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PETITIONER: STATE OF WEST BENGAL

       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

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             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

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             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

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             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

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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

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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,

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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

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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

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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