eal No II of 1949
Appeal by special leave from the judgment of the Allaha bad High Court Harish Chandra J dated 11th November 1949 in Criminal Miscellaneous Case No 960 of 1949
The facts of the case and the arguments of counsel are set out fully in the judgment
Alladi Krishnaswami Iyer Alladi Kuppuswami with him for the appellant
MC Setalvad Attorney General for India V N Sethi with him for the respondent
May 5
The judgment of Kania CJ and Patanjali Sastri J was delivered by PATANJALI SASTRI J This is an appeal by special leave from an order of the High Court at Allahabad dismiss ing an application under sections 491 and 561 A of the Code of Criminal Procedure for release of the appellant who was arrested in pursuance of an extradition warrant issued by the Regional Commissioner of the United State of Rajasthan who is the principal officer representing the Crown in the territory of that State
The appellant who is a member of the Uttar Pradesh Civil Service was appointed in 1948 to serve what was then known as the Tonk State in various capacities and during such service he is alleged to have helped the Nawab in obtaining the sanction of the Government of India to the payment of Rs 14 lakhs to the Nawab out of the State Treasury for the discharge of his debts and to have induced the Nawab by threats and deception to pay the appellant in return for such help sums totalling Rs 3 lakhs on various dates
On these allegations the appellant is charged with having committed offences under section 383 Extortion and 575 section 420 Cheating of the Indian Penal Code which are extraditable offences under the hereinafter referred to as the Act
The warrant was issued under section 7 of the Act to the District Magis trate Nainital where the appellant was residing after reverting to the service of the Uttar Pradesh Government to arrest and deliver him up to the District Magistrate of Tonk
The appellant s case is that the sum of Rs 3 lakhs was paid to him by the Nawab to be kept in safe deposit in a bank for the Nawab s use in Delhi that no offence was committed and that the amount was returned when demanded by the authorities of the Tonk State
The warrant was issued mala fide on account of enmity
Various technical objections were also raised to the validity of the warrant and to the jurisdiction of the Magistrate at Nainital to take cogni sance of the matter and arrest the appellant
The High Court overruled all the objections and dismissed the application for the release of the appellant
On behalf of the appellant Mr Alladi Krishnaswami Aiyar contended that section 7 of the Act under which the warrant purports to have been issued had no application to the case and that the entire proceedings before the Magistrate were illegal and without jurisdiction and should be quashed
Learned counsel relying on section 18 of the Act which provides that nothing in Chapter III which contains section 7 shall derogate from the provisions of any treaty for the extradition of offenders submitted that the treaty entered into between the British Government and the Tonk State on the 28th January 1869 although declared by section 7 of the Indian Independence Act 1947 to have lapsed as from the 15th August 1947 was continued in force by the Stand still Agreement entered into on the 8th August 1947 that that treaty exclusively governed all matters relating to extradition between the two States and that inasmuch as it did not cover the offences now charged against the appel lant no extradition of the appellant could be demanded or ordered
576 The Attorney General appearing for the Government ad vanced three lines of argument in answer to that contention
In the first place the standstill agreement entered into with the various Indian States were purely temporary ar rangements designed to maintain the status quo ante in respect of certain administrative matters of common concern pending the accession of those States to the Dominion of India and they were superseded by the Instruments of Acces sion executed by the Rulers of those States
Tonk having acceded to the Dominion on the 16th August 1947 the stand still agreement relied on by the appellant must be taken to have lapsed as from that date
Secondly the treaty was no longer subsisting and its execution became impossible as the Tonk State ceased to exist politically and such sover eignty as it possessed was extinguished when it covenanted with certain other States with the concurrence of the Indian Government to unite and integrate their territories in one State with a common executive legislature and judiciary by the name of the United State of Rajasthan the last of such covenants which superseded the earlier ones having been entered into on the 30th March 1949
Lastly even assuming that the treaty was still in operation as a binding executory contract its provisions were in no way derogated from by the application of section 7 of the Act to the present case and the extradition warrant issued under that section and the arrest made in pursuance thereof were legal and valid and could not be called in question under section 491 of the Criminal Procedure Code
As we are clearly of opinion that the appellant s contention must fail on this last ground we consider it unnecessary to pronounce on the other points raised by the AttorneyGeneral especially as the issues involved are not purely legal but partake also of a political character and we have not had the views of the Governments concerned on those points
It was not disputed before us that the present case would fall within section 7 of the Act all the requirements thereof being satisfied if only the applicability of 577 the section was not excluded under section 18 by reason of the Extradition Treaty of 1869 assuming that it still subsists
The question accordingly arises whether extradi tion under section 7 for an offence which is not extradita ble under the treaty is in any sense a derogation from the provisions of the treaty which provides for the extradition of offenders for certain specified offences therein called heinous offences committed in the respective territories of the high contracting parties
Under article 1 the Gov ernment of the Tonk State undertakes to extradite any per son whether a British or a foreign subject who commits a heinous offence in British territory
A reciprocal obliga tion is cast by article 2 on the British Government to extradite a subject of Tonk committing such an offence within the limits of that State
Article 3 provides inter alia that any person other than a Tonk subject committing a heinous offence within the limits of the Tonk State and seeking asylum in British territory shall be apprehended and the case investigated by such Court as the British Govern ment may direct
Article 4 prescribes the procedure to be adopted and the conditions to be fulfilled before extradi tion could be had and article 5 enumerates the offences which are to be deemed as coming within the category of heinous offences which however do not include the of fences charged against the appellant
The argument on behalf of appellant was put thus The maxim expressio unius est exclusio alterius is applicable as pointed out by McNair on The Law of Treaties 1938 pp 203 204 to the interpretation of treaties
According to that rule the treaty in question should be read as allowing extradition only for the specified offences and for no others that is to say as implying a prohibition of extra dition by either State for any other offence than those enumerated in article 5
Further while the treaty entitled each of the high contracting parties to demand extradition on a reciprocal basis an unilateral undertaking by the Indian Government to grant extradition for an offence for which it could not claim extradition under the treaty 578 violates the principle of reciprocity which is the recog nised basis of all international compacts for extradition
Such an arrangement places the State of Tonk in a more advantageous position which was not contemplated by the framers of the treaty
And where as here the person whose surrender is demanded is an Indian subject who is not liable to be extradited under the treaty his surrender under section 7 trenches upon the liberty of the subject
In so far therefore as that section authorises extradition of a person especially when he is an Indian subject for an offence which is not extraditable under the treaty it derogates from the provisions of the treaty within the meaning of section 18 and its application to the present case is thereby excluded
The argument proceeds on a miscon ception and cannot be accepted
No doubt the enumeration of heinous offences in arti cle 5 of the treaty is exhaustive in the sense that the high contracting parties are not entitled under the treaty to claim extradition of criminals in respect of other offences
But we cannot agree that such of enumeration implies a prohibition against either those parties providing by its own municipal laws for the surrender of criminals for other offences not covered by the treaty
It is difficult to imagine why the contracting States should place such a fetter on their respective legislatures in advance not only in regard to their subjects but also in regard to alien offenders for if such prohibition is at all to be implied it should cover both
As pointed out in Wheaton s Interna tional Law there is no universally recognised practice that there can be no extradition except under a treaty for some countries grant extradition without a treaty Fourth Edition sections 116 a to d pp 186 189
No doubt the constitutional doctrine in England is that the Crown makes treaties with foreign States for extradition of criminals but those treaties can only be carried into effect by Act of Parliament Ibid section 116 b p 187
Accordingly the extradition Acts are made applicable by an Order in Council in the case of each State which enters into an extradition treaty 579 with the Crown and they are made applicable only so far as they can be applied consistently with the terms and condi tions contained in the treaty
Under such a system where the high contracting parties expressly provide that their own subjects shall not be delivered up as in the case of the treaty between England and Switzerland the power to arrest and surrender does not exist Regina vs Wilson1
This it was observed by Cockburn CJ in that case was a serious blot on the British system of extradition and the Royal Commission on Extradition of which he was the chairman recommended in their report that reciprocity in this matter should no longer be insisted upon whether the criminal be a British subject or not
If he has broken the laws of a foreign country his liability to be tried by them ought not to depend upon his nationality 
The convenience of trying crimes in the country where they were committed is obvious
It is very much easier to transport the criminal to the place of his offence than to carry all the witnesses and proofs to some other country where the trial is to be held Wheaton section 120 a pp 197 198
Evidently similar considerations led to the passing of the Act by the Indian Legislature providing for the surrender of criminals including Indian subjects for a wide variety of offences with power to the Governor General in Council to add to the list by notification in the Gazette generally for all States or specially for any one or more States
This statutory authority to surrender cannot of course enlarge the obliga tion of the other party where an extradition treaty has been entered into and this is made clear by section 18
But it is equally clear that the Act does not derogate from any such treaty when it authorises the Indian Government to grant extradition for some additional offences thereby enlarging not curtailing the power of the other party to claim surrender of criminals
Nor does the Act derogate in the true sense of the term from the position of an Indian subject under the treaty of 1869
That treaty created no right in the subjects of either 1 580 State any more than in fugitive aliens not to be extradited for other than heinous offences
 It is noteworthy that even in Wilson s case ubi supra where there was an excep tion in the treaty in favour of the subjects of the con tracting States the decision was based not on the ground that the treaty by itself conferred any right or privilege on English subjects not to be surrendered but on the ground that the Order in Council applying the Extradition Act 1870 to Switzerland limited its operation consistently with the terms of the treaty to persons other than English subjects
It is therefore not correct to say that by providing for extradition for additional offences the Act derogates from the rights of Indian citizens under the treaty or from the provisions of the treaty
We are accord ingly of opinion that the arrest and surrender of the appel lant under section 7 of the Act is not rendered unlawful by anything contained in the treaty of 1869 assuming that it still subsists
The appeal fails and is dismissed
FAZL ALI J
I have had the advantage of reading the judgments prepared by my brothers Sastri and Mukherjea who have given different reasons for arriving at the same con clusion
As I am inclined to agree with the line of reason ing in both the judgments I concur in the order that this appeal should be dismissed
MAHAJAN J
I agree with the judgment going to be deliv ered by my brother Mukherjea
For the reasons given therein this appeal should be dismissed
MUKERJEA J
This appeal which has come up before us on special leave granted by this Court is directed against a judgment of Harish Chandra J of the Allahabad High Court dated 11th of November 1949 by which the learned Judge dismissed an application of the appellant under sections 491 and 561 A of the Criminal Procedure Code
The facts which are material for purposes of this appeal are not in controversy and may be shortly stated as follows The appellant Dr Ram Babu 581 Saksena who is a resident of the United Provinces was a member of the Executive Civil Service in that province and during his official career extending over SO years held various important posts both in and outside that province
In January 1948 he was appointed Administrator of the Tonk State where a dispute was going on at that time regarding succession to the rulership of the State between two rival claimants
On 11th of February 1948 the dispute was set tled and Ismail Ali Khan was recognised as the Nawab or the Ruling Prince of the State and appellant was then appointed Dewan and Vice President of the State Council of which the Nawab was the President
In April 1948 the Tonk State together with several other States in Rajputana integrated and formed together the United State of Rajasthan and the appellant thereupon became the Chief Executive Officer of the Rajasthan Government
Towards the end of July 1948 he got another special post under the Rajasthan Government but soon afterwards he took leave and proceeded to Naini Tal where he has been residing since then
On 23rd May 1949 he was arrested at Naini Tal on the strength of a warrant issued under section 7 of the  by Shri VKB Pillai Regional Commissioner and Political Agent of the United State of Rajasthan
The warrant which is dated the 8th of May 1949 was addressed to the District Magistrate of Naini Tal and directed the arrest of Dr Saksena and his removal to Rajasthan to be delivered to the District Magistrate of Tonk for enquiry into certain of fences against the laws of that State which he was alleged to have committed
After his arrest the appellant was released on bail in terms of the warrant itself and was directed to be present before the District Magistrate of Tonk on the 7th of June 1949
The allegations against the appellant in substance are that while he was the Dewan of the Tonk State and Vice President of the State Council the Nawab being in urgent need of money to meet his personal demands requested Dr Saksena to help him in obtaining for his own use 582 a sum of Rs 14 lakhs from the State Treasury
Dr Saksena promised his assistance on condition that the Nawab would give him a sum of Rs 3 lakhs out of this amount as his share
By dint of his efforts the appellant succeeded in inducing the State Ministry to pay the full amount of Rs 14 lakhs to the Nawab in different instalments
The first instalment amounting to over Rs 212 lakhs was paid on 31st March 1948 and a further sum of Rs 5 lakhs was paid on 21st of April following
On that date it is said the Nawab paid to Dr Saksena a sum of Rs 150000 which was only half of the promised amount
A few days later Dr Saksena pressed for payment of the balance and held out threats to the Nawab that in case the money was not paid the latter would find himself in serious difficulties as his position as a Ruling Prince of the State was not at all secure and there were grave charges against him
As a result of these threats and misrepresentations the Nawab was induced to pay to the appellant the balance of Rs 150000 in two instalments
The matter became known to the Regional Commissioner some time in November 1948 and he called Dr Saksena for an interview and succeeded in getting back from him the entire sum of Rs 3 lakhs which the Nawab had paid
On the basis of these facts Dr Saksena has been accused of having committed offences under sections 383 and 420 of the Indian Penal Code
On 3rd June 1949 Dr Saksena filed an application in the High Court of Allahabad under sections 491 and 561 A of the Criminal Procedure Code complaining of illegal and unauthorised detention under the warrant of the Regional Commissioner of Rajputana dated the 8th of May 1949
The legality of the warrant and of arrest thereunder was at tacked on a number of grounds
It was contended first of all that the applicant was falsely implicated by the Nawab on account of enmity which grew up between them for various reasons and the allegations made were totally false
It was next said that the District Magistrate of Naini Tal could not take cognizance of the matter without the previous 583 sanction of the UP Government under section 197 of the Criminal Procedure Code and that the sanction of the Rajpra mukh of the United State of Rajasthan was also necessary before any proceeding could be initiated
The third and the main contention was that the alleged offences being said to have been committed in the State of Tonk the case would be governed by the provisions of the Extradition Treaty entered into between the British Government and the Tonk State on 28th of January 1869 and as neither extortion nor cheating was mentioned in the list of offences for which extradition was permissible under that Treaty the warrant of arrest issued under section 7 of the Extradition Act was wholly illegal and unauthorised
It is admitted that these offences are specified in the Schedule to the Indian Extra dition Act of 1903 but it was said that section 18 of the Extradition Act expressly made the Act inapplicable when its provisions derogated from those of a Treaty
Lastly it was urged that the extradition warrant was a mala fide step taken by the Nawab of Tonk with the help of his friend the Regional Commissioner of Rajasthan for ulterior purposes and that it constituted a fraud upon the Statute and an abuse of the processes of law
The application was heard by Harish Chandra J sitting singly and by a judgment dated 11th of November 1949 which fully and elaborately dis cussed the different points raised in the case the learned Judge rejected the application of the petitioner
No cer tificate was given by the High Court under section 205 1 of the Government of India Act 1935 and the present appeal has been brought to this Court on the strength of special leave granted by it
Sir Alladi Krishnaswami Aiyar who appeared in support of the appeal has very properly not pressed before us all the points that were canvassed on behalf of his client in the Court below
His contention in substance is that the rights of extradition in the present case should be regulat ed exclusively by the provisions of the Extradition Treaty that was entered into between the Tonk State and the British Government 584 on 28th of January
1869 and was subsequently modified by a supplementary Treaty in the year 1887
This Treaty it is argued has not been abrogated or rendered ineffective in any way by reason of the merger of the Tonk State in the United State of Rajasthan and the decision of the High Court on this point is erroneous
According to the provi sions of this Treaty no extradition is permissible in respect to offences of extortion and cheating with which the appellant is charged and the warrant of arrest issued by the Political Agent is consequently illegal and ultra vires
It is conceded by Sir Alladi that if section 7 of the  is held to be applica ble to the facts of the present case the warrant of arrest issued by the Political Agent of Rajasthan could not be assailed as invalid or inoperative but his contention is that section 18 of the Extradition Act makes an express reservation in cases where Treaty rights exist and to the extent that the provisions of Chapter III of the Extradition Act derogate from those of any Treaty relating to extradi tion of offenders the Treaty is entitled to prevail
To appreciate the merits of this contention it may be convenient to refer at this stage to a few sections of the of 1903 as well as to the material provisions of the Extradition Treaty between the Tonk State and the British Government which have a bearing upon the present question
Chapter 111 of the deals with surrender of fugitive criminals in case of States other than foreign States and section 7 with which this chapter opens provides as follows 1 Where an extradition offence has been committed or is supposed to have been committed by a person not being a European British subject in the territories of any State not being a foreign State and such person escapes into or is in British India and the Political Agent in or 1or such State issues a warrant addressed to the District Magis trate of any district in which such person is believed to be or if such person is believed to be in any Presidency town 585 to the Chief Presidency Magistrate of such town for his arrest and delivery at a place and to a person or authority indicated in the warrant such Magistrate shall act in pursu ance of such warrant and may give directions accordingly
     The expression extradition offence has been defined in section 2 b and means any such offence as is described in the First Schedule to the Act
 The First Schedule gives a catalogue of offences described with reference to specific sections of the Indian Penal Code and it includes offences punishable under sections 383 and 420 of the Indian Penal Code prima facie it seems therefore that all the conditions laid down in section 7 of the Extradition Act are fulfilled in the present case
the warrant has been issued by the Political Agent of a State which is not a foreign State as defined by the Act and the offences with which the appellant is charged are extradition offences as specified in Sched ule i Sir Alladi s contention as stated above is that section 7 which is in Chapter III of the Extradition Act is controlled by section 18 which lays down that nothing in this chapter shall derogate from the provisions of any treaty for the extradition of offenders and the procedure provided by any such treaty shall be followed in any case to which it applies and the provisions of this Act shall be modified accordingly
 Turning now to the Extradition Treaty between the Tonk State and the British Government it will be seen that the First Article of the Treaty provides for extradition where a British subject or a foreign subject commits a heinous offence in British territory and seeks shelter within the limits of the Tonk State
The Second Article deals with an offender who is a subject of the Tonk State and having committed a heinous offence within the State seeks asylum in British territory while the Third Article relates to a person other than a Tonk subject who commits a heinous offence within the limits of the Tonk State and seeks asylum in British territory
The conditions 586 under which extradition could be had in all such cases and the procedure to be followed are laid down in article 4
Article 5 then gives a list of offences which would be deemed as coming within the category of heinous offences
It is not disputed that neither cheating nor extortion are mentioned in this list
The whole controversy there fore centers round the point as to whether in view of the provisions of the Extradition Treaty mentioned above extra dition could legally be made or demanded in respect of offences coming under sections 383 and 420 of the Indian Penal Code which are mentioned in the list of offences specified in Schedule I to the Extradition Act but do not find a place in article 5 of the Treaty
Could it be said that the provisions of the Extradition Act derogate in this respect from the Treaty between the Tonk State and the British Government and consequently the terms of the Treaty would override the statute as indicated in section 18 of the Extradition Act  The learned Attorney General who appeared for the Government of India put forward a two fold argument in reply to the contention of Sir Alladi
He argued in the first place that section 18 of the has no application to the present case inasmuch as the Extradition Treaty between the Tonk State and the British Government upon which the appellant relies does not subsist and cannot be enforced at the present day
The other contention is that even if the Treaty still subsists there is nothing in its terms which prohibits extradition for offences other than those described as heinous offences in article 5
It is argued that to derogate means to detract or to take away and the Schedule to the Extradi tion Act by mentioning certain offences which do not occur in the list of heinous offences as given in the Treaty cannot be said to have derogated from the terms of the Treaty
Both these points were fully argued on both sides and it is clear that if on either of these points a decision is reached adverse to the appellant the appeal is bound to fail
587 So far as the first point is concerned Mr Setalvad has drawn our attention to various political changes that have come over the Tonk State since the conclusion of the Extra dition Treaty in 1869
In 1869 Tonk was one of the Native States in India with a separate political existence of its own and the Treaty that was entered into in that year was meant to regulate exclusively the rights and obligations in matters of extradition of offenders as between the Tonk State on the one hand and the British Government on the other
In 1887 there was a modification of the Treaty but it is not disputed that the modification made certain alter ations in the procedure which are not material for our present purpose
The major political change with regard to all Indian States which vitally affected their existing Treaties with the British Government occurred on the 15th of August 1947 when India became an Independent Dominion
Section 7 of the Indian Independence Act provided inter alia that 1 As from the appointed day b The suzerainty of His Majesty over the Indian States lapses and with it all treaties and agreements in force at the date of the passing of this Act between His Majesty and the rulers of Indian States  
As a result of this provision the Extradition Treaty between Tonk and the British Government must be deemed to have lapsed with effect from the 15th of August 1947
If matters stood there obviously there would be nothing left upon which section 18 of the could possibly operate
There was however a Standstill Agreement entered into by the Indian Dominion with the Indian States the first article of which runs as follows 1
1 Until new agreements in this behalf are made all agreements and administrative arrangements as to matters of common concern now existing between the Crown and any Indian State shall in so far as may be appropriate contin ue as between the Dominion of 588 India or as the case may be the part thereof and the State
2 In particular and without derogation from the generality of sub clause 1 of this clause the matters referred to above shall include the matters specified in the Schedule to this agreement
 The Schedule does mention extradition as one of the matters to which the Standstill Agreement is applicable
This was certainly intended to be a temporary arrangement and Mr Setalvad argues that as there was no Treaty in the proper sense of the term but only a substitute for it in the shape of a temporary arrangement section 18 of the Extradition Act which expressly mentions a Treaty cannot be applicable
While conceding that prima facie there is force in the conten tion I think that this would be taking a too narrow view of the matter and I should assume for the purposes of this case that under the Standstill Agreement the provisions of the Treaty of 1869 still continued to regulate matters of extradition of criminals as between the Tonk State on the one hand and the Indian Dominion on the other till any new agreement was arrived at between them
Though the Standstill Agreement was to take effect after the establishment of the Indian Dominion the In strument was actually signed on 8th of August 1947
On the 16th of August 1947 Tonk acceded to the Dominion of India and one of the terms in the Instrument of Acces sion is that the Ruler accepts the position that with regard to matters specified in the Schedule to the Instrument the Dominion Legislature would be entitled to make laws for the State Extradition including the surrender of criminals and accused persons to parts of His Majesty s Dominion outside India is one of the matters specified in the Schedule
Thus the State gave up and surrendered in favour of the Dominion Legislature its right to legislate in respect to extradition after the date of accession
Whether the existing Extradition Treaty was ipso facto abrogated by this Instrument of Accession is not so clear
Obviously the Indian Dominion 589 could pass any legislation it liked regarding matters of extradition between the Tonk State and any other State either Indian or Foreign
No such law was however passed by the Indian Legislature except that very recently under an Adaptation Order the Extradition Act of 1903 has been made applicable to States under Group B in the Indian Constitution in which Rajasthan is included
It is to be noted that the Extradition Act itself which is made applicable to the United State of Rajasthan contains an express provision in section 18 which safeguards exist ing treaty rights
It is somewhat unusual that an Extradi tion Treaty would be subsisting even after the State had acceded to India but we have no materials before us upon which we could definitely hold that the Treaty has been expressly superseded or abrogated by the Indian Legislature
The next important thing is that in April 1948 there was a Covenant entered into by the Rulers of nine States including Tonk by which it was agreed by and between the covenanting parties that the territories of these nine States should be integrated into one State by the name of the United State of Rajasthan
This was done with the concurrence of the Dominion of India
Later on on 12th of May 1949 Mewar also became a party to this Covenant and the United State of Rajasthan was reconstituted by the integration of the territories of all the ten States
By the Covenant of Merger the Covenanting States agreed to unite and integrate their territories in one State known as the United State of Rajasthan and to have a common executive legislature and judiciary
The Rulers of all the States became members of the Council of Rulers and the President was designated as the Raj Pramukh of the United State
Article VI of the Covenant of Merger runs as follows 1 The Ruler of each Covenanting State shall as soon as practicable and in any event not later than the first day of May 1948 make over the administration of his State to the Raj Pramukh and thereupon 590 a all rights authority and jurisdiction belonging to the Ruler which appertain or are incidental to the Govern ment of the Covenanting State shall vest in the United State and shall hereafter be exercisable only as provided by this Covenant or by the Constitution to be framed thereunder b all duties and obligations of the Ruler pertain ing or incidental to the Government of the Covenanting State shall devolve on the United State and shall be discharged by it and c all the assets and liabilities of the Covenanting State shall be the assets and liabilities of the United State
 The question now is how far was the Extradition Treaty between the Tonk State and the British Government affected by reason of the merger of the State into the United State of Rajasthan
When a State relinquishes its life as such through incorporation into or absorption by another State either voluntarily or as a result of conquest or annexation the general opinion of International Jurists is that the treaties of the former are automatically termi nated
The result is said to be produced by reason of com plete loss of personality consequent on extinction of State life1
The cases discussed in this connection are gener ally cases where independent States have ceased to be such through constrained or voluntary absorption by another with attendant extinction of the former s treaties with other States
Thus the forceable incorporation of Hanover into the Prussian Kingdom destroyed the previous treaties of Hanover
The admission of Texas into the United States of America by joint resolution extinguished the Treaties of the Independent Republic of Texas2
The position is the same when Korea merged into Japan
According to Oppenheim whose opinion has been relied upon by Sir Alladi no succession of rights and duties ordinarily takes place in such cases and as political and personal treaties presuppose the exist ence of a contracting State 1 Vide Hyde on International Law Vol
III p 1529
2 Vide Hyde on International Law Vol
II1 p 1531 591 they are altogether extinguished
It is a debatable point whether succession takes place in cases of treaties relating to commerce or extradition but here again the majority of writers are of opinion that they do not survive merger or annexation1
The remarks quoted above do not however seem quite appropriate to a case of the present description
Here there was no absorption of one State by another which would put an end to the State life of the former and extinguish its personality
What happened here was that several States voluntarily united together and integrated their territories so as to form a larger and composite State of which every one of the covenanting parties was a component part
There was to be one common executive legislature and judiciary and the Council of Rulers would consist of the Rulers of all the Covenanting States
It may not be said therefore that the Covenanting States lost their personality altogether and it is to be noted that for purposes of succession of Ruler ship and for counting votes on the strength of population and other purposes the Covenant of Merger recognises a quasi separation between the territories of the different States
But although such separation exists for some pur poses between one State territory and another it is clear that the inhabitants of all the different States became from the date of merger the subjects of the United State of Rajasthan and they could not be described as subjects of any particular State
There is no such thing as subject of the Tonk State existing at the present day and the Ruler of Tonk cannot independently and in his own right exercise any form of sovereignty or control over the Tonk territory
The Government which exercises sovereign powers is only one even though the different Rulers may have a voice in it
It seems to us that in those altered circumstances the Extradi tion Treaty of 1869 has become entirely incapable of execution
It is not possible for the Tonk State which is one of the contracting parties to act in accordance with the terms of the treaty for it has no longer any independent 1 Oppenheim on International Law Vol
I p 152 592 authority or sovereign rights over the Tonk territory and can neither make nor demand extradition
When as a result of amalgamation or merger a State loses its full and inde pendent power of action over the subject matter of a treaty previously concluded the treaty must necessarily lapse1
It cannot be said that the sovereignty of the Tonk State in this respect is now vested in the United State of Rajasthan
The authority so far as extradition was concerned was already surrendered by the Tonk State in favour of the Dominion Government by the Instrument of Accession
But even assuming that these treaty rights could devolve upon the United State of Rajasthan by reason of article 6 of the Covenant of Merger the latter it seems to me could be totally incapable of giving effect to the terms of the treaty
As has been said already there could be no such thing as a subject of the Tonk State at the present moment and article 2 of the Treaty which provides for extra dition of Tonk subjects accused of having committed heinous offences within Tonk territory and seeking asylum elsewhere would be wholly infructuous
The United State of Rajasthan could not possibly demand extradition on the basis of this article and if reciprocity which is the essence of an Extradition Agreement is gone the Treaty must be deemed to be void and inoperative
The decision in Terlinden vs Ames 2 which was relied upon by Sir Alladi in course of his arguments rather forti fies the view that I have taken
The question there was whether an Extradition Treaty between Prussia and the United States of America which was entered into in 1852 could be given effect to after the incorporation of Prussia into the German Empire
The question was answered in the affirmative
It was pointed out inter alia that the Constitution of the German Empire left sufficient independent power and sover eignty to the States composing the confederation to enable them to act upon these treaties and it was observed by Chief Justice Fuller who delivered the opinion of the Court that where sovereignty in respect 1 Vide Hyde on International Law Vol
p 1535
2  593 to the execution of treaties is not extinguished and the power to execute remains unimpaired outstanding treaties cannot be regarded as void
This is the real criterion and as obviously the power of the Tonk State to execute the treaty is altogether gone after the Covenant of Merger the treaty cannot but be regarded as void
The other case cited by Sir Alladi viz that of Lazard Brothers vs Midland Bank Ltd1 has absolutely no bearing on this point
It laid down the well accepted proposition of International Law that a change in the form of government of a contracting State does not put an end to its treaties
The treaty entered into by the Czarist Russia could be given effect to after the Revolution once the new government was recognised as a person in International Law
My conclusion therefore is that the Extradition Treaty between the Tonk State and the British Government in 1869 is not capable of being given effect to in the present day in view of the merger of the Tonk State in the United State of Rajasthan
As no treaty rights exist section 18 of the has no application and section 7 of the Act has been complied with there is no ground upon which we can interfere
In view of my decision on the first point the second point does not require determination and I refrain from expressing any opinion upon it
In the result the appeal fails and is dismissed
DAS J I substantially agree with the reasonings given in the judgment just delivered by my learned brother Mukher jea and concur in dismissing this application
Appeal dismissed


Summary:
In 1869 the British Government and the State of Tonk entered into a treaty which provided for the extradition of offenders in respect of certain offences specified therein called heinous offences which did not include the of fences of cheating and extortion
In 1903 the Indian Extradition Act was passed which provided for extradition in respect of cheating and extortion also but section 18 of the Act provided that nothing contained in the Act shall derogate from the provisions of any treaty for the extradition of offenders
 Under the Independence of India Act 1947 the suzerainty of His Majesty over the Indian States lapsed and with it all treaties and agreements in force but under a standstill agreement between the Indian Dominion and the States including Tonk all agreements between His Majesty and the States were continued including agreements in respect of extradition
Tonk acceded to the Dominion of India in 1947 and became a member State of the United State of Rajasthan
The appellant was a member of the Uttar Pradesh Civil Service and his services were lent to the State of Tonk in 1948
After he had reverted to the Uttar Pradesh he was charged with the offences of cheating and extortion alleged to have been committed while he was in Tonk and was arrested under an extradition warrant issued under section 7 of the Extradition Act 1903
He applied under es
491 and 561 A of the Code of Criminal Procedure for his release contending that in view of the provisions of section 18 of the Extradition Act and the Treaty of Extradition of 1869 his arrest was illegal Held per KANIA O J and PATANJALI SASTRI J FAZL ALI
J concurring Even assuming that the Extradition Treaty of 1869 subsisted after the merger of the Tonk State by providing for extradition for additional offences the Extradition Act of 1903 did not derogate from the provisions of the Treaty of 5869 or the rights of Indian citizens thereunder and the arrest and surrender of the appellant under section 7 of the Act was not therefore rendered unlawful by anything contained in the said Treaty
574 Per MUKHERJEA J FAZL ALI MAHAJAN and DAS JJ
concur ring
The Extradition Treaty of 1869 was not capable of being given effect to in view of the merger of the Tonk State in the United State of Rajasthan and as no enforce able treaty right existed section 18 of the Extradition Act of 1903 had no application and inasmuch as the conditions of section 7 of the said Act had been complied with the warrant of arrest issued under section 7 of the Act was not illegal