# India v. K. T. Chari, Advocate-General for Madras (Porus

- **Citation:** [1955] 1 S.C.R. 280
- **Court:** Supreme Court of India
- **Decided:** 1953-02-20
- **Case number:** Criminal Appeal No. 33 of 1953
- **Bench:** Mehr Chand Mahajan C.J, s. R. DAS, Ghulam Hasan, Bhagwati, Jagannadhadas
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/india-v-k-t-chari-advocate-general-for-madras-porus-389
- **Pages:** 10

## Headnote

Constitution of India-India-Sovereign
Democratic
Republic
-Fugitive Offenders Act, 1881 (44 Victoria Chapt<r 69), ss. 12 and
14-Whether applies to India
after
the comjng into force of the
Constitution-Indian Extradition
Act (XV of
1903)-Adaptotion
u.nder art. 372 of the Constitution-Effect of.
After the achievement of independence and
the coming into
fOrce
of the new Constitution India became a Sovereign Democratic 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 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 Indian Extradition Act, 1903 (Act XV of 1903) has been
adapted under the provisions of article 372 of the Constitution but
r
this Act has not kept alive any of the provisions of the
Fugitive
Offenders Act, 1881,
which was an act of the British Parliament .........-
and which
has not been adapted and therefore section
12 and
section 14 of the Fugitive Offenders Act, 1881, have no application
to India.
CRIMIN AL
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.
K.
Daphtary,
Solicitor-General
for
India,
V. K. T. Chari, Advocate-General for Madras (Porus
A. Mehta and P. G. Gokhale, with them) for the
appellant.
M. K. Nambiar,
the respondent.
(S. Subramanian, with him) for
C. K. Daphtary, Solicitor-General for India
(Porus
A. Mehta and P. G. Gokhale with him) for the Intervener
(Union of India).
~
I ,
--
•
.
:
---
•
.:t
\
.S.C.R.
SUPREME COURT REPORTS
281
1954. May 19. The Judgment of the Court was
<lelivered by
MEHR 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 apprehend-
-ed and produced before the
Chief Presidency Magistrate, 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
-rhe 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

## Text

1954
MoJ 19
280
SUPREME COURT REPORTS
(1955]
THE STATE OF MADRAS
f).
C. G. MENON AND ANOTHER.
(MEHR CHAND MAHAJAN C.J., s. R. DAS,
GHULAM HASAN, BHAGWATI and JAGANNADHADAS JJ.]
Constitution of India-India-Sovereign
Democratic
Republic
-Fugitive Offenders Act, 1881 (44 Victoria Chapt<r 69), ss. 12 and
14-Whether applies to India
after
the comjng into force of the
Constitution-Indian Extradition
Act (XV of
1903)-Adaptotion
u.nder art. 372 of the Constitution-Effect of.
After the achievement of independence and
the coming into
fOrce
of the new Constitution India became a Sovereign Democratic 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 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 Indian Extradition Act, 1903 (Act XV of 1903) has been
adapted under the provisions of article 372 of the Constitution but
r
this Act has not kept alive any of the provisions of the
Fugitive
Offenders Act, 1881,
which was an act of the British Parliament .........-
and which
has not been adapted and therefore section
12 and
section 14 of the Fugitive Offenders Act, 1881, have no application
to India.
CRIMIN AL
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.
K.
Daphtary,
Solicitor-General
for
India,
V. K. T. Chari, Advocate-General for Madras (Porus
A. Mehta and P. G. Gokhale, with them) for the
appellant.
M. K. Nambiar,
the respondent.
(S. Subramanian, with him) for
C. K. Daphtary, Solicitor-General for India
(Porus
A. Mehta and P. G. Gokhale with him) for the Intervener
(Union of India).
~
I ,
--
•
.
:
---
•
.:t
\
.S.C.R.
SUPREME COURT REPORTS
281
1954. May 19. The Judgment of the Court was
<lelivered by
MEHR 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 apprehend-
-ed and produced before the
Chief Presidency Magistrate, 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
-rhe 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 taken against them were
36
1954
TIWStateof
Madras
v •
C. G. Menon mtd
Another.
Mehr Chand
· Mahqjan C. J.
1,954
The-State. of
Madras
v.
G_. G. Menon,41ld
Anothe~.
M•hrChand
. Mahqjan' C. J.
282,
SUPRE:Mli: COURT R.E:PORTS
[1955.J
repugnant. 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 :li;XIV of 1951, he referred to the decision of the
High Court the following questions of law :-
( 1) Whether the fugitive Offenders
Act, 1881,
applie.s to India after 26th January, 1950, when India
became a Sov~reign 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 section 14 of the fugitiveOffenders Act was inconsistent with the fundamental
right of equal protection of the l'aws guaranteed by
artide 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.
-
'
1·
...
--
t.,:.
The learned Solicitor-General who argued the case on
behalf of the Intervener
as well as on behalf of the
f
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, con-
;.~
tended that the omission to adapt the impugned Act
S.C.R.
SUPREME COURT REPORTS
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 II of the Fugitive
Offenders Act, 1881, 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, 1881, 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
;i. 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 authenticated, and such evidence is produced as according to
the law
ordinarily administered by the
magistrate
raises a strong or probable presumption that the fugitive
f'< -\ committed the offence mentioned in the warrant, and
that the offence is one to which this part of this Ad:
19-86 S C.India/59
1954
The State of
Madras
v.
c.· G. Menon and
Another.
Mehr Chand
Mahajan C.J.
1954
The Stale of
Madras
v.
e. G. Menon. and
Another.
-1
Mehr Chand
Mahajan C. J.
284
SUPREME COURT REPORTS
[1955]
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
t.ime 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 appre-
...,
hended 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 I
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
:f'arl H ·of the Act· makes it dear ·that · with regard to_
•
_ ...
--
--
-'T
t
S.C.R.
SUPREME COURT REPORTS
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
I>·
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
'7"- 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 a prim a f acie 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
1 \ treated as one territory and this grouping was subject
to alterations and modifications by an 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,
;t •
Kedah and Perlis, Kelantan, Trengannu, Brunei, North
Borneo and Sarawak. The Order is these terms :......,.
1954
TJi. State of
Madras
. v~
C. G. Menon and
Another..
.
M1hrChand
Mahajan C.J•
1954
Th• State oj
Madras
v.
C. G. Menon and
Another.
Mehr Choiul
Mahajan C. J,
286
SUPREME COURT R~PORTS
[1955]
''Whereas by an order of Her Majesty Queen
Victoria in Council bearing
date the 12th day of
December, 1885, it was ordered that Part II of the
Fugitive Offenders Act,
1881, should apply to the
group of British Posse!sions 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 th" fitst 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 abovenamed
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
hereinbefore 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 grou'p
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,
Kelant~p,
Trengannu,
Brunei,
North Borneo and
Sarawak."
I
t ..
--
S.C.R.
SUPREME COURT REPORTS
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 Prote,cted 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
or the
purpose
of
ext.c:aditing
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 f acie 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
Y
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 arrange-
\ ment 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 Parliamen.t has been left severely alone.
The
provisions of that Act could only. be made applicable. to
1954
rT!le_ State of
Af.adras
v.
C. G. Menon and
'
Another.
Mehr Chand
Mahajan C. J.
1954
The Stat• of
Mf!dras
v.
C~G. MMori
aild,.A.nother.
MehrChrmd
Mahajan C.J.
288
SUPREME COURT REPORTS
[1955]
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 aQd 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
Fugitive 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
y
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
1
.1'
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
Preai.dency 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
Extradition Act, 1903, and references· made therein to
-·
S.C.R.
SUPREME COURT REPORTS
289
the Fugitive Offenders Act, it should be held that the
whole of the Fugitive Offenders Act including Part II 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 there
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 II 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
1s
dismissed.
Appeal dismissed.
1954
The Staie of
Madras
v.
C. G.Menon
and Another.
Mehr Chand
Mahajan C. J.