19 May 1954
Supreme Court


Case number: Appeal (crl.) 33 of 1953






DATE OF JUDGMENT: 19/05/1954


CITATION:  1954 AIR  517            1955 SCR  280  CITATOR INFO :  E          1969 SC1171  (15,20,21,25)  RF         1973 SC1461  (587)

ACT: Constitution  of India-India-Sovereign  Democratic  Republic -Fugitive Offenders Act, 1881 (44 Victoria Chapter 69),  ss. 12  and  14-Whether applies to India after the  coming  into force  of  the Constitution-Indian Extradition Act,  (XV  of 1903)-Adaptation  under art. 372 of the  Constitution-Effect of.

HEADNOTE: After  the achievement of independence and the  coming  into force of the new Constitution India became a Sovereign Demo- cratio  Republic  and could not be described  as  a  British Possession  or grouped by an Order-in-Council amongst  those Possessions  within  the meaning of S. 12  of  the  Fugitive Offenders Act, 1881.  It became a foreign country so far  as other British Possessions &re 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  Indian Extradition Act, 1903 (Act XV of 1903) has  been adapted   under  the  provisions  of  article  372  of   the Constitution  but  this Act has not kept &live  any  of  the provisions of the Fugitive Offenders Act, 1881, which was an act of the British Parliament and which has not been adopted and  therefore  section 12 and section 14  of  the  Fugitive Offenders Act, 1881, have no application to India.

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION: Criminal Appeal No. 33  of 1953. Appeal  under  article 132(1) of the Constitution  of  India from the Judgment and Order, dated the 20th February,  1953,



of  the  High  Court of Judicature  at  Madras  in  Criminal Revision Case No. 1034 of 1953 (Criminal Reference No. 51 of 1953). C.. Daphtary, Solicitor-General for India, V. K. T. C  Chari, Advocate-General for Madras (Porus A.   Mehta   and  P.   G. Gokhale, with them) for the appellant. M.   K.  Nambiar,  (S.   Subramanian,  with  him)  for   the respondent. C.K. Daphtary, Solicitor-General for India (Porus A.   Mehta and  P.  G. Gokhale with him) for the Intervener  (Union  of India). 281 1954.  May 19.  The Judgment of the Court was delivered by MEHAR   CHAND  MAHAJAN  C.   J.-This  is  an  appeal  on   a certificate under article 132(1) of the Constitution against the judgment of the High Court of Judicature at Madras dated the  20th  February, 1953, holding that section  14  of  the Fugitive Offenders Act, 1881, is void as it offends  against the  provisions of the Constitution being discriminatory  in its effect. The  respondents,  husband and wife,  were  apprehended  and produced  before the Chief Presidency Magis  trate,  Egmore, Madras,  pursuant  to warrants of arrest  issued  under  the provisions  of the Fugitive Offenders Act, 1881.  Mr.  Menon is a barrister-at-law, and was practising as an advocate and solicitor  in  the Colony of Singapore.  Mrs.  Menon  is  an advocate  of the Madras High Court and was until recently  a member   of  the  Legislative  Council  of  the  Colony   of Singapore.  Both of them came to India some time after July, 1952.   On the 22nd August, 1952, the Government  of  Madras forwarded to the Chief Presidency Magistrate, Madras, copies of  communications  that passed between  the  Government  of India and the Colonial Secretary of Singapore requesting the assistance of the Government’ of India to arrest and  return to the Colony of Singapore the Menons under warrants  issued by the Third Police Magistrate of Singapore.  Mr. Menon  was charged  on  several  counts of  having  committed  criminal breach of trust and Mrs. Menon was charged with the abetment of these offences. The  Menons, when produced before the Presidency  Magistrate questioned the validity of their arrest.  They pleaded their innocence and contended that being citizens of India,  -they could not be surrendered as. the warrants related to matters of a civil nature and had been given the colour of  criminal offences  merely  for the purpose of harassing them  out  of political  animosity and with a view to prejudice the  Court against  them and were issued in bad faith.  It was  further urged  that  the provisions of the  Fugitive  Offenders  Act under which action was sought to be taker against them were 282 repu  gnant to the Constitution of India and were  void  and unenforceable. The  Presidency  Magistrate  expressed  the  view  that   by retaining  the  Indian Extradition Act, 1903,  and  with  it Chapter IV, the President of India may have intended to give effect  to  the  Fugitive Offenders Act, 1881,  but  by  the omission  to  adapt  or modify it  suitably  it  had  become impossible to give effect to that intention, the  provisions of  the  Act,  as  they are,  being  inconsistent  with  and repugnant  to the sovereign status of the  Indian  Republic. In view, however, of the provisions of section 432, Criminal Procedure Code, as amended by Act XXIV of 1951, he  referred to the decision of the High Court the following questions of law:-  (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  pro- visions,  particularly Part II thereof, is repugnant to  the Constitution   of  India  and  is  therefore  void  and   or inoperative. The  High  Court  held  that  section  14  of  the  Fugitive Offenders Act was inconsistent with the fundamental right of equal protection of the laws guaranteed by article 14 of the Constitution  and was void to that extent and  unenforceable against the petitioner.  The second question referred having thus been answered in favour of the respondents, it was  not thought  necessary  to  return  any  answer  to  the   first question.   As  above stated, a  certificate  under  article 132(1)  of  the  Constitution for leave  to  appeal  to  the Supreme Court against this decision was granted to the State of  Madras.  The Union of India was allowed to intervene  at their request. The learned Solicitor-General who argued the case on  behalf of  the  Intervener  as well as on behalf of  the  State  of Madras  conceded that the Fugitive Offenders Act, 1881,  was not adapted by any specific order of the President, and that the  Parliament in India had not enacted any Legislation  on its  lines.   He, however, contended that  the  omission  to adapt the impugned Act 283 in  no way affected the question whether it was in force  as the law in the territory of India after the commencement  of the Constitution.  Reliance was placed on article 372 (1) of the Constitution which is in these terms: - Notwithstanding  the  repeal  by this  Constitution  of  the enactments  referred  to in article 395 but subject  to  the other provisions of this Constitution, all the law in  force in   the   territory  of  India   immediately   before   the commencement  of this Constitution shall continue  in  force therein until altered or repealed or amended by a  competent Legislature or other competent authority." And  it was said that the impugned Act was the law in  force in   the   territory  of  India   immediately   before   the commencement  of  the Constitution and  continued  in  force under the provisions of this article after its commencement. It  was  also said that the adaptations made in  the  Indian Extradition  Act,  1903,  by  implication  kept  alive   the Fugitive Offenders Act, 1881, and its different -provisions. In order to decide whether Part 11 of the Fugitive Offenders Act,  188  1,  comprising  sections  12  and  14  under  the provisions  of which the Menons are under arrest, has  force after  the  coming  into force of the  Constitution,  it  is necessary to appreciate the relevant provisions of the  Act. The Fugitive Offenders Act, 188 1, as enacted by the British Parliament is sub-divided into four parts and is  comprised. of  41  sections.  Part I of the Act  concerns  itself  with offences  mentioned  in section 9. Section 5  of  this  part provides  that a fugitive when apprehended shall be  brought before  a  Magistrate who shall hear the case  in  the  same manner and have the same jurisdiction and powers, as near as may  be,  as  if the fugitive was charged  with  an  offence committed within his jurisdiction, and that if the  endorsed warrant for the apprehension of the fugitive is duly authen- ticated,  and such evidence is produced as according to  the law  ordinarily  administered  by the  magistrate  raises  a strong  or probable presumption that the fugitive  committed the  offence mentioned in the warrant, and that the  offence is one to which this part of this Act 284



applies, the magistrate shall commit the fugitive to  prison to await his return, and shall forthwith send a  certificate of the committal and such report of the case as he may think fit,  if in the United Kingdom to a Secretary of State,  and if  in  a  British  Possession  to  the  Governor  of   that possession.   Section 12 which is the first section in  Part II of the Act is in these terms :- "This  part of this Act shall apply only to those groups  of British Possessions to which, by reason of their  contiguity or otherwise, it may seem expedient to Her Majesty to  apply the same. It  shall  be lawful for Her Majesty from time  to  time  by Order in Council to direct that this part of this Act  shall apply  to the group of British possessions mentioned in  the Order,  and  by the same or any subsequent Order  to  except certain  offences from the application of this part of  this Act,  and to limit the application of this part of this  Act by such conditions, exceptions, and qualifications as may be deemed expedient." Section  14  which  is  directly in  point  so  far  as  the respondents are concerned provides as follows : "The  magistrate  before  whom a person  so  apprehended  is brought,  if  he  is  satisfied that  the  warrant  is  duly authenticated  as directed by this Act and was issued  by  a person  having  lawful authority to issue the same,  and  is satisfied  on oath that the prisoner is the person named  or otherwise described in the Warrant, may order such  prisoner to  be  returned  to the British  Possession  in  which  the warrant  was  issued, and for that purpose to  be  delivered into  the  custody  of the person to  whom  the  warrant  is addressed, or any or more of them, and to be held in custody and conveyed by sea or otherwise into the British Possession in  which  the warrant was issued, there to  be  dealt  with according to law as if he had been there apprehended.   Such order  for -return may be made by warrant under the hand  of the magistrate making, it, and may be executed according  to the tenor thereof" A comparison between the provisions of Part I and Part II of the Act makes it clear that with regard to 285 offences relating to which Part I has application a fugitive when  apprehended  could  not be  committed  to  prison  and surrendered unless the magistrate was satisfied that on  the evidence produced before him there was a strong or  probable case against him, while in regard to a fugitive governed  by Part II of the Act it was not necessary to arrive at such  a finding   before   surrendering  him.   There  is   thus   a substantial  and  material difference in  the  procedure  of surrendering fugitive offenders prescribed by the two  parts of the Act. The  scheme  of  the  Fugitive  Offenders  Act  is  that  it classifies  fugitive offenders in different  categories  and then  prescribes  a procedure for dealing with  each  class. Regarding persons committing offences in the United  Kingdom and  British  Dominions and foreign countries in  which  the Crown   exercises   foreign  jurisdiction,   the   procedure prescribed  by Part I of the Act has to be  followed  before surrendering   them  and  unless  a  prima  facie  case   is established   against  them  they  cannot   be   extradited. Extradition  with foreign States is, except  in  exceptional cases,  governed by treaties or arrangements made inter  se. Extradition of offenders between the United Kingdom and  the Native States in India is governed by the Indian Extradition Act.  Under the provisions of that Act no person apprehended could  be surrendered unless prima facie case was  made  out



against   him.   Extraditions  inter  se   between   British possessions,  however,  were dealt with differently  by  the Act.    They  were  grouped  together  according  to   their contiguity  etc. by an Order in Council and treated  as  one territory  and this grouping was subject to alterations  and modifications   by  Order  in  Council  and  conditions   of extradition. could also be prescribed by such an Order. An  Order in Council dated the 2nd January,  1918,  .grouped together  the  following British Possessions  and  Protected States with British India for the purposes of Part II of the Act   :-Ceylon,  Hongkong,  the  Straits  Settlements,   the Federated Malay States, Johore, Kedah and Perlis,  Kelantan, Trengannu,  Brunei, North Borneo and Sarawak.  The Order  is these terms:-- 286 ",Whereas  by  an  order of Her Majesty  Queen  Victoria  in Council bearing date the 12th day of December, 1885, it  was ordered  that Part 11 of the Fugitive Offenders  Act,  1881, should  apply to the ,group of British  Possessions  therein mentioned,  that  is  to  say,  Her  Majesty’s  East  Indian Territories, Ceylon and the Straits Settlements; And whereas by the Straits Settlements and Protected  States Fugitive Offenders Order in Council, 1916, as amended by the Straits Settlements and Protected States Fugitive  Offenders Order  in  Council, 1917, it is ordered  that  the  Fugitive Offenders Act, 1881, shall apply as if the Protected  States named  in  the schedule to the first  mentioned  order  were British Possessions ; And  whereas by reason of their contiguity or  the  frequent intercommunication  between them it seems expedient  to  His Majesty  and  conducive  to  the  better  administration  of justice  therein to apply Part II of the Fugitive  Offenders Act,  1881,  to  the above  named  British  Possessions  and Protected States and such application has been requested  by the Rulers of the said States ; Now therefore, His Majesty, by virtue of the powers in  this behalf  by the Fugitive Offenders Acts, 1881 and  1915,  and otherwise in His Majesty vested is pleased, by and with  the advice  of  His Privy Council, to order, and  it  is  hereby ordered, as follows : - On  and  after the first day of February, 1918,  the  herein before recited Order in Council of the 12th day of December, 1885,  shall  be  revoked,  without  prejudice  to  anything lawfully  done  thereunder or to any  proceedings  commenced before the said date, and Part II of the Fugitive  Offenders Act,  1881, shall apply to the group of British  Possessions and  Protected States hereunder mentioned, that is  to  say, British  India, Ceylon, Hongkong, Straits  Settlements,  the Federated Malay States, Johore, Kedah and Perlis,  Kelantan, Trengannu, Brunei, North Borneo and Sarawak." 287 By another Order in Council dated the 29th July, 1937, Burma which  ceased to be part of British India was also  included in  the  group of British Possessions and  Protected  States mentioned in the earlier Order in Council. It is plain from the above provisions of the 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 surrendered unless a prima facie case  was



made  against  him  was dispensed with.   Under  the  Indian Extradition  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  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 288 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.  Those  of the  countries which still form part of British  Possessions and which along with British India were put into a group may legitimately decline to reciprocate with India in the matter of  surrender  of  fugitive offenders  on  the  ground  that notwithstanding article 372 of our Constitution India was no longer  a  British Possession and  therefore  the  Fuogitive Offenders  Act, 1881, did not apply to India and  they  were not bound in the absence of a new treaty to surrender  their nationals  who may have committed extraditable  offences  in the territories of India.  Indeed some of the other  members of  this  group  have  also  achieved  independence.   Under section  12  of the Act it is not possible for  His  Majesty from time to time by Order in Council to alter the character of  this group or its composition or to take any  action  as prescribed by that section.  Article 372 of the Constitution cannot  save this law because the grouping is  repugnant  to the  conception  of a sovereign  democratic  republic.   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 and though the High Court did not return the answer to the first question referred to it, in our judgment, the case can be shortly disposed of on that ground. The  contention  of the learned  Solicitor-General  that  by reason of the adaptations made in the Indian and  references wade   therein  to  Extradition  Act,  1903,  the   Fugitive Offenders  Act,  it  should be held that the  whole  of  the Fugitive Offenders Act including PartII had been adapted  by the President does not seem to be well founded.  The  scheme



of  the  Indian  Extradition Act which was  founded  on  the English  Act is quite different.  It does  not  specifically keep alive any of the provisions of Part II of the  Fugitive Offenders  Act,  1881, and thefere is no adaptation  of  the Fugitive Offenders Act, 1881 within the four corners of  the Indian Extradition Act, 1903.  In these circumstances it  is not  possible  to  work out the  sections  of  the  Fugitive Offenders  Act  and  apply them to the  situation  that  has arisen  after the coming into force of the  Constitution  of India.  Moreover clause 28 of the Adaptation of Laws  Order, 1950,  can  have no application to such a case.  We  do  not think that it is necessary in the present case to enter into a  discussion  of the question whether  British  Possessions with  which India was grouped under Part 11 of the  Fugitive Offenders Act, 1881, should now be treated as foreign States qua India and that offenders apprehended can be  surrendered under the Indian Extradition Act or any other law,  provided a  prima facie case is made against them as the  proceedings taken against the respondents were specifically taken  Under section  14 of the Fugitive Offenders Act, 1881, and  it  is not the practice of this Court to decide questions which are not properly raised before it or which do not arise directly for decision. For  the reasons given above we uphold the decision  of  the High Court, though on a ground different from that on  which that  Court  decided,  in favour of  the  respondents.   The appeal therefore fails and is dismissed. Appeal dismiesed. 37 290