iminal Appeal No 14 of 1968
Appeal by special leave from the judgment and order dated April 20 1967 of the Calcutta High Court in Criminal Revision No 502 of 1966
B Sen and P K Chakravarti for the appellants
A section R Chari B P Maheshwari and Sobhag Mal Jain for respondent No 1
The Judgment of the Court was delivered by Shah J
In the course of investigation of offences under sections 420 467 471 and 120 BIP Code the Officer in charge of the investigation submitted an application before the Chief Presidency Magistrate Calcutta for an order that a warrant for the arrest of Jugal Kishore More and certain other named persons be issued and that the warrant be forwarded with the relevant records and evidence to the Ministry of External Affairs Government of India for securing extradition of More who was then believed to be in Hong Kong
It was stated in the application that More and others were parties to a criminal conspiracy in Calcutta between May 1961 and December 1962 to defraud the Government of India in respect of India s foreign exchange and their presence was required for trial
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 32 3 was hatched in Calcutta within his jurisdiction and More was one of the conspirators
He accordingly directed that a nonbailable warrant in Form 11 Sch
V of the Code of Criminal Procedure 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 K52 613141 dated 21st May 1955
The warrant was forwarded by the Government of West Bengal to the Ministry of External Affairs Government of India
The Ministry of External Affairs forwarded the warrant to the High Commissioner for India Hong Kong who in his turn requested the Colonial Secretary Hong Kong for an order extraditing More under the Fugitive Offenders Act 1881 44 and 45 Vict c 69 to India for trial for offences described in the warrant
The Central Magistrate Hong Kong endorsed the warrant and directed the Hong Kong Police pursuant to section 13 of Part 11 and section 26 of Part IV of the Fugitive Offenders Act 1881 to arrest More
The order recited  WHEREAS I have perused this warrant for the apprehension of Jugal Kishore More 
accused of an offence punishable by law in Calcutta Republic of India which warrant purports to be signed by the Chief Presidency Magistrate Calcutta and is sealed with the seal of the Court of the said Magistrate and is attested by section K Chatterjee
Under Secretary in the Ministry of External Affairs of the Republic of India and sealed with the seal of the said Ministry AND WHEREAS I am satisfied that this warrant was issued by a person having lawful authority to issue the same AND WHEREAS it has been represented to me that the said Jugal Kishore More  is suspected of being in the Colony AND WHEREAS Order in Council SR and 0
No 28 of 1918 by virtue of which Part 11 of the Fugitive Offenders Act 1881 was made to apply to a group 324 of British Possessions and Protective States including Hong Kong and British India appears to remain in full force and effect so far as the law of Hong Kong is concerned
Now therefore under section 13 of the Fugitive Offenders Act 1881 I hereby endorse this Warrant and authorise and command you in Her Majesty s name forthwith to execute this Warant in the Colony to apprehend the said Jugal Kishore More 
wherever he may be found in the Colony and to bring him before a Magistrate of the said Colony to be further dealt with according to law
 More was arrested on November 24 1965
By order dated April 4 1966 the Central Magistrate Hong Kong over ruled the objection raised on behalf of More that the Court had no jurisdiction to proceed in the matter under the Fugitive Offenders Act 1881 since the Republic of India was no longer a British Possession
On May 16 1966 Hanuman Prasad father of More moved in the High Court of Calcutta a petition under section 439 of the Code of Criminal Procedure 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
In the view of Gupta J the warrant issued by the Chief Presidency Magistrate and the steps taken pursuant to the warrant were without jurisdiction that the request made to the Hong Kong Government by the Government of India was also without authority in the absence of a notified order under section 3 of the  and the High Court could not ignore the laws of the land even to support a gesture of comity to another nation that 325 what was done by the Hong Kong authorities pursuant to the request made for the surrender of More was not an instance of international comity but was regarded as the legal obligation under the Fugitive Offenders Act under which the Central Magistrate Hong Kong regarded India as a Colony or Possession of the British Commonwealth
The case was then posted for hearing before R Mukherji J
The learned Judge held that the
Chief Presidency Magistrate had no power to issue the warrant of arrest in the manner he had done a manner which in his view was unknown to the Code of Criminal Procedure since the Fugitive Offenders Act 18 8 1 had ceased on the coming into force of the Constitution to be part of the law of India and could not on that account be resorted to for obtaining extradition if offenders from another country that the instructions issued by the Government of India by letter No 3516 J dated June 14 1955 laying down the procedure to the followed by the courts for securing extradition of offenders from the Commonwealth countries should have been ignored by the Chief Presidency Magistrate and that the 34 of 1962 did not authorise the Chief Presidency Magistrate to issue a warrant and to send it to the Secretary Home Political Department Government of West Bengal that there was no legal basis for the requisition made by the Central Government to Hong Kong for extradition or surrender of More or for the issue of the warrant by the Chief  Presidency Magistrate and that the demand made by the Government of India to the Government of Hong Kong by making a requisition to Hong Kong for the arrest of More was not a political act beyond the purview of law and judicial scrutiny and being inconsistent with the law was liable to be rectified
He observed that the Central Government had the power under section 3 of the  to issue a notification for including Hong Kong in the list of countries from which offenders 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 1965 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
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 326 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 recoginised as a part of the comity of nations that one State should ordinarily afford to another State assistance towards bringing offenders to justice
The law relating to extradition between independent States is based on treaties
But the law has operation national as well as international It governs international relationship between the sovereign States which is secured by treaty obligations
But whether an offender should be handed over pursuant to a requisition is determined by the domestic law of the State on which the requisition is made
Though extradition is granted in implementation of the international commitments of the State the procedure to be followed by the Courts in deciding whether extradition should be granted and on what terms is determined by the municipal law
As observed in Wheaten s International Law Vol 1 6th Edn p 213   The constitutional doctrine in England is that the Crown may make treaties with foreign States for the extradition of criminals but those treaties can only be carried into effect by Act of Parliament for the executive has no power without statutory authority to seize an alien here and deliver him to a foreign power
 Sanction behind an order of extradition is therefore the international commitment of the State under which the Court functions but Courts jealously seek to protect the right of the individual by insisting upon strict compliance with the conditions precedent to surrender
The Courts of the country which make a requisition for surrender deal with the prima facie proof of the offence and leave it to the State to make a requisition upon the other State in which the offender has taken refuge
Requisition for surrender is not the function of the Courts but of the State
A warrant issued by a Court for an offence committed in a country from its very nature has no extra territorial operation
It is only a command by the Court in the name of the sovereign to its officer to arrest an offender and to bring him before the Court
By making a requisition in pursuance of a warrant issued by a Court of a State to another State for assistance in securing the presence of the offender the warrant is not invested with extra territorial operation
If the other State requested agrees to lend its aid to arrest the fugitive the arrest is made either by the issue of an independent warrant or endorsement or authentication of the warrant of the Court which issued it
By endorsement or 327 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
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 should be suffendered the enquiry is in the absence of express provisions to the contrary relating to the prima facie evidence of the commission of the offence which is extraditable the offence not being a political offence nor that the requisition being a subterfuge to secure custody for trial for a political offence
Prior to January 26 1950 there was in force in India the Indian 15 of 1903 which as the preamble ex pressly enacted was intended to provide for the more convenient administration of the Extradition Acts of 1870 and 1873 and the Foreign Jurisdiction Act of 1881 both enacted by the British Parliament
The Act enacted machinery in Ch
II for the surrender of fugitive criminals in case of Foreign States ie States to which the of 1870 and 1873 applied and in Ch
II for surrender of fugitive offenders in case of His Majesty s Dominions
The Extradition Acts of 1870 and 1873 sought to give effect to arrangements made with foreign States with respect to the surrender to such States of any fugitive criminals Her Majesty may by Order in Council direct and to prescribe the procedure for extraditing fugitive offenders to such foreign states
As observed in Halsbury s Laws of England Vol
16 3rd Edn para 1161 at p 567  When a treaty has been made with a foreign State and the Extradition Acts have been applied by Order in Council one of Her Majesty s principal Secretaries of State may upon a requisition made to him by some person recognized by him as a diplomatic representative of 328 that foreign State by order under his hand and seal signify to a police magistrate that such a requisition has been made and require him to issue his warrant for the apprehension of the fugitive criminal if the criminal is in or is suspected of being in the United Kingdom
 The warrant may then be issued by a police magistrate on receipt of the order of the Secretary of State and upon such evidence as would in his opinion justify the issue of the warrant if the crime had been committed or the criminal convicted in England
The procedure for extradition of fugitive offenders from British possessions was less complicated
When the was applied by Order in Council unless it was otherwise provided by such Order the Act extended to every British possesSion in the same manner as if throughout the Act the British possession were substituted for the United Kingdom but with certain modifications in procedure
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 group to which Part II of the Act applied a warrant was issued for the apprehension of a person accused of an offence punishable in that possession and such term is or was suspected of being in or on the way to another British possession of the same group a magistrate in the last mentioned possession if satisfied that the warrant was issued by a person having lawful authority to issue the same was bound to endorse such warrant and the warrant so endorsed was sufficient authority to apprehend within the jurisdiction of the endorsing magistrate the person named in the warrant and to bring him before the endorsing magistrate or some other magistrate in the same possession
If the magistrate before whom a person apprehended was brought was satisfied that the war rant was duly authenticated and was issued 329 by a person having lawful authority to issue it and the identity of the prisoner was established he could order the prisoner to be returned to the British possession in which the warrant was issued and for that purpose to deliver into the custody of the persons to whom the warrant was addressed or of any one or more of them and to be held in custody and conveyed to that possession there to be dealt with according to law as if he had been there apprehended
This was in brief the procedure prior to January 26 1950
The President of India adapted the Extradition Act 1903 in certain particulars
The Fugitive Offenders Act 1881 and the Extradition Act 1870 in their application to India were however not repealed by the Indian Parliament and to the extent they were consistent with the constitutional scheme they remained applicable
In order to maintain the continued application of laws of the British Parliament notwithstanding India becoming a Republic the British Parliament enacted the India Consequential Provision Act 1949 which by section 1 provided  1 On and after the date of India s becoming a republic all existing law that is to say all law which whether being a rule of law or a provision of an Act of Parliament or of any other enactment or instrument whatsoever is in force on that date or has been passed or made before that date and comes into force thereafter shall until provision to the contrary is made by the authority having power to alter that law and subject to the provisions of sub section
3 of this section have 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
3His 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 amay be made either before or after India becomes a republic and may be revoked or varied by a subsequent Order in Council  and 330 bshall be subject to annulment in pursuance of a resolution of either House of Parliament 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 vs C G Menon and Another1
In that case Menon and his wife were apprehended and produced before the Chief Presidency Magistrate Madras pursuant to warrants of arrest issued under the provisions of the Fugitive Offenders Act 1881
Arrests were made in pursuance of requisition made by the Colonial Secretary of Singapore requesting the assistance of the Government of India to arrest and return to the Colony of Singapore Menons under warrants issued by the Police Magistrate of Singapore
Menons pleaded that the Fugitive Offenders Act 1881 under which the action was sought to be taken against them was repugnant to the Constitution of India and was void and unenforceable
The Chief Presidency Magistrate
referred two questions of law for decision of the High Court of Madras 1 Whether the Fugitive Offenders Act 1881 applies to India after 26th January 1950 when India became a Sovereign Democratic Republic and 2Whether even if it applied it or any of its provisions particularly Part II thereof is repugnant to the Constitution of India and is therefore void and or inoperative
The High Court held that the Fugitive Offenders Act was in consistent with the fundamental right of equal protection of the laws guaranteed by article 14 of the Constitution and was void to that extent and unenforceable against the petitioners
In appeal brought to this Court it was observed  It is plain from the  provisions of the Fugitive Offenders Act as well as from the Order in Council that British Possessions which were contiguous to one another and between whom there was frequent inter communication were treated for purposes of the Fugitive Offenders Act as one integrated territory and a summary procedure was adopted for the purpose of extraditing persons who had committed offences in these integrated territories
As the laws prevailing in those possessions were substantially the same the requirement that no fugitive will be surren dered unless a prima facie case was made against him was dispensed with
Under the Indian Extradition 11955 1 SCR 280  also a similar requirement is insisted upon before a person can be extradited
The situation completely changed when India became a Sovereign Democratic Republic
After the achievement of independence and the coming into force of the new Constitution by no stretch of imagination could India be described as a British Possession and it could not be grouped by an Order in Council amongst those Possessions
Truly speaking it became 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  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 British Possession and no Order in Council can be made to group it with other British Possessions   
The political background and shape of things when Part II of the Fugitive Offenders Act 1881 was enacted and envisaged by that Act having completely changed it is not possible without radical legislative changes to adapt that Act to the changed conditions
That being so in our opinion the tentative view expressed by the Presidency Magistrate was right
After this judgment was delivered the Government of India Ministry of External Affairs issued a notification on May 21 1955 to all State Governments of Part A B C  D States
It was stated in the notification that  
in a certain case of extradition of an offender the Supreme Court of India recently ruled that in 332 the changed circumstances the English Fugitive Offenders Act 1881 is no longer applicable to India
There can therefore be no question of issuing a warrant of arrest addressed to a foreign police or a foreign court in respect of persons who are residing outside India except in accordance with the Code of Criminal Procedure 1898
2In the circumstances to obtain a fugitive offender from the United Kingdom and other Commonwealth countries the following procedure may be adopted as long as the new Indian Extradition law is not enacted and the Commonwealth countries continue to honour our requests for the surrender of the fugitive offenders notwithstanding decisions of the Supreme Court aThe Magistrate concerned will issue a warrant for the arrest of the fugitive offender to Police officials of India in the usual form prescribed under the Code of Criminal Procedure 1898
bThe warrant for arrest accompanied by all such documents as would enable a prima facie case to be established against the accused will be submitted by the Magistrate to the Government of India in the Ministry of External Affairs through the State Government concerned
3This Ministry in consultation with the Ministries of Home Affairs and Law will make a requisition for the surrender of a fugitive offender in the form of a letter requesting the Secretary of State in the case of dominions the appropriate authority in the dominion to get the warrant endorsed in accordance with law
This letter will be addressed to the Secretary of State or other appropriate authority in case of Dominions through the High Commissioner for India in the United KingdomDominion concerned and will be accompanied by the warrant issued by the Magistrate at a of para 2 above and other documents received therewith
 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
To complete the narrative it is necessary to refer to the Extradition Act 34 of 1962
The Parliament has enacted Act 34 333 of 1962 to consolidate and amend the law relating to  extraction of fugitive criminals
It makes provisions by Ch
II for extradition of fugitive criminals to foreign States and to commonwealth countries to which Ch
HI 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 shah apply only to any such commonwealth country to which by reason of an extradition arrangement entered into with that country it may seem expedient to the Central Government to apply the same
2every such application shall be by notified order and the Central Government may by the same or any subsequent notified order direct that this Chapter and Chapters 1 IV and V shall in relation to any such commonwealth country apply subject to such modifications exceptions conditions and qualifications as it may think fit to specify in the order for the purpose of implementing the arrangement
 Section 13 provides that the fugitive criminals from common wealth countries may be apprehended and returned
Chapter IV deals with the surrender or return of accused or convicted persons from foreign States or commonwealth countries
By section 19 it was provided that 1A requisition for the surrender of a person accused or convicted of an extradition offence committed in India and who is or is suspected to be in any foreign State or a commonwealth country to which Chapter III does not apply may be made by the Central Government ato a diplomatic representative of that State or country at Delhi or bto the Government of that State or country throughthe diplomatic representative of India in that State or country and if neither of these modes is convenient the requisition shall be made in such other mode as is settled by arrangement made by the Government of India with that State or country
2A warrant issued by a magistrate in India for the apprehension of any person who is or is suspected to be in any Commonwealth country to which Chapter III applies shall be in such form as may be prescribed
8 Sup CI69 3 334 BY cl
a of section 2 the expression commonwealth country means a commonwealth country specified in the First Schedule and such other commonwealth country as may be added to that Schedule by the Central Government by notification in the Official Gazette and includes every constituent part colony or dependency of any commonwealth country so specified or added 
But in the Schedule to the Act Hong Kong is not specified as one of the commonwealth country and no notification has been issued by the Government of India under section 2a adding to the First Schedule Hong Kong  as a commonwealth country
It is common ground between the parties that the provisions of the  could not be resorted to for making the requisition for surrender of the fugitive offender from Hong Kong and no attempt was made in that behalf
Validity of the action taken by the Chief Presidency Magis trate 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
It may also be pointed out that Form II of the warrant prescribed in Sch
V of the Code of Criminal Procedure only issues a direction under the authority of the Magistrate to a Police Officer to arrest a named person and to produce him before the Court
It does not state that the warrant shall be executed in any designated place or area
By section 82 of the Code of Criminal Procedure a warrant of arrest may be executed at any place in India
That provision does not impose any restriction upon the power of the Police Officer
The section only declares in that every warrant issued by any Magistrate in India may be executed at any place in India execution of the warrant is not restricted to the local limits of the jurisdiction of the Magistrate issuing the warrant or of the Court to which he is subordinate
In Emperor vs Vinayak Damodar Savarkar and Ors
1 the Bombay High Court considered the question whether a person who was brought to the country and was charged before a Magis 1 ILR 335 trate with an offence under the Indian Penal Code was entitled to challenge the manner in which he was brought into the country from a foreign country
Savarkar was charged with conspiracy under sections 121 121A 122 and 123 of the Indian Penal Code
He was arrested in the United Kingdom and brought to India after arrest
under the Fugitive Offenders Act 1881
When the ship in which he was being brought to India was near French territory Savarkar escaped from police custody and set foot on French territory at Marseilles
He was arrested by the police officers without reference to the French police authorities and brought to India
It was contended at the trial of Savarkar that he was not liable to be tried in India since arrest by the Indian police officers in a foreign territory was without jurisdiction
Scott CJ who delivered the principal judgment of the Court rejected the contention
He observed  Where a man is in the country and is charged before a Magistrate with an offence under the Penal Code it will not avail him to say that he was brought there illegally from a foreign country
 It is true that Savarkar was produced before the Court and be raised an objection about the validity of the trial on the plea that he was illegally brought to India after unlawful arrest in foreign territory
In the present case we are concerned with a stage anterior to that
The respondent More though arrested in a foreign country lawfully by the order of the Central Magistrate Hong Kong had not been surrendered and the invalidity of the warrant issued by the Chief Presidency Magistrate is set up as a ground for refusing to obtain extradition of the offender
But on the principle of Vinayak Damodar Savarkar s case1 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
The 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 2 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
But C G Menon s case2 was a reverse case in that the Colonial Secretary of Singapore had made a requisition for 1 ILR 2  336 surrender of the offender for trial for offences of criminal breach of trust in Singapore
Whether having regard to the political status of India since January 26 1950 the Fugitive Offenders Act 1881 insofar as it purported to treat India as a British Possession imposed an obligation to
deliver offenders in pursuance of the India Consequential Provision Act 1949
is a question on which it is not necessary to express an opinion
By the declaration of the status of India as a Republic India has not ceased to be a part of the Commonwealth and the United Kingdom and several Colonies have treated the Fugitive Offenders Act 1881 as applicable to them for the purpose of honouring the requisition made by the Republic of India from time to time
In Re Government of India and Mubarak Ali Ahmed1 an attempt to resist in the High Court in England the requisition by the Republic of India to surrender an offender who had committed offences in India and had fled justice failed
Mubarak Ali a native of Pakistan was being tried in the Courts in India on charges of forgery and fraud
He broke his bail and fled to Pakistan and thereafter to England
He was arrested on a pro  visional warrant issued by the London Metropolitan Magistrate on the application of the Government of India
After hearing legal submissions the Metropolitan Magistrate made an order under section 5 of the Fugitive Offenders Act 1881 for Mubarak Ali s detention in custody pending his return to India to answer the charges made against him
Mubarak Ali then filed a petition for a writ of habeas corpus before the Queen s Bench of the High Court
It was held that the Fugitive Offenders Act 1881 was in force between India and Great Britain on January 261950 when India become a republic and it was continued to apply by virtue of section 1 1 of the India Consequential Provision Act 1949 and therefore the Magistrate had jurisdiction to make the order for the applicant s return
Pursuant to the requisitions made by the Government of India Mubarak Ali was surrendered by the British Government
Mubarak Ali was then brought to India and was tried and convicted
One of the offences for which he was tried resulted in his conviction and an appeal was brought  to this Court in Mobarik Ali Ahmed v The State of Bombay2 There are other cases 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 are public Re
Kwesi Armah3
On July 11960 Ghana while remaining by virtue of the Ghana Consequential 1 31966  2 All ER 10062 3 37 Provision Act 1960 a member of the Comon wealth 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 contravention of the Ghana Criminal Code 1960 by corruption and extortion when he was a public officercommited Kwesi Armah to prison pending his return to Ghana to undergo trial
A petition for a writ of habeas corpus before the Queen  Bench Division of the High Court was refused
Edmund Davies J was of the view that the Act of 1881 applied to the Republic of Ghana in its new form just as it did before the coup d etat of February 1966
The case was then carried to the House of Lords Armah vs Government of Ghana and Another1
The questions decided by the House of Lords have no relevance in this case
But it was not even argued that a fugitive offender from a republic which was a member of the Commonwealth could not be extradited under the Fugitive Offenders Act 1881
There is yet another recent judgment of the House of Lords dealing with repatriation of a citizen of the Republic of Cyprus Zacharia vs Republic of Cyprus and Anr
2 Warrants were issued against Zacharia on charges before the Courts in Cyprus of offences of abduction demanding money with menaces and murder
Under the orders issued by a Bow Street Magistrate under section 5 of the Fugitive Offenders Act 1881 Zacharia was committed to prison pending his return to Cyprus
An application for a writ of habeas corpus on the ground that the offences alleged against him were political and that the application for the return of the fugitive was made out of motive for revenge was rejected by the Queen s Bench Division and it was ordered that Zacharia be repatriated
The order was confirmed in appeal to the House of Lords
Merely because for the purpose of the extradition procedure in a statute passed before the attainment of independence by the former Colonies and dependencies certain territories continue to be referred to as British Possessions the statute does not become inapplicable to those territories
The expression British Possession in the old statutes merely survives an artificial mode of reference undoubtedly not consistent with political realities but does not imply for the purpose of the statute or otherwise political dependence
of the Government of the territories referred to
It is not for the Courts of India to take umbrage at expressions used in statutes of other countries and to refuse to give effect to Indian laws which govern the problems arising before them
1 2  338 It is interesting to note that by express enactment the Fugitive
Offenders Act 1881 remains in force as a part of the Republic of Ireland  see Ireland Act 1949 12 13 and 14 Geo
6 c 41
In Halsbury 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 foot note 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 1947 but the law relating to the definition  of Her Majesty s dominions was not thereby changed and it was continued in being by the India Consequential Provision Act 1949 12 13  14 Geo
6 c 92 passed in contemplation of the adoption of a re publican constitution by India
India is now a sovereign republic but that by itself does not render the Fugitive Offenders Act 1881 inapplicable to India
If the question were a live question we would have thought it necessary to refer the case to a larger Bench for considering the true effect of the judgment in C G Menon s case
But by the Extradition Act 34 of 1962 the Extradition Act 1870 and the latter Acts and also the Fugitive Offenders Act 1881 have been repealed and the question about extradition by India of fugitive offenders under those Acts will not hereafter arise
We are not called upon to consider whether in exercise of the Power under the Fugitive Offenders Act a Magistrate in India may direct extradition of a fugitive offender from a British Possession who has taken refuge in India
It is sufficient to observe that the Colonial Secretary of Hong Kong was according to the law applicable in Hong Kong competent to give effect to the warrant issued by the Chief Presidency Magistrate Calcutta and the Central 11955 1 SCR 280
339 Magistrate Hong Kong had jurisdiction under the Fugitive Offender Act and after holding inquiry to direct that More be surrendered to India
The order of surrender was valid according to the law in force in Hong Kong and we are unable to appreciate the grounds on which invalidity can be attributed to the warrant issued by the Chief Presidency Magistrate Calcutta for the arrest of More
That the Chief Presidency Magistrate was competent to issue a warrant for the arrest of More against whom there was prima facie evidence to show that he had committed an offence in India is not denied
If the Chief Presidency Magistrate had issued the warrant to the Commissioner of  Police and the Commissioner of Police had approached the Ministry of External Affairs Government of India either through the local Government or directly with a view to secure the assistance of the Government of Hong Kong for facilitating extradition of More no fault can be found
But Gupta J and Mukherjee J thought that the notification issued by the Government 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 issue the warrant in the manner he had done came nowhere near the law and to a Court of law it is waste paper beneath its notice appear to proceed upon an incorrect view of the object of tile notification
The Chief Presidency Magistrate had the power to issue the warrant for the arrest of More because there was prima facie evidence before him that More had committed certain offences which he was competent to try
The warrant was in Form II of Sch
V of the Code of Criminal Procedure
If the warrant was to be successfully executed against More who was not in India assistance of the executive Government had to be obtained
It is not an invasion upon the authority of the Courts when they are informed that certain procedure may be followed for obtaining 340 the assistance of the executive Department of the State in securing through diplomatic channels extradition of fugitive offenders
In pursuance of that warrant on the endorsement made by the Central Magistrate Hong Kong More was arrested
The warrant was issued with the knowledge that it could not be enforced within India and undoubtedly to secure the extradition of More
Pursuant to the warrant the Ministry of External Affairs Government of India moved through diplomatic channels and persuaded the Colonial Secretary of Hong Kong to arrest and deliver More
Issue of the warrant and the procedure followed in transmitting the warrant were not illegal not even irregular
One more argument remains to be noticed
It is true that under the Extradition Act 34 of 1962 no notification has been issued including Hong Kong in the list of the Commonwealth countries from which extradition of fugitives from justice may be secured
The provisions of the  cannot be availed of for securing the presence of More for trial in India
But that did not in our judgment operate as a bar to the requisition made by the Ministry of External Affairs Government of India if they were able to persuade the Colonial Secretary Hong Kong to deliver More for trial in this country
If the Colonial Secretary of Hong Kong was willing to hand over More for trial in this country it cannot be said that the warrant issued by the Chief Presidency Magistrate for the arrest of More with the aid of which requisition for securing his presence from Hong Kong was to be made was illegal
We are unable to agree with the High Court that because of the enactment of the 34 of J962 the Government of India is prohibited from securing through diplomatic channels the extradition of an offender for trial of an offence committed within India
There was in our judgment no illegality committed by the Chief Presidency Magistrate Calcutta in sending the warrant to the Secretary Home Political Department Government of West Bengal for transmission to the Government of India Ministry of External Affairs for taking further steps for securing the presence of More in India to undergo trial
The appeal must therefore be allowed and the order passed by the High Court set aside Me writ petition filed by More must be dismissed
YP Appeal allowed


Summary:
After this Court held in State of Madras vs C G Menon  that the Fugitive Offenders Act 1881 was inconsistent with article 14 of the Constitution and was on that account unenforceable after 26th January 1950 the Government of India Ministry of External Affairs issued a notification on May 21 1955 indicating the procedure for securing the presence of a fugitive offender in India from the United Kingdom and other Commonwealth countries
Under the Notification the Magistrate concerned is to issue a warrant of arrest of the fugitive offender under the Criminal Procedure Code 1898 and the warrant is to be sent to the Government of India Ministry of External Affairs through the concerned State Government
Thereafter the Ministry is to address the appropriate authority in the Commonwealth country through the High Commissioner for India for the surrender of the fugitive offender
In 1962 the Indian Extradition Act was passed but as Hong Kong was not included in the First Schedule that Act could not be resorted for the surrender of the respondent who was a fugitive offender residing in Hong Kong
Action was therefore taken in the present case pursuant to the notification
The Chief Presidency Magistrate Calcutta issued a warrant under the Criminal Procedure Code for the arrest of the respondent and the warrant was forwarded by the Government of West Bengal to the Ministry of External Affairs Government of India
The Ministry forwarded the warrant to the High Commissioner for India Hong Kong who in his turn requested the Colonial Secretary Hong Kong for an order extraditing the respondent under the Fugitive Offenders Act 1881 44  45 Vict Ch 69
The Central Magistrate Hong Kong endorsed the warrant and directed the Hong Kong police to arrest the respondent referring to the Republic of India as a British possession to which the Fugitive Offenders Act was applicable
On the questions  1 Whether the Chief Presidency Magistrate had no power to issue the warrant as it would have extraterrestrial operation 2 Whether the Fugitive Offenders Act having ceased to be part of the law of India could be resorted to for obtaining extradition of fugitive offenders 3 Whether the instructions of the Government of India for obtaining extradition are an invasion upon the authority of courts and 4 Whether the  operates as a bar to the requisition made by the Ministry of External Affairs for the extradition of the respondent HELD  1 The Courts of the country which make a requisition for surrender proceed upon prima facie proof of the offence and leave it to the State to make a requisition upon the other State in which the offender has taken refuge
Under section 82 of the Criminal Procedure Code when a warrant is issued by a Magistrate in India it can be executed anywhere 321 in India and has no extra territorial operation
By making a requisition to another State in pursuance of such a warrant for assistance in securing the presence of the offender the warrant is not invested with extraterritorial operation
If the other State requested Agrees to lend its aid to arrest the fugitive the arrest is made by the issue of an independent warrant or endorsement or authentication of the warrant of the court which issued it
By such endorsement or authentication the State expresses its willingness to lend its assistance in implementation of treaties or international commitments 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 requisition is made and that court holds enquiry to determine whether the offender may be extradited
326 F327B Courts in India have no authority to sit in judgment over the order passed by the Hong Kong Magistrate
He acted in accor dance with the municipal law of Hong Kong and agreed to surrender the offender  his action cannot be challenged in this Court even if it is wrong
The invalidity of the arrest in Hong Kong if any cannot affect the jurisdiction of Indian Courts to try the respondent if and when he is brought here
334 Emperor vs Vinayak Damodar Savarkar ILR  approved
2But in fact the Colonial Secretary of Hong Kong was according 0 the law applicable in Hong Kong competent to give effect to the warrant issued by the Chief Presidency Magistrate Calcutta and the Central Magistrate Hong Kong had jurisdiction under the Fugitive Offenders Act to direct that the respondent may be surrendered to India
Whatever may he the position in India after it has become a Republic the United Kingdom and several Colonies have treated the Fugitive Offenders Act is applicable for the purpose of honouring the requisition made by the republic of India
Merely because for the purpose of the extradition procedure in a statute passed before the attainment of independence by the former colonies and dependencies certain territories continue to be referred as British Possessions  the statute does not become inapplicable to those territories
The expression British Possessions  in the old statutes merely survives as an artificial mode of reference
Though it is not consistent with the political realities it does not imply political dependence of the Governments of the territories referred to
The order of surrender passed by the Magistrate in Hong Kong was valid according to
the law in force in Hong Kong
338 H 337G Re
Government of India and Mubarak Ali Ahmed  Re
Kweshi Armah  Zacharia vs Republic of Cyprus  and Halsbury s Laws of England 3rd edn
5 article 987 p 433 referred to
3 This Court by holding in C G Menon s case that since India became a Republic the Fugitive Offenders Act could not be enforced in his country presented the Government of India with a problem which had to be resolved by devising a machinery for securing the presence of fenders who were fugitives from justice
The notification was issued only in the nature of advice about the procedure to be followed and was not in any manner intended as an affront to the Courts or to impose any executive will upon the courts in judicial matters
339 E F In the present case the Chief Presidency Magistrate Calcutta had power to issue the warrant for the arrest of the respondent because there was prima facie evidence against him
If the warrant was to be success 322 fully executed a against the
Respondent who was not in India the assistance of the executive government had to be obtained
Therefore the issue of the warrant and the procedure followed in transmitting it were not illegal and not even irregular
4Extradition is the surrender by one State to another of a person desiredto be dealt with for crimes of which he had been accused or convicted
Such a surrender is a political act done in pursuance of a treaty or an ad hoc arrangement and founded upon the principle that it is in the interest of all civilised communities that criminals should not go unpunished
While the law relating to extradition between independent States is based on treaties whether an offender should be handed over pursuant to a requisition is determined by the domestic law of the State on which the requisition is made
Therefore the fact that the  could not be availed of for securing the presence of the respondent for trial in India did not operate as a bar to the requisition made by the Ministry of External Affairs Government of India if they were able to puksuade the Colonial Secretary Hong Kong to deliver the respondent for trial in this country
if the Colonial Secretary was willing to do so it cannot be said that the warrant issued by the Chief Presidency Magistrate Calcutta for the arrest of the respondent with the aid of the requisition for securing his presence from Hong Kong in India was illegal
325 H 340 C F