# Dr. Babu Ram Salama v. The Siok. Patdnjali Sastri]

- **Citation:** [1950] 1 S.C.R. 573
- **Court:** Supreme Court of India
- **Decided:** 1949-11-11
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/dr-babu-ram-salama-v-the-siok-patdnjali-sastri-141
- **Pages:** 21

## Headnote

s. c. R.
SUPREME COURT REPORTS
DR. BABU RAM SAKSENA
ti.
THE STATE
r
SttRI HARILAL KANIA c. J ., SAIYID F AZL Au,
PATANJALI SASTRI, MEHR CHAND MAHAJAN,
MuKHERJEA and DAs JJ.]
573
Constitutioll
of India-Merger
of. States-Effect-Treaty
of
Extradition between British Government and Indian State-Whether
subsists
after merger-Extradition Act 1903, ss. 7, IS-Provision
i11
Act for extradition for additional offences-Whether "derogates"
from
Treaty-F.xtradition warrant for additional offences-Legality.
In
1869 the British Government and Qie State of Tonk
entered
into
treaty
which
provided
for
the
extradition
of
offenders in respect of certain offe11ces specified
therein called
"heinous offences," which did not include the offences of chcati ng 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 ana with it all
~reaties 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 lridia 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 ss.
491 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
Tre~ty of
Extradition of 1869, his arrest was illegal :
· Held per KANIA
C. 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 1869 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.
1950
ltlig 5.
1950
Dr. Babu Ram
Salama
v.
The Siok.
Patdnjali
Sastri].
574
SUPREME COURT REPORTS
f1950J
Per MuKHERJEA J.
(FAZL
AL1,
ivfAHAJAN
an<l
DAs JJ. concurring).-The
Extradition
Treaty of
1869 \Vas not capable
of
being given effect to in vie'v of the n1erger of the Tonk State ;n
the
United
State of Rajasthan,
and, as
no enforceable
treaty
right existed, s. 18 of the Extradition Act of 1903 had no application ; and inasn1uch 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 \Vas not illegal.
APPELLATE
JuR1so1cTroN:
Criminal Appeal No. II
of 1949.
Appeal by special leave from the judgment of
the
Allahabad 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 coumel are set out fully in the judgment.
Alladi,
Krishnaswami /year (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 dismissing 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

## Text

_Characters 0–39,908 of 46,136. This is a partial read: ask again with offset=39908 for what follows._

s. c. R.
SUPREME COURT REPORTS
DR. BABU RAM SAKSENA
ti.
THE STATE
r
SttRI HARILAL KANIA c. J ., SAIYID F AZL Au,
PATANJALI SASTRI, MEHR CHAND MAHAJAN,
MuKHERJEA and DAs JJ.]
573
Constitutioll
of India-Merger
of. States-Effect-Treaty
of
Extradition between British Government and Indian State-Whether
subsists
after merger-Extradition Act 1903, ss. 7, IS-Provision
i11
Act for extradition for additional offences-Whether "derogates"
from
Treaty-F.xtradition warrant for additional offences-Legality.
In
1869 the British Government and Qie State of Tonk
entered
into
treaty
which
provided
for
the
extradition
of
offenders in respect of certain offe11ces specified
therein called
"heinous offences," which did not include the offences of chcati ng 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 ana with it all
~reaties 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 lridia 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 ss.
491 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
Tre~ty of
Extradition of 1869, his arrest was illegal :
· Held per KANIA
C. 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 1869 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.
1950
ltlig 5.
1950
Dr. Babu Ram
Salama
v.
The Siok.
Patdnjali
Sastri].
574
SUPREME COURT REPORTS
f1950J
Per MuKHERJEA J.
(FAZL
AL1,
ivfAHAJAN
an<l
DAs JJ. concurring).-The
Extradition
Treaty of
1869 \Vas not capable
of
being given effect to in vie'v of the n1erger of the Tonk State ;n
the
United
State of Rajasthan,
and, as
no enforceable
treaty
right existed, s. 18 of the Extradition Act of 1903 had no application ; and inasn1uch 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 \Vas not illegal.
APPELLATE
JuR1so1cTroN:
Criminal Appeal No. II
of 1949.
Appeal by special leave from the judgment of
the
Allahabad 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 coumel are set out fully in the judgment.
Alladi,
Krishnaswami /year (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 dismissing 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 tbe 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 tbe 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 bv 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
S.C.R.
SUPREME COURT REPORTS
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 Magistrate, 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 th:it 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 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
cogmsance of the matter and
~rrest 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 "Standstill 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 appellant, no extradition of the appellant could \>c demanded or ordered.
1950
Dr. Babu Ram
Sahtna
v.
The Stott.
Patwifoli
Sastri].
1950
Dr. Babu Ram
Saksnld
v.
T/,. Statt.
Patalljllli
Sanri ].
576
SUPREME COURT REPORTS
I 1950]
The Attorney-General appearing for the Government
advanced 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
arrangements
designed
to
maintain
the
status quo ante
m
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 Accession
executed
by the Rulers of those States. Tonk having acceded
to the Dominion on the 16th August, 1947, the standstill 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
wvereignty 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
m
operation as
a binding executory contract, its
prov1s10ns 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 cou Id not be called in question under section 491
of the Criminal Procedure Code.
As we are clearly of
opm10n
that the appellant's contention must fail on
this last ground, we consider it unnecessary to pronounce on the other points raised by the Attorney- .
General 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
S.C.R.
SUPREME COURT REPORTS
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
extradition under section 7 for an offence which is not
extraditable 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 Government of the Tonk
State undertakes to· extradite any person, whether a
British or a foreign subject, who commits a l_leinous
offence
in
British
territory.
A reciprocal
obligation
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 Government may direct. Article 4 prescribes the procedure to be adopted and the conditions
to be fulfilled before extradition could be had, and
:article 5 enumerates the offences which are "to 1)e
deemed as coming within the category of heinous
offences" which, however, do not include the offences
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 extradition 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
1950
Dr. Babu Ram
Saksenu
v.
Tk State.
Patanjali
Sastrij.
Dr. Babu Ram
Saksena
v.
Tk Stale.
Pat1171iali
Sas1ri].
578
SUPREME COURT REPORTS
[1950}
violates the principal of reciprocity which is the recognised
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
wh~re, 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 sec.
tion
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 misconception
and cannot be accepted.
No doubt the enumeration of "heinous offences"
in article 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
enumeration implies a prolzibition against either of
those parties providing by its own municipal laws for
the surrender of criminals for other offences not covered by the treaty. It is difficult to imagine why
the
contracting States should place such a fetter
on
their
respective legislatures in advance not only in regard
to their subjects but also in regard
to alien
offenders,
for, if such prohibition is at all to be implied, it should
cover both.
As pointed out in Wheaton's International
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 arc
made applicable by an. Order in Council in the case
of each State which enters into an extradition treaty
S.C.R.
SUPREME COURT REPORTS
579
with the Crown, and they are made applicable only
so far
as they
can
be
applied
cons~tently with
the terms and conditions 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 obligation 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
(11
3 Q· B. D. 42.
5--5 S. C. India ;N.D.)/58
19So
Dr. Babu Rom
Saksma
v.
Thi State.
PaJanjali • .
Sastri J.
1950
Dr. Babu Ram
Saksma
v.
The Stau.
Patanjali
Sastri j.
F.,J Ali j.
Malrf!ia;o j.
Muk/rerfea].
580
SUPREME COURT REPORTS
[1950]
State any more than in fugitive aliens not · to he
extradited for other than "heinous offences".
It is
noteworthy that even in Wilson's case,
(ubi supra)
where there was an exception in the treaty in favour of
the subjects of the contracting States, the decision was
based not on the ground that the treaty by itself conferred any right or privilege on English subjects not
to be surrendered but on the
ground
that
the Order
in Council applying the Extradition Act,
1870,
to
Switzerland limited its
operation,
consistently
with
the terms of the treaty, to persons other than English
subjects. It is, therefore, not correct to say that, by
providing for extradition for additional offences, the
Act derogates from the rights of Indian citizens under
the treaty or from the provisions of the treaty.
We
are accordingly of opinion that the arrest and
surrender of the appellant 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 Au 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 conclusion. As I am inclined to agree
with the line of reasoning 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
delivered by my brother Mukherjea. For the reasons
given therein this appeal should be dismissed.
MuKHERJEA 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.
Babu
Ram
/
_,
-
S.C.R.
SUPREME COURT REPORTS
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 30 years, held various important posts, both in
and outside that province. In January, 1948, he was
appointed Administrator of the Tonk State, where a
disp.ute 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
settled 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 a'nother special post under
the Rajasthan Governtllent, but
soon
afterwards,
he
took leave and proceeded to Naini Tai, where he has
been residing since then. On 23rd May, 1949, he was
arrested
at Naini Tai
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 Tai
and directed to the arrest of Dr. Saksena and his removal to Rajasthan, to be delivered to the District Magistrate of Tonk for enquiry into certain offences :igainst
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
1950
Dr. Babu Ram
S.7kstna
v.
The Stair.
Mukhtrjea ].
1950
Dr. Babu Ram
sots ...
v.
TM Slat<.
Muklrerjea ].
582
SUPREME COURT REPORTS
11950.1
a sum of Rs.
14 lakhs from the State Treasury.
Dr. Saksena promised his
assistance on condition that
the Nawab would give him a sum of Rs. 3 lakhs out
of this amount as his share. By dint of his efforts,
the appellant succeeded in inducing the State Ministry
to pay the full amount of Rs. 14 lakhs to the Nawab
in different instalments.
The first
instalment, amounting to over Rs. 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 m two mstalments. 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 attacked 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 Tai could
not take cognizance of the matter without the previous
S.C:R.
SUPREME COURT REPORTS
583
sanction of the U. P. Government under section 197 'of
the Criminal Procedure Code and that the sanction of
the Rajpramukh 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
sectio~ 7 of the
Extradition
Act was wholly illegal and
unauthorised.
It is admitted that these offences are specified in the
Schedule to the Inclan Extradition 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
hea~d by Harish Chandra, J.
sitting singly, and by a judgment dated 11th of
November,
1949,
which fully and elaborately discussed
the different points
raised
in
the
case,
the learned
Judge rejected
the application of the
petitioner.
No
certificate was given by the
High Court u_nder section 205(1) of the Government of India Act, 1935, and
the present appeal has been, brought to this Court on
the strength of special leave granted by it.
Sir Alladi Krishnaswami Aiyar, who appeared in
support of the appeal, has very properly not press~d
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 regulated exclusively by
the provisions of the Extradition Treaty that was entered into
between the 1'onk
State and the
British · Government
1950
Dt. Babu Ram
S~oa
v.
Tire State
Mulr.her:ita},
1950
-Or. Babu Ram Sahma
v.
The Stau
Muk/ie,j.a J.
584
SUPREME COURT REPORTS
[1950)
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 provisions 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 applicable to the facts of
the present case, the warrant of arrest issued
bv the
Political Agent of Rajasthan could not
be assaifed 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 extradition
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 Toni( State and the
British
Government
which
have a bearing upon the present question.
Chapter III 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 :
" (I) 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 for such State issues a warrant,
addressed
to
the
District
Magistrate
of any
district in which such person is believed to be, (or if
such person is believed to be in any Presidency town
S.C.R.
SUPREME COURT REPORTS
585
to the Chief J>residency Magistrate of such town), for
his arrest and delivery at a place and to a person for
authority indicated
in
the
W'iffitllt
such
Magistrate
shall act in pursuance of such warrant and may give
directions accordingly."
•
•
•
•
The
expression
"extradition
offence"
has
be.::n
defined in section 2(b) and means "any such offence
as is described in the First Scheme to the Act."
The
First Schedule gives a catalogue of offences described
with reference co specific sections of the Indian Penal
Code and it includes offences punishable under sections 383 and 420 of the Indian Penal Code prima
facie, it seems therefore that all the conditions laid
down in section 7 of the Extradition Act are fulfilled
in the present case. The warrant has been issued by
the Political Agent of a State which is not a "foreign
State" as defined by the Act and the offences with
which the appellant is charged are "extradition offences" as specified in Schedule 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
an<l 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
a!lc seeks asylum in British territory. The conditions
1950
Dr. BabulRam
Saksma
v.
The State •
Mukherjea J.
1950
Dr.BU..R,,,,.
Sobtta
v.
T/w SloU.
586
SUPREME COURT REPORTS
[1950]
under which extradition could be . had in all such cases
and the procedure to be followed ate· 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 neithe{ "cheating" nor "extortion" are mentioned in this list. The
whole controversy, therefore, centers round the point as
to whether in view of the provisions of the Extradition
Treaty mentioned above,
extradition
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 ·speci1ied 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. ,:\ct, 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 Extr:iR,ition Act?
The learned
Attorney-General, whc appeared
£01
the Goverhment 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~· ~
"to . detract" or "to take away" and the Schedule to
the Extradition
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.
~
S.C:R.
SUPREl\1E COURT REPORTS
587
-.
,
So far as the first point is concerned, Mr. Setalvad
t950
has drawn our attention to various political changes
--,.
that have come over the Tonk State since the conDr.s~'t' R•m
clusion of the Extradition Treaty in 1869. In 1869
:'.no
Tonk was one ·of the Native States in India with a
-Tl .. Stat•.
"separate'' political existence of its own and the Treaty
that was entered _into. in that year was meant to Mukhorje• J.
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 modifica- ·
tion made certain alterations 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 th" 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 Extraqition 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,howevei:, a Standstill Agreement entered into by
the Indian Dominion with the Indian States, the first
·article of which runs as follows :
"l. (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, continue as between the Dominion of
1950
Dr. Ba/Ju Ram
Sahma
v.
n. si.,,.
588
SUPREME COURT REPORTS
(19501
India or, as the case may be, the part thereof, and the
State.
(2) In particular,
and witfi2ut 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
contention, 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
Instrument 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 Accession
is
that the "Ruler
accepts
the
pos1t1on
that
with
regard
to
matters
specified
in
the
Schedule
to
the
Instrument,
the·
Dominion Legislature would be entitled to
make
laws
for the State". "Extradition including the surrender of
criminals and accused persons to parts of His Majesty's
Dominion outside India" is one of the matters specified
in the Schedule. Thus the State gave up and surrendered in favour of the Dominion Legislature
its
right to
legislate in respect to extradition after the date of
accession.
Whether
the
existing
Extradition
Treaty
was ipso facto
abrogated by this
Instrument of Acces--
sion is not so clear. Obviously, the Indian Dominion:
"
S.C.R.
SUPREME COURT REPORTS
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
~xpress provision
m section
18
which
safeguards
ex1stmg
treaty
rights.
It
1s
somewhat
unusual that an Extradition 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
aweed 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 :
"(I) 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
Pramu~h; and thereupon1950
Dr. Bab11 Rarrr
Sakseno.
Y.
The Stau.
Mukher.fea].
1950
Dr. Babu Ram
Saksoia
v.
Mu.t,.,,j.a ].
590
SUPREME COURT REPORTS
[1950]
(a) all rights, authority and jurisdiction belonging
to the Ruler which appertain or are incidental to the
Government 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
pertaining or incidental to the Government of the
Covenanting State shall devolve on the United
Sta~
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 or annexation,
the general opinion of International Jurists is that the
treaties of the former
are
automatically
terminated.
The result is said to be produced by reason of complete
loss of personality
consequent on extinction
of State
life('). The cases discussed in this
connection are
generally 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 Prussain Kingdom
· destroyed
the
previous
treaties
of
Hanover.
The
admission of Texas into the United States
of America
by joint resolution
extinguished
the. Treaties
of
thr
Independent
Republic
of Texas('). 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 existence of a contracting
State,
(1) Vide Hyde on International Law, Vol. III, p. 1529.
(1) Vidt Hyde on International Law, Vol. Ill, p. 1531,
S.C.R.
SUPREME COURT REPORTS
591
th~y are altogether extinguisheJ.