dedol-hf/india-case-legal-rag huggingface dataset:
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 v. Wilson(1).  This, it
was  observed by Cockburn C.J. 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) 3 Q.B.D. 42.
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 Indian Extradition Act,  1903,
by  Shri V.K.B. 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. 21/2 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. 1,50,000 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.
1,50,000 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 U.P. 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 Indian Extradition Act, 1903, 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
Indian  Extradition Act 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 Indian Extradition Act  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 Indian Extradition  Act
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 Indian Extradition  Act  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