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PETITIONER: DR. BABU RAM SAKSENA

       Vs.

RESPONDENT: THE STATE

DATE OF JUDGMENT: 05/05/1950

BENCH: SASTRI, M. PATANJALI BENCH: SASTRI, M. PATANJALI KANIA, HIRALAL J. (CJ) FAZAL ALI, SAIYID MAHAJAN, MEHR CHAND DAS, SUDHI RANJAN MUKHERJEA, B.K.

CITATION:  1950 AIR  155            1950 SCR  573

ACT:               Constitution     of     India--Merger       of States--Effect--Treaty  of Extradition between British  Gov- ernment    and   indian   State--Whether   subsists    after merger--Extradition Act, 1903, ss. 7, 18.--Provision in  Act for extradition for additional offences--Whether "derogates" from    Treaty--Extradition    warrant    for     additional offences--Legality.

HEADNOTE:    In  1869  the British Government and the State  of  Tonk entered into a treaty which provided for  the extradition of offenders  in respect of certain offences specified  therein called  "heinous  offences," which did not include  the  of- fences  of  cheating and extortion.  In  1903   the   Indian Extradition Act was passed which provided for extradition in respect of cheating and extortion also, but s. 18 of the Act provided  that nothing contained in the Act "shall  derogate from  the  provisions of any treaty for the  extradition  of offenders."  Under the Independence of India Act, 1947,  the suzerainty of His Majesty over the Indian States lapsed  and with  it all treaties and agreements in force; but  under  a "standstill agreement," between the Indian Dominion and  the States  (including Tonk) all agreements between His  Majesty and  the  States  were continued,  including  agreements  in respect  of  extradition.  Tonk acceded to the  Dominion  of India in 1947 and became a member State of the United  State of  Rajasthan.   The  appellant was a member  of  the  Uttar Pradesh  Civil  Service and his services were  lent  to  the State  of Tonk in 1948. After he had reverted to  the  Uttar Pradesh  he  was charged with the offences of  cheating  and extortion  alleged  to have been committed while he  was  in Tonk  and was arrested under an extradition  warrant  issued under s. 7 of the Extradition Act, 1903.  He  applied  under es.  4=91 and 561-A of  the Code of Criminal  Procedure  for his  release, contending that in view of the  provisions  of s. 18 of the Extradition  Act and the Treaty of  Extradition of 1869, his arrest was illegal:

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   Held   per  KANIA O. J. and PATANJALI SASTRI  J.  (FAZL, ALI.  J.  concurring),--Even assuming that  the  Extradition Treaty of 1869 subsisted after the merger of the Tonk State, by  providing  for extradition for additional  offences  the Extradition Act of 1903 did not derogate from the provisions of  the  Treaty  of 5869 or the rights  of  Indian  citizens thereunder,  and the arrest and surrender of  the  appellant under s. 7 of the Act was not, therefore, rendered  unlawful by anything contained in the said Treaty. 574     Per MUKHERJEA J. (FAZL ALI, MAHAJAN and DAS JJ.  concur- ring).--The  Extradition Treaty of 1869 was not  capable  of being  given  effect to in view of the merger  of  the  Tonk State in the United State of Rajasthan, and, as no  enforce- able  treaty right existed, s. 18 of the Extradition Act  of 1903  had no application; and inasmuch as the conditions  of s. 7 of the said Act had been complied with, the warrant  of arrest issued under s. 7 of the Act was not illegal.

JUDGMENT: APPELLATE JURISDICTION: Criminal Appeal No. II of 1949.    Appeal by special leave from the judgment of the  Allaha- bad  High  Court (Harish Chandra J.)  dated  11th  November, 1949,  in Criminal Miscellaneous Case No. 960 of 1949.   The facts  of the case and the arguments of counsel are set  out fully in the judgment.    Alladi  Krishnaswami Iyer (Alladi Kuppuswami  with  him) for the appellant.     M.C. Setalvad, Attorney-General for India (V. N.  Sethi, with him) for the respondent.     1950.  May 5.  The judgment of Kania C.J. and  Patanjali Sastri J. was delivered by           PATANJALI SASTRI J.--This is an appeal by special leave from an order of the High Court at Allahabad  dismiss- ing an application under sections 491 and 561-A of the  Code of  Criminal Procedure for release of the appellant who  was arrested  in pursuance of an extradition warrant  issued  by the  Regional Commissioner of the United State of  Rajasthan who  is the principal officer representing the Crown in  the territory of that State.    The appellant who is a member of the Uttar Pradesh  Civil Service  was appointed in 1948 to serve what was then  known as  the  Tonk State in various capacities, and  during  such service he is alleged to have helped the Nawab in  obtaining the  sanction of the Government of India to the  payment  of Rs. 14 lakhs to the Nawab out of the State Treasury for  the discharge  of  his debts, and to have induced the  Nawab  by threats  and deception to pay the appellant, in  return  for such help, sums totalling Rs. 3 lakhs on various dates.   On these  allegations  the  appellant is  charged  with  having committed offences under section 383 (Extortion) and 575 section  420 (Cheating) of the Indian Penal Code  which  are extraditable offences under the Indian Extradition Act, 1903 (hereinafter  referred  to as "the Act").  The  warrant  was issued  under  section 7 of the Act to the  District  Magis- trate,  Nainital,  where the appellant  was  residing  after reverting to the service of the Uttar Pradesh Government, to arrest  and  deliver him up to the  District  Magistrate  of Tonk.     The appellant’s case is that the sum of Rs. 3 lakhs  was paid  to  him by the Nawab to be kept in safe deposit  in  a bank  for  the  Nawab’s use in Delhi, that  no  offence  was

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committed and that the amount was returned when demanded  by the  authorities of the Tonk State.  The warrant was  issued mala fide on account of enmity. Various technical objections were  also raised to the validity of the warrant and to  the jurisdiction  of the Magistrate at Nainital to  take  cogni- sance of the matter and arrest the appellant. The High Court overruled  all the objections and dismissed the  application for the release of the appellant.     On behalf of the appellant Mr. Alladi Krishnaswami Aiyar contended that section 7 of the Act under which the  warrant purports to have been issued had no application to the  case and  that the entire proceedings before the Magistrate  were illegal  and  without jurisdiction and  should  be  quashed. Learned  counsel,  relying on section 18 of  the  Act  which provides that nothing in Chapter III (which contains section 7) shall "derogate from the provisions of any treaty for the extradition of offenders," submitted that the treaty entered into  between the British Government and the Tonk  State  on the  28th January, 1869, although declared by section  7  of the  Indian Independence Act, 1947, to have lapsed  as  from the 15th August, 1947, was continued in force by the "Stand- still Agreement" entered into on the 8th August, 1947,  that that  treaty  exclusively governed all matters  relating  to extradition between the two States, and that, inasmuch as it did  not cover the offences now charged against  the  appel- lant,  no extradition of the appellant could be demanded  or ordered. 576     The  Attorney-General appearing for the  Government  ad- vanced three lines of argument in answer to that contention. In  the first place, the standstill agreement  entered  into with  the  various Indian States were purely  temporary  ar- rangements  designed  to maintain  the status  quo  ante  in respect of certain administrative matters of common  concern pending  the  accession of those States to the  Dominion  of India, and they were superseded by the Instruments of Acces- sion  executed by the Rulers of those States.   Tonk  having acceded to the Dominion on the 16th August, 1947, the stand- still agreement relied on by the appellant must be taken  to have lapsed as from that date.  Secondly, the treaty was  no longer  subsisting and its execution became  impossible,  as the  Tonk State ceased to exist politically and such  sover- eignty as it possessed was extinguished, when it  covenanted with  certain  other  States, with the  concurrence  of  the Indian Government "to unite and integrate their  territories in  one  State,  with a common  executive,  legislature  and judiciary,  by the name of the United State  of  Rajasthan," the  last  of such covenants, which superseded  the  earlier ones,  having  been entered into on the  30th  March,  1949. Lastly, even assuming that the treaty was still in operation as  a binding executory contract, its provisions were in  no way  derogated from by the application of section 7  of  the Act to the present case, and the extradition warrant  issued under that section and the arrest made in pursuance  thereof were  legal  and valid and could not be called  in  question under section 491 of the Criminal Procedure Code.  As we are clearly of opinion that the appellant’s contention must fail on this last ground, we consider it unnecessary to pronounce on the other points raised by the AttorneyGeneral especially as the issues involved are not purely legal but partake also of  a political character, and we have not had the views  of the Governments concerned on those points.      It  was  not disputed before us that the  present  case would fall within section 7 of the Act, all the requirements thereof being satisfied, if only the applicability of

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577 the section was not excluded, under section 18, by reason of the  Extradition  Treaty  of 1869, assuming  that  it  still subsists.  The question accordingly arises whether  extradi- tion under section 7 for an offence which is not  extradita- ble under the treaty is, in any sense, a derogation from the provisions of the treaty, which provides for the extradition of  offenders for certain specified offences therein  called "heinous offences," committed in the respective  territories of  the high contracting parties.  Under article 1 the  Gov- ernment  of the Tonk State undertakes to extradite any  per- son,  whether a British or a foreign subject, who commits  a heinous  offence in British territory. A reciprocal  obliga- tion  is  cast  by article 2 on the  British  Government  to extradite  a  subject  of Tonk committing  such  an  offence within  the limits of that State. Article 3 provides,  inter alia, that any person other than a Tonk subject committing a heinous  offence  within the limits of the  Tonk  State  and seeking asylum in British territory shall be apprehended and the  case investigated by such Court as the British  Govern- ment  may direct.  Article 4 prescribes the procedure to  be adopted  and the conditions to be fulfilled before  extradi- tion  could  be had, and article 5 enumerates  the  offences which  are  "to be deemed as coming within the  category  of heinous  offences"  which, however, do not include  the  of- fences charged against the appellant.     The  argument on behalf of appellant was put  thus:  The maxim  expressio unius est exclusio alterius is  applicable, as pointed out by McNair on The Law of Treaties,  (1938--pp. 203, 204), to the interpretation of treaties.  According  to that rule the treaty in question should be read as  allowing extradition  only  for  the specified offences  and  for  no others, that is to say, as implying a prohibition of  extra- dition  by  either State for any other  offence  than  those enumerated in article 5. Further, while the treaty  entitled each  of the high contracting parties to demand  extradition on  a  reciprocal basis, an unilateral  undertaking  by  the Indian  Government to grant extradition for an  offence  for which it could not claim extradition under the treaty 578 violates  the principle of reciprocity which is  the  recog- nised  basis of all international compacts for  extradition. Such  an  arrangement  places the State of Tonk  in  a  more advantageous  position  which was not  contemplated  by  the framers of the treaty.  And where, as here, the person whose surrender is demanded is an Indian subject who is not liable to  be  extradited  under the treaty,  his  surrender  under section  7 trenches upon the liberty of the subject.  In  so far, therefore, as that section authorises extradition of  a person,  especially  when he is an Indian  subject,  for  an offence  which  is  not extraditable under  the  treaty,  it derogates  from  the  provisions of the  treaty  within  the meaning  of section 18, and its application to  the  present case is thereby excluded. The argument proceeds on a miscon- ception and cannot be accepted.     No doubt the enumeration of "heinous offences" in  arti- cle 5 of the treaty is exhaustive in the sense that the high contracting  parties are not entitled, under the treaty,  to claim extradition of criminals in respect of other offences. But  we  cannot agree that such  of  enumeration  implies  a prohibition  against either those parties providing  by  its own municipal laws for the surrender of criminals for  other offences  not  covered by the treaty.  It  is  difficult  to imagine  why  the  contracting States should  place  such  a fetter on their respective legislatures in advance not  only

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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

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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

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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

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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

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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

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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

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make  laws    for  the State."  "Extradition  including  the surrender of   criminals and accused persons to parts of His Majesty’s    Dominion outside India" is one of  the  matters specified    in  the Schedule. Thus the State  gave  up  and surrendered in favour of the Dominion Legislature its right, to    legislate in respect to extradition after the date  of accession.   Whether the existing Extradition  Treaty    was ipso facto abrogated by this Instrument of Accession is  not so clear.  Obviously, the Indian Dominion 589 could  pass  any legislation it liked regarding  matters  of extradition  between  the Tonk State, and any  other  State, either   Indian   or Foreign.  No such  law  was,   however, passed  by  the   Indian   Legislature  except   that   very recently  under  an  Adaptation Order  the  Extradition  Act of  1903  has  been made applicable to States under Group  B in  the Indian Constitution in which Rajasthan is  included. It is to be noted that the Extradition Act itself, which  is made  applicable to the United State of Rajasthan,  contains an express provision in section 18 which safeguards   exist- ing treaty rights.  It is somewhat unusual that an  Extradi- tion  Treaty  would be subsisting even after the  State  had acceded  to  India but we have no materials before  us  upon which  we  could definitely  hold that the Treaty  has  been expressly superseded or abrogated by the Indian Legislature.     The  next important thing is that in April, 1948,  there was  a  Covenant entered into by the Rulers of  nine  States including  Tonk, by which it was agreed by and  between  the covenanting  parties   that  the territories of  these  nine States  should be integrated into one State by the  name  of the  United  State  of Rajasthan.  This was  done  with  the concurrence of the Dominion of India.  Later on, on 12th  of May,    1949, Mewar also became a party to this Covenant and the  United  State  of Rajasthan was  reconstituted  by  the integration of the territories of all the ten States. By the Covenant  of Merger, the Covenanting States agreed to  unite and  integrate their territories in one State known  as  the United  State of Rajasthan and to have a  common  executive, legislature  and  judiciary. The Rulers of  all  the  States became  members of the Council of Rulers and  the  President was  designated  as  the Raj Pramukh of  the  United  State. Article VI of the Covenant of Merger runs as follows:    "(1)  The Ruler of each Covenanting State shall, as  soon as practicable and in any event not later than the first day of  May, 1948, make over the administration of his State  to the Raj Pramukh; and thereupon -- 590     (a) all rights, authority and jurisdiction belonging  to the  Ruler which appertain or are incidental to the  Govern- ment of the Covenanting State shall vest in the United State and shall hereafter be exercisable only as provided by  this Covenant or by the Constitution to be framed thereunder;     (b) all  duties  and  obligations  of the Ruler pertain- ing or incidental to the Government of the Covenanting State shall devolve on the United State and shall be discharged by it; and     (c)  all the assets and liabilities of  the  Covenanting State  shall  be the assets and liabilities  of  the  United State."     The   question  now  is how far  was   the   Extradition Treaty  between  the Tonk State and the  British  Government affected  by  reason  of the merger of the  State  into  the United  State  of Rajasthan. When a State  relinquishes  its life  as  such through incorporation into or  absorption  by another State either voluntarily or as a result of  conquest

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or annexation, the general opinion of International  Jurists is that the treaties of the former are automatically  termi- nated.  The result is said to be produced by reason of  com- plete loss of personality consequent on extinction of  State life(1).  The cases discussed in this connection are  gener- ally  cases where independent States have ceased to be  such through constrained or voluntary absorption by another  with attendant  extinction  of the former’s treaties  with  other States.   Thus  the forceable incorporation of Hanover  into the  Prussian  Kingdom destroyed the  previous  treaties  of Hanover.   The admission of Texas into the United States  of America by joint resolution extinguished the Treaties of the Independent Republic of Texas(2).  The position is the  same when Korea merged into Japan.  According to Oppenheim, whose opinion  has been relied upon, by Sir Alladi, no  succession of  rights and duties ordinarily takes place in such  cases, and as political and personal treaties presuppose the exist- ence of a contracting State, (1)  Vide Hyde on International Law, Vol. III, p. 1529.  (2) Vide Hyde on International Law, Vol. II1, p. 1531, 591 they  are altogether extinguished.  It is a debatable  point whether succession takes place in cases of treaties relating to  commerce or extradition but here again the  majority  of writers  are of opinion that they do not survive  merger  or annexation(1).     The  remarks  quoted above do not, however,  seem  quite appropriate to a case of the present description. Here there was no absorption of one State by another which would put an end  to  the  State life of the former  and  extinguish  its personality.   What  happened here was that  several  States voluntarily united together and integrated their territories so  as to form a larger and composite State of  which  every one of the covenanting parties was a component part.   There was  to be one common executive, legislature  and  judiciary and the Council of Rulers would consist of the Rulers of all the Covenanting States.  It may not be said, therefore, that the Covenanting States lost their personality altogether and it is to be noted that for purposes of succession of  Ruler- ship  and for counting votes on the strength  of  population and  other  purposes  the Covenant of  Merger  recognises  a quasi-separation  between the territories of  the  different States.   But although such separation exists for some  pur- poses  between one State territory and another, it is  clear that  the  inhabitants of all the different  States  became, from the date of merger, the subjects of the United State of Rajasthan and they could not be described as subjects of any particular State.  There is no such thing as subject of  the Tonk State existing at the present day and the Ruler of Tonk cannot independently and in his own right exercise any  form of  sovereignty  or control over the  Tonk  territory.   The Government,  which exercises sovereign powers, is only  one, even though the different Rulers may have a voice in it.  It seems to us that in those altered circumstances the Extradi- tion  Treaty  of    1869 has become  entirely  incapable  of execution.  It is not possible for the Tonk State, which  is one of the contracting parties to act in accordance with the terms of the treaty, for it has no longer any independent (1) Oppenheim on International Law, Vol. I, p. 152, 592 authority  or sovereign rights over the Tonk  territory  and can  neither make nor demand extradition.  When as a  result of amalgamation or merger, a State loses its full and  inde- pendent power of  action over the subject-matter of a treaty previously   concluded,   the  treaty    must    necessarily

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lapse(1).    It  cannot be said that the sovereignty of  the Tonk State in this respect is now vested in the United State of  Rajasthan.  The  authority, so far  as  extradition  was concerned,  was  already surrendered by the  Tonk  State  in favour  of  the  Dominion Government by  the  Instrument  of Accession.  But even assuming that these treaty rights could devolve  upon  the United State of Rajasthan  by  reason  of article 6 of the Covenant of Merger, the latter, it seems to me, could be totally incapable of giving effect to the terms of the treaty.  As has been said already, there could be  no such  thing  as a subject of the Tonk State at  the  present moment and article 2 of the Treaty which provides for extra- dition of Tonk subjects accused of having committed  heinous offences within Tonk territory and seeking asylum  elsewhere would be wholly infructuous.  The United State of  Rajasthan could  not possibly demand extradition on the basis of  this article,  and  if reciprocity, which is the  essence  of  an Extradition Agreement, is gone, the Treaty must be deemed to be void and inoperative.     The  decision in Terlinden v. Ames (2) which was  relied upon by Sir Alladi in course of his arguments, rather forti- fies  the  view that I have taken.  The question  there  was whether an Extradition Treaty between Prussia and the United States of America, which was entered into in 1852, could  be given effect to after the incorporation of Prussia into  the German Empire. The question was answered in the affirmative. It  was pointed out inter alia that the Constitution of  the German  Empire left sufficient independent power and  sover- eignty  to the States composing the confederation to  enable them to act upon these treaties and it was observed by Chief Justice Fuller, who delivered the opinion of the Court, that where sovereignty in respect (1)  Vide Hyde on International Law, Vol. III. p. 1535.  (2) 184 U. S. 270. 593 to  the  execution of treaties is not extinguished  and  the power  to execute remains unimpaired,  outstanding  treaties cannot be regarded as void.  This is the real criterion  and as  obviously  the power of the Tonk State  to  execute  the treaty is altogether gone after the Covenant of Merger,  the treaty cannot but be regarded as void.     The other case cited by Sir Alladi, viz., that of Lazard Brothers  v. Midland Bank Ltd.(1) has absolutely no  bearing on this point. It laid down the well accepted proposition of International Law that a change in the form of government of a  contracting  State does not put an end to  its  treaties. The treaty entered into by the Czarist Russia could be given effect to after the Revolution, once the new government  was recognised as a person in International Law.     My conclusion, therefore, is that the Extradition Treaty between the Tonk State and the British Government in 1869 is not  capable of being given effect to in the present day  in view of the merger of the Tonk State in the United State  of Rajasthan.   As  no treaty rights exist, section 18  of  the Indian  Extradition Act has no application and section 7  of the  Act  has been complied with, there is  no  ground  upon which we can interfere.     In  view of my decision on the first point,  the  second point  does  not require determination and  I  refrain  from expressing any opinion upon it. In the result, the appeal fails and is dismissed.     DAS  J  I substantially agree with the reasonings  given in the judgment just delivered by my learned brother Mukher- jea and concur in dismissing this application. Appeal dismissed.

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Agent  for  the appellant: Rajinder Narain.  Agent  for  the respondent: P.A. Mehta. 594