-is a political act done in pursuance of a treaty or an arrangement ad hoc. It is founded on the broad principle that it is in the interest of civilized communities that crimes should not go unpunished, and on that account it is recognised as a part of the comity of nations that one State should ordinari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ement or authentication of a warrant the country in which an offender has taken refuge signifies its willingness to lend its assistance, in implementation of the treaties or international commitments and to secure the arrest of the offender. The offender arrested pursuant to the warrant or endorsement is brought before the Court of the country to which the requisition is made, and the Court holds an inquiry to determine whether the offender may be extradited. International commitment or treaty will be effective only if the Court of a country in which the offender is arrested after enquiry is of the view that the offender should be surrendered. 8. The functions which the Courts in the two countries perform are therefore different. The Court within whose jurisdiction the offence is committed decides whether there is prima facie evidence on which a requisition may be made to another country for surrender of the offender. When the State to which a requisition is made agrees consistently with its international commitments to lend its aid the requisition is transmitted to the Police authorities, and the Courts of that country consider, according to their own laws whether the offender ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as if throughout the Act the British possession were substituted for the United Kingdom, but with certain modifications in procedure. 13. Under Part I of the Fugitive Offenders Act 1881 a warrant issued in one part of the Crown's Dominion for apprehension of a fugitive offender, could be endorsed for execution in another Dominion. After the fugitive was apprehended he was brought before the Magistrate who heard the case in the same manner and had the same jurisdiction and powers as if the fugitive was charged with an offence committed within the Magistrate's jurisdiction. If the Magistrate was satisfied, after expiry of 15 days from the date on which the fugitive was committed to prison, he could make an order for surrender of the fugitive on the warrant issued by the Secretary of State or an appropriate officer. There was also provision for inter-colonial backing of warrants within groups of British possessions to which Part I of the Fugitive Offenders Act, 1881 has been applied by Order in Council. In such groups a more rapid procedure for the return of fugitive offenders between possessions of the same group was in force. Where in a British possession , of a g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same operation in relation to India, and to persons and things in any way belonging to or connected with India, as it would have had if India had not become a republic. . . . (3) His Majesty may by Order in Council make provision for such satisfaction of any existing law to which this Act extends as may appear to him to be necessary or expedient in view of India's becoming a republic while remaining a member of the Commonwealth, and Sub-section (1) of this section shall have effect in relation to any such law as modified by such an order in so far as the contrary intention appears in the order. An Order in Council under this section- (a) may be made either before or after India becomes a republic, and may be revoked or varied by a subsequent Order in Council; and (b) shall be subject to annulment in pursuance of a resolution of either House of Parliament. 15. In 1954 this Court was called upon to decide a case relating to extradition to Singapore, a British Colony, of a person alleged to be a fugitive offender The State of Madras v. C. G. Menon and Anr. [1955]1SCR280 . In that case Menon and his wife were apprehended and produced before the Chief Presidency ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a foreign territory so far as other British Possessions are concerned and the extradition of persons taking asylum in India, having committed offences in British Possessions, could only be dealt with by an arrangement between the Sovereign Democratic Republic of India and the British Government and given effect to by appropriate legislation. The Union Parliament has not so far enacted any law on the subject and it was not suggested that any arrangement has been arrived at between these two Governments. The Indian Extradition Act, 1903, has been adapted but the Fugitive Offenders Act, 1881, which was an Act of the British Parliament has been left severely alone. The provisions of that Act could only be made applicable to India by incorporating them with appropriate changes into an Act of the Indian Parliament and by enacting an Indian Fugitive Offenders Act. In the absence of any legislation on those lines, it seems difficult to hold that Section 12 or Section 14 of the Fugitive Offenders Act has force in India by reason of the provisions of Article 372 of the Constitution. The whole basis for the applicability of Part II of the Fugitive Offenders Act has gone : India is no longer a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... India in the United Kingdom/Dominion concerned and will be accompanied by the warrant issued by the Magistrate at (a) of para 2 above and other documents received therewith. 16. The Chief Presidency Magistrate Calcutta made out the warrant for the arrest of More pursuant to that notification and sent the warrant to the Secretary, Home (Political) Department, Government of West Bengal. Validity of the steps taken in accordance with the notification by the Chief Presidency Magistrate is questioned in this appeal. 17. To complete the narrative, it is necessary to refer to the Extradition Act 34 of 1962. The Parliament has enacted Act 34 of 1962 to consolidate and amend the law relating to the extradition of fugitive criminals. It makes provisions by Ch. II for extradition of fugitive criminals to foreign States and to commonwealth countries to which Ch. III does not apply. Chapter III deals with the return of fugitive criminals to commonwealth countries with extradition arrangements. By Section 12 it is provided : (1) This Chapter shall apply only to any such commonwealth country to which, by reason of an extradition arrangement entered into with that country, it may seem ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fugitive offender from Hong Kong, and no attempt was made in that behalf. 18. Validity of the action taken by the Chief Presidency Magistrate must therefore, be adjudged in the light of the action taken pursuant to the notification issued by the Government of India on May 21, 1955. Counsel for the respondent More urged that the warrant issued by the Chief Presidency Magistrate was intended to be and could in its very nature be a legal warrant enforceable within India : it had no extra-territorial operation, and could not be enforced outside India, and when the Central Magistrate Hong Kong, purported to endorse that warrant for enforcement within Hong Kong he had no authority to do so. But this Court has no authority to sit in judgment over the order passed by the Hong Kong Central Magistrate. The Magistrate acted in accordance with the municipal law of Hong Kong and agreed to the surrender of the offender : his action cannot be challenged in this Court. 19. It may also be pointed out that Form II of the warrant prescribed in Schedule V of the CrPC only issues a direction under the authority of the Magistrate to a Police Officer to arrest a named person and to produce him befo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng to obtain extradition of the offender. But on the principle of Vinayak Damodar Savarkar's case, I.L.R.35 Bom. 225 the contention about the invalidity of the arrest cannot affect the jurisdiction of the Courts in India to try More if and when he is brought here. 21. The Indian Extradition Act 15 of 1903 which was enacted to provide for the more convenient administration of the English Extradition Act, 1870 1873 and the Fugitive Offenders Act. 1881, remained in operation. But after January 26, 1950, India is no longer a British Possession. In C. G. Menon's case [1955]1SCR280 : [1955]1SCR280 it was decided by this Court that application of Sections 12 and 14 of the Fugitive Offenders Act, 1881, for surrendering an offender to a Commonwealth country in pursuance of a requisition under the Fugitive Offenders Act, 1881, is inconsistent with the political status of India. It is somewhat unfortunate that the Court hearing that case was not invited to say anything about the operation of the India (Consequential Provision) Act, 1949. 22. But C. G. Menon's case [1955]1SCR280 : [1955]1SCR280 was a reverse case, in that, the Colonial Secretary of Singapore had made a re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ases as well, in which orders were made by the British Courts complying with the requisitions made by the Governments of Republics within the Commonwealth, for extradition of offenders under the Fugitive Offenders Act, 1881. An offender from Ghana was ordered to be extradited pursuant to the Ghana (Consequential Provision) Act, 1960, even after Ghana became a republic Re. Kwesi Armah [1966] 2 All E.R. 1006 On July 1, 1960, Ghana while remaining by virtue of the Ghana (Consequential Provision) Act, 1960, a member of the Commonwealth became a Republic. Kwesi Armah who was a Minister in Ghana fled the country in 1966 and took refuge in the United Kingdom. He was arrested under a provisional warrant issued under the Fugitive Offenders Act, 1881. The Metropolitan Magistrate being satisfied that the Act of 1881 still applied to Ghana and that a prima facie case had been made out against the applicant in respect of two alleged contraventions of the Ghana Criminal Code, 1960, by corruption and extortion when he was a public officer, committed Kwesi Armah to prison pending his return to Ghana to undergo trial. A petition for a writ of habeas corpus before the Queen's Bench Division of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #39;s Laws of England, 3rd Edn., Vol. 5 Article 987, p. 433-in dealing with the expression Her Majesty's Dominions in old statutes, it is observed : The term 'Her Majesty's dominions' means all the territories under the sovereignty of the Crown, and the territorial waters adjacent thereto. In special cases it may include territories under the protection of the Crown and mandated and trust territories. References to Her Majesty's dominions contained in statutes passed before India became a republic are still to be construed as including India; it is usual to name India separately from Her Majesty's dominions in statutes passed since India became a republic. In footnote (1) on p. 433 it is stated, British India, which included the whole of India except the princely States; and the Government of India Act, 1935 as amended by Section 8 of the India and Burma (Miscellaneous Amendments) Act, 1940, formed part of Her Majesty's dominions and was a British possession, although it was not included within the definition of colony . The territory comprised in British India was partitioned between the Dominions of India and Pakistan (Indian Independence Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of India setting out the procedure to be followed by a Magistrate, where the offender is not in Indian territory and his extradition is to be secured, amounted to an invasion on the authority of the Courts. We do not think that any such affront is intended by issuing the notification. The Fugitive Offenders Act, 1881. had not been expressly repealed even after January 26, 1950. It had a limited operation: the other countries of the Commonwealth were apparently willing to honour the international commitments which arose out of the provisions of that Act. But this Court on the view that since India had become a Republic, held that the Fugitive Offenders Act could not be enforced in this country, presented to the Government of India a problem which had to be resolved by devising machinery for securing the presence of offenders who were fugitives from justice. The notification issued was only in the nature of advice about the procedure to be followed and did not in any manner seek to impose any executive will upon the Courts in matters judicial. Observations made by Mukherji, J., that the notification issued by the Central Government authorising the Chief Presidency Magistrate to i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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