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IN SUPREME COURT OF INDIA Page 1 of 18

Vs.

RESPONDENT:
JUGAL KISHORE MORE & ANR.

DATE OF JUDGMENT:
10/01/1969

BENCH:
SHAH, J.C.
BENCH:
SHAH, J.C.
RAMASWAMI, V.
GROVER, A.N.

CITATION:
1969 AIR 1171 1969 SCR (3) 320
1969 SCC (1) 440

ACT:
Extradition-Nature of-Fugitive Offenders Act (44 & 45 Vict
c. 69 of 1881)-Inapplicability in Republic of India, if bar
to obtain extradition of fugitive offenders from another
Commonwealth country-Extradition Act (34 of 1962), effect
of.

HEADNOTE:
After this Court held in State of Madras v. C. G. Menon,
[1955] 1 S.C.R. 280 that the Fugitive Offenders Act, 1881,
was inconsistent with Art. 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
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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 Extradition Act,
1962, 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 s. 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 v. Vinayak Damodar Savarkar, I.L.R. 35 Bom. 225,
approved.
(2)But, 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
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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, [1952] 1 All
E.R., 1960, Re. Kweshi Armah [1966] 2 All E.R. 1006,
Zacharia v. Republic of Cyprus, [1962] 2 All. E.R. 438 and
Halsbury’s Laws of England 3rd edn. Vol. 5 Art. 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.
(4)Extradition 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 Extradition Act, 1962, 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]

JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal 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. S. 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 ss.
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420, 467, 471 and 120 B.I.P. 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. K/52/ 6131/41 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 S. 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 S.R. and 0. No.
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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 S. 439 of the Code
of Criminal Procedure and Art. 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
S. 3 of the Extradition Act, 1962, 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
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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 Extradition Act 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 s. 3 of the Extradition Act,
1962, 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
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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 Extradition Act 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 i.e., States to which the
Extradition Act of 1870 and 1873 applied and in Ch. II for
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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
Extradition Act 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
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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 S. 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-s. (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.
(3)His Majesty may by Order in Council make
provision for such satisfaction of any
existing law to which this Act extends as may
appear to him to be necessary or expedient in
view of India’s becoming a republic while
remaining a member of the Commonwealth, and
sub-s. (1) of this section shall have effect
in relation to any such law as modified by
such an order in so far as the contrary
intention appears in the order. An Order in
Council under this section-
(a)may be made either before or after India
becomes a republic, and may be revoked or
varied by a subsequent Order in Council’, and
330
(b)shall 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 v. C.
G. Menon and Another(1). 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.
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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
(2)Whether, 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 Art. 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
(1)[1955] 1 S.C.R. 280.
331
Act, 1903, 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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 18
Indian Extradition Act, 1903, has been adapted
but the Fugitive Offenders Act, 1881, which
was an Act of the British Parliament has been
left severely alone. The provisions of that
Act could only be made applicable to India by
incorporating them with appropriate changes
into an Act of the Indian Parliament and by
enacting an Indian Fugitive Offenders Act. In
the absence of any legislation on those lines
it seems difficult to hold that section 12 or
section 14 of the Fugitive Offenders Act has
force in India by reason of the provisions of
article 372 of the Constitution. The whole
basis for the applicability of Part II of the
Fugitive Offenders Act has gone : India is no
longer a 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.
2.In 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;
(a)The 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.
(b)The 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.
3.This Ministry, in consultation with the
Ministries ,of Home Affairs, and Law, will
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 18
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 Kingdom/Dominion concerned and will be
accompanied by the warrant issued by the
Magistrate at (a) of para 2 above and other
documents received therewith."
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 s. 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.
(2)every 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 s. 19 it was provided that-
(1)A 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-
(a)to a diplomatic representative of that
State or country at Delhi; or
(b)to 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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 18
Government of India with that State or
country.
(2)A 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 CI/69-3
334
BY cl. (a) of s. 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 S. 2(a) adding to the First
Schedule "Hong Kong’ as a commonwealth country. It is
common ground between the parties that the provisions of the
Extradition Act, 1962, 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 s. 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 v. 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) I.L.R. 35 Bom. 225.
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 ss. 121, 121A, 122 and 123 of
the Indian Penal Code. He was arrested in the United
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 18
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, C.J., 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 case(1) 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 Indian Extradition Act 15 of 1903 which was enacted to
provide for the more convenient administration of the
English Extradition Act, 1870 & 1873 and the Fugitive
Offenders Act. 1881, remained in operation. But after
January 26, 1950, India is no longer a "British Possession."
In C. G. Menon’s case (2) it was decided by this Court that
application of ss. 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 case(2) was a reverse case, in that, the
Colonial Secretary of Singapore had made a requisition for
(1) I.L.R. 35 Bom. 225. (2) [1955] 1 S.C.R. 280.
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 Ahmed(1) 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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 15 of 18
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 s. 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 26,,1950, when
India become a republic and it was continued to apply by
virtue of S. 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 Bombay(2)
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 Armah(3). On
July 1,1960, Ghana while remaining by virtue of the Ghana
(Consequential
(1) [1952] 1 All E.R. 1060.
(3)[1966] 2 All E.R. 1006.(2) [1958] S.C.R. 328.
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 officer,commited 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 v. Government of Ghana and Another(1).
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 v. 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 s. 5 of the Fugitive Offenders Act, 1881,
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 16 of 18
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) [1966] 3 All E.R. 177.
(2) [1962] 2 All E.R. 438.
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 Art. 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
s. 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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 17 of 18
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
(1)[1955] 1 S.C.R. 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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 18 of 18
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
Extradition Act, 1962, 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 Extradition Act 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.
Y.P. Appeal allowed.
241