# ROSILINE GEORGE v. UOI & ORS

- **Citation:** [1993] Supp. 3 S.C.R. 141
- **Court:** Supreme Court of India
- **Decided:** 1993-10-11
- **Case number:** Criminal Appeal No. B 631of1993
- **Bench:** Kuldip Singh, S.P. Bharucha
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/rosiline-george-v-uoi-ors-12268
- **Pages:** 28

## Headnote

In,ternational Law-Extradition-f'rocedure to be followed-Held
Municipal law detennines procedure. Surrender of fugitive criminals- Held:
not without request, fonnal authority or by .statute or treaty.
International Treaties--Rights and obligations-Laps,; of-Held : a
political question dependent upon intention of concerned state-No automatic lapse on external change of sovereignity over the territo~Treaties not.
come to an end on change of Government.
A
B
c
Fugitive Offender Act 1881-Not applicable to British possessions.
D
Treaty-W'ho can enter iiito.
Held: Governor General of India had no authority to enter into treaties
on behalf of India and it was only the prerogative of Head of a State to do
so.
,Treaties:
Held: Not the subject matter of Indian Independence (International
Arrangements) Order 1947 which only dealt with Municipal Law.
Existing Indian Laws under the 1947 order-S.18(3) of Indian Independence Act-Meaning of-Did not prevent order-in-Council from operating.
E
F
Constitution of India 1950 : ATt 372(1)--Law in force immediately
before commencement of the Constitution-Meaning of-{J.S.A. (extradition
India) Order-in-Council 1942 (1942 Orders) in accord with Constitution of G
India.
Extradition Act 1963-Treaty-Operation of-Held: Applicable to
whole territory of India.
Section 5 and Section lo-Documents under Section 10 along with H
141
142
SUPREME COURT REPORTS [1993) SUPP. 3 S.C.R.
A
order of the Central Govt. under Section ~Held part of evidence in support
of Extradition Act-Extradition Act being special provision excludes from
operation general provisions of Criminal Procedure Code.
The U.S. Embassy in a letter of request for extradition stated that
an Indian citizen G while working in an American Bank, was guilty of
B
embezzlement of funds of the Bank by fraud and forgery by transferring a
certain sum to another country by wire. An indictment was returned in the
U.S. District Court charging G with embezzlement, forgery, fraud by a
banker, wire fraud, transportation of stolen money in foreign commerce
and receiving stolen money. A warrant for G's arrest was issued by the
C U.S. Magistrate. The letter of request for extradition by the U.S. Government was accompanied by the original set of duly certified and authenticated documents in support of the request. The Government of India by
an order under Sec. 5 of the Extradition Act 1962, requested an enquiry
by the Magistrate in Delhi. The Magistrate after examining the documents
caused G to be arrested and produced before him on 17th April, 1989 and
D on 3-5-1989. There after various proceedings were taken by G and his wife
in the Magistrate's Court apart from filing 2 Writ petitions and ultimately
the matter was carried to the Supreme Court and the proceedings were
pending for over five years.
E
There existed a 1931 Extradition Treaty between U.S.A. and Great
Britain. For the purpose of the said treaty the territory of His Britannic
·
Majesty did not include India. However, in 1942 under the powers reserved
under Article 14 of the said treaty, an order was issued by which the British
Government through His Majesty acceded to the 1931 treaty on behalf of
India and thereafter a notification under S.3(1) of he Extradition Act read
F
with S.3(3) was issued setting out in full the 1931 Treaty between U.S.A.
and India and the provisions of the Extradition Act were also made
applicable to the United .states of America. Thereafter both the Indian
Embassy in U.S.A. and the Department of State of U.S.A. confirmed and
acknowledged the existence of the treaty. Extradition proceedings were
q challenged in this Court by G. and his wife by way of a Writ Petition and
Civil Apreals against the High Court's orders on the following grounds:
(a) A treaty signed prior to the coming into force of the Constitution
on 26-1-1950 automatically ceased to exist.
H
(b) Under the Government of India, Act, only the Governor General
GEORGE v. U.O.I.
143
of India could accede to the extradition ~~7

## Text

_Characters 0–39,975 of 64,179. This is a partial read: ask again with offset=39975 for what follows._

ROSILINE GEORGE
v.
UOI & ORS.
OCTOBER 11, 1993
[KULDIP SINGH AND S.P. BHARUCHA, J.]
In,ternational Law-Extradition-f'rocedure to be followed-Held
Municipal law detennines procedure. Surrender of fugitive criminals- Held:
not without request, fonnal authority or by .statute or treaty.
International Treaties--Rights and obligations-Laps,; of-Held : a
political question dependent upon intention of concerned state-No automatic lapse on external change of sovereignity over the territo~Treaties not.
come to an end on change of Government.
A
B
c
Fugitive Offender Act 1881-Not applicable to British possessions.
D
Treaty-W'ho can enter iiito.
Held: Governor General of India had no authority to enter into treaties
on behalf of India and it was only the prerogative of Head of a State to do
so.
,Treaties:
Held: Not the subject matter of Indian Independence (International
Arrangements) Order 1947 which only dealt with Municipal Law.
Existing Indian Laws under the 1947 order-S.18(3) of Indian Independence Act-Meaning of-Did not prevent order-in-Council from operating.
E
F
Constitution of India 1950 : ATt 372(1)--Law in force immediately
before commencement of the Constitution-Meaning of-{J.S.A. (extradition
India) Order-in-Council 1942 (1942 Orders) in accord with Constitution of G
India.
Extradition Act 1963-Treaty-Operation of-Held: Applicable to
whole territory of India.
Section 5 and Section lo-Documents under Section 10 along with H
141
142
SUPREME COURT REPORTS [1993) SUPP. 3 S.C.R.
A
order of the Central Govt. under Section ~Held part of evidence in support
of Extradition Act-Extradition Act being special provision excludes from
operation general provisions of Criminal Procedure Code.
The U.S. Embassy in a letter of request for extradition stated that
an Indian citizen G while working in an American Bank, was guilty of
B
embezzlement of funds of the Bank by fraud and forgery by transferring a
certain sum to another country by wire. An indictment was returned in the
U.S. District Court charging G with embezzlement, forgery, fraud by a
banker, wire fraud, transportation of stolen money in foreign commerce
and receiving stolen money. A warrant for G's arrest was issued by the
C U.S. Magistrate. The letter of request for extradition by the U.S. Government was accompanied by the original set of duly certified and authenticated documents in support of the request. The Government of India by
an order under Sec. 5 of the Extradition Act 1962, requested an enquiry
by the Magistrate in Delhi. The Magistrate after examining the documents
caused G to be arrested and produced before him on 17th April, 1989 and
D on 3-5-1989. There after various proceedings were taken by G and his wife
in the Magistrate's Court apart from filing 2 Writ petitions and ultimately
the matter was carried to the Supreme Court and the proceedings were
pending for over five years.
E
There existed a 1931 Extradition Treaty between U.S.A. and Great
Britain. For the purpose of the said treaty the territory of His Britannic
·
Majesty did not include India. However, in 1942 under the powers reserved
under Article 14 of the said treaty, an order was issued by which the British
Government through His Majesty acceded to the 1931 treaty on behalf of
India and thereafter a notification under S.3(1) of he Extradition Act read
F
with S.3(3) was issued setting out in full the 1931 Treaty between U.S.A.
and India and the provisions of the Extradition Act were also made
applicable to the United .states of America. Thereafter both the Indian
Embassy in U.S.A. and the Department of State of U.S.A. confirmed and
acknowledged the existence of the treaty. Extradition proceedings were
q challenged in this Court by G. and his wife by way of a Writ Petition and
Civil Apreals against the High Court's orders on the following grounds:
(a) A treaty signed prior to the coming into force of the Constitution
on 26-1-1950 automatically ceased to exist.
H
(b) Under the Government of India, Act, only the Governor General
GEORGE v. U.O.I.
143
of India could accede to the extradition ~~7'--
(c) The 1942 order extending and making applicable the treaty to
India ceased to be existing Indian Law and became inoperative after
coming into force of the India (Adaptation of Existing Laws) Order, 1947
and the Adaptation of Laws Order 1950.
(d) The Indian Extradition Act 1903 being applicable to British
India, could not apply to an erstwhile native India State like Kerala where
G. was arrested and therefore his arrest and detention was illegal and
unathorised.
(e) Adequate evidence not having been produced within two months
of G's apprehension, he was liable to be set at liberty under Clause 11 of
the 1931 Treaty.
(l) The competent Magistrate to hold an enquiry under the ExtradiA
B
c
tion Act was the Chief Judicial Magistrate Ernakulam, where G was found D
and arrested in view of S.5 of the Extradition Act read with S.177, 188, 190
of the Criminal Procedure Code.
Dismissing the Criminal Appeals & Writ Petition, this Court
HELD: 1. Procedure to be followed by Courts in deciding whether E
extradition should be granted is determined by the Municipal Law of the
land even though extradition itself is in implementation of ~he international
commitment of the State. [155-D-E]
2. There cannot be surrender of fugitive criminals or a request therefor without formal authority either by statute or treaty. [156-C]
3. There is no general rule that all treaty rights and obligations lapse
upon external changes of sovereignity over territory, nor is there any principle which is generally accepted and favours continuity of treaty relations.
F
The general working rule is to ascertain the intention Gf the concerned State G
by looking at relevant treaty and other arrangement accompanying change
of sovereignity, and it is a political question to be determined in view of the
circumstances accompanying the change in sovereignity. [156-F; 157-A-B]
4. The Government of India has accepted the 1931 treaty as operative
between United States of America and India. The 1931 treaty as extended H
144
SUPREME COURT REPORTS [1993] SUPP. 3 S.C!R.
A
to India by the 1942 order is operative between the two countries.
[157-G-H; 158-A]
5. Existing treaty obligation or a State do not automatically lapse
under public international law on an external change or sovereignity. Termination or treaty is a political question and the controlling importance is
B
of the governmental action. [158-B, G]
Tom C. Clark v. Alvina Allen, 331 U.S. 503·5·18, relied upon.
6. Change in the form of government of a contracting state does not
put an end to its treaties. Therefore, independence in 1947 and the sovereigC
nity of a republic could not have put an end to the treaties entered into by
the British Government prior to 15th August 1947, on behalf of India.
[160-D-E]
D
E
Dr. Babu Ram Saksena v. The State, [1950 ]S.C.R. 573 and Jhirad v.
Fe"andina, 365 Federal Supplement 1155, relied upon.
7. Fugitive Offenders Act 188l could not apply to British Possessions
because .the Fugitive Offenders Act was an internal statute (of Britain).
[161-B]
State of Madras v. C.G. Menon. & Ors., [1955] SCR 280, held inapP!icable.
8. The 1931 Treaty between U.S.A. and Indian as notified under S.3.
of the Act is subsisting and operative between the two countries. [162-B]
9. Entering into a treaty being the sole prerogative of the British
Crown, the Governor General oflndia had no authority whatsoever to enter
F
into treaties with any country on behalf of India. [162-G]
10. Entering into a treaty is the executive act performed by the Head
of the State and its implementation is the legislative function if in a given
case a law is required to implement the treaty. [163-C]
G
11. Entry 3 List I of the Seventh Schedule to the Government of India
Act 1935 only permitted the Legislature to make law, if necessary, in order
to implement the treaties which were entered into by the British Crown.
[163-G]
12. The Indian Independence (International Al'rangeyients) order,
H 1947 and the Adaptation of Laws Order, 1950 dealt only with municipal
--
GEORGE\'. U.0.1.
145
law which was operating in India and needed adaptation because of the A
change in India's so\·ereign status and could not have dealt with the
international agreements and treaties entered into by the British Crown
in its executive power. [164-C]
13. The exclusion of 'Order-in-Council' from the definition of the
expression 'existing Indian Law' under the 1947 order did not have the
effect of preventing the 'Order-in-Council' from operating ~y virtue of
S.18(3) of the Independence Act. (164-F]
-
B
14. The United States of America (extradition-India) Order-In·
Council 1942 (1942 Orders) issued by the British Government was in C
accord with the provisions of the Constitution of India and did not require
any adaptation or modification as it was law in force immediately before
the commencement of the Constitution and continued in force under Art.
372(1) of the Constitution. The 1950 Order being only for the purpose of
adaptation of the 'existing Indian Laws' and as such was not applicable to D
the 1942 Order. (164-H, 165-A]
15. When the native Indian State became part of Independent India
after 1947, the territories comprising the States automatically came to be
operated by the Municipal laws of the land including the laws enacted to
implement the treaties. When the 1963 Extradition Act came into force E
Kerala was part of India and the notification
dated 1st April, 1966
reiterated that the 1931 treaty was operative qua the whole territory of
India. (165-D-E]
16. Documents referred to under S.10 of the Extradition Act, 1963, F
when placed on record with the order of the Central Government issued
under S.5 of the Act, are part of the evidence in support of Extradition.
[167·D·EJ
17. The Extradition Act being a special provision to deal with the
Extradition of fugitive criminals shall exclude from operation the general G
provisions of Criminal Procedure Code 1973 and S.5 of the Criminal
Procedure Code gives overriding effect to the Special jurisdiction created
under any special or local laws. Consequently, S.177, 178, and 190 of the
Criminal Procedure Code have no application to the proceedings under
the Extradition Act. [168·C·D]
H
146
SUPREME COURT REPORTS (1993) SUPP. 3 S.C.R.
A
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
B
631of1993.
From the Judgment and order dated 14.12.90 of the Delhi High
Court in W.P. (Crl.) No.692 of 1989.
WITH
Criminal Appeal No. 632 of 1993.
AND
C
. Writ Petition (Crl.) No. 97 of 1992.
D
E
R.G. Garg, G.L. Sanghi, Ms. Lily Thomas, for the appellant.
K.T.S. Tutsi, Solicitor General, A.K. Srivastava, K: Swamy, P. Parmeshwarn, Ms. Sushma Suri and M.T. George for the repondents.
The Judgment of the Court was delivered by
KULDIP SINGH, J. Leave granted in both the special leave petitions.
George Kutty Kuncheria, an Indian national, is wanted in the United
States of America to stand trial for violation of Federal fra!ld statutes and
related offences. The Embassy of the United States of America in New
Delhi sent a latter of request dated September 20, 1988 to the Ministry of
External Affairs, Government of India, for the extradition of George to the
F
United States. The Ministry of External Affairs, Government of India, in
exercise of its powers under Section 5 of the Extradition Act, 1962 (the
'Act') passed an order dated December 5, 1988 requesting the Additional
Chief Metropolitan Magistrate, Patiala House, New Delhi (the Magistrate),
to conduct an inquiry into the ma~ter under the Act. Rosiline, wife of
George, challenged the extradition proceedings by way of a writ petition
G before the Delhi High Court. The writ petition was dismissed by a Division
Bench of the High Court by its judgment dated December 14, 1990. The
two appeals by way of special leave filed. by Rosiline and George, are
against the judgment of the Delhi High Court. The writ petition under
Article 32 of the Constitution of India has been filed by George challenging
H the extradition proceedings on various grounds.
-
GEORGE v. U.0.1. [KULDIP SINGH, J.)
147
The facts as disclosed by the Embassy of the United States of A
America in its letter of request indicate that while employed as an officer
of the Chase Manhattan Bank in New York, George defrauded and embezzled from the bank more than one million dollars. He caused - by means
of forgery and embezzlement the funds to be transferred.by wire out of the
United States, to the United Arab Emirates, where he claimed the alleged B
ill-gotten gains. George is the subject of indictment No.5 88 CR 461
returned on August 16, 1988 in the United States District Court for the
Southern District of New York (Manhattan) charging him with two counts
of embezzlement,- two counts of forgery, two counts of fraud by a banker,
two counts of wire fraud, two counts of transportation of stolen money in
foreign commerce and two counts of receiving stolen money. A warrant for C
George's arrest was issued on August 16, 1988, by the U.S. Magistrate of
the above court.
In support of the United States' request for extradition of George,
an original set of documents, duly certified and authenticated, was transmitted along with the said letter. The details of the documents are as D
under:-
i. Certificate of authentication by the Attorney-General of the
United State~ by affixing the seal of the Department of Justice.
ii. Certification by the Director, Office of International Affairs, E
Criminal Division, United States Department of Justice, certifying
that the judicial certificate of authentication, affidavits, exhibits and
attachment are all original and have been offered in supp~rt of the
United States request for the extradition of George.
iii. Prosecutor's affidavit in support of request for extradition.
iv. Exhibit 1 to the prosecutor's affidavit is a certified true copy of
the indictment No.S.88 C.R.C.461 which was filed against George
on August 16, 1988, in the United States District Court for the
Southern District of the New York.
v. Exhibit 2 to the prosecutor's affidavit is a certified true copy of
the warrant for arrest issued for George by the Embassy concerned.
F
G
vi. Exhibits 3, 4, 5, 6 and 7 to the prosecutor's affidavit are affidavits H
A
B.
c
D
148
SUPREME COURT REPORTS [1993] SUPP. 3 S.C.Rt
of witnesses relating to the indictment against George. Each of
these exhibits is a true copy of the original affidavit which has been
filed and is part of the official court record in this case. Exhibits
3, 4, 5 and 6 have been sworn to before the United States District
Court Judge.
vii. Exhibit 8 to the prosecutor's affidavit consists of true copies of
the relevant statutes of the United States which w~re in effect at
the time· of the alleged offences.
viii. Certification by the Director, Officer of International Affairs,Criminal Division, United States Department of Justice certifying that the judicial certificate of authentication signed by
United States District Court Judge, the affidavit of prosecutor
(Assistant United States Attorney) and Exhibits 1 to 8, are original.
It was further certified that all the document mentioned above are
offered in support of the United States request for the extradition
of George.
On receipt of the letter of request for extradition of George, the
Government of India issued the order dated December 5, 1988, requesting
the Magistrate to conduct an inquiry into the alleged offences. Para 5 of
E the said order is as under :-
·
F
"The letter of request received from the US Embassy in New Delhi
for the extradition of Shri George Kutty Kuncheria together with
documents furnished by the Government of USA in support of
their request are enclosed herewith.
G. Jagannathan, Deputy Secretary, Ministry of External Affairs,
Government of India, presented the order dated December 5, 1988, along
with the original file of the case before the Magistrate on December 7,
1988. After examining the documents, the learned Magistrate ordered that
a warrant of arrest of the fugitive criminal be issued returnable by January
G 4, 1989. George was produced before the Magistrate on April 17, 1989. He
was remanded to judicial custody. Thereafter, nothing material happened
on the next six hearing before the learned Magistrate. On May 3, 1989,
copies of the documents numbering 99 pages were supplied to George
through his counsel. These were the documents placed on record in terms
H of para 5 of the order reproduced above, the Government of India dated
-
GEORGE v. U.O.I. [KULDIP SINGH, J.]
149
December 5, 1988.
A
On May 6, 1989, George filed a writ petition being criminal writ
petition No.314 of 1989 before the Delhi High Court. The original record
from the Magistrate's court was summoned to the High Court. The wr~t--"~ ·
petition was dismissed as withdrawn on November 2, 1989. During the 'B
period from May 1989 to December 1989, thirty three further hearings took
place before the Magistrate but the inquiry could not commence because
the High Court was seized of the matter. On December 5, 1989, Shri
J agannathan, Deputy Secretary, Ministry of External Affairs, Government
of India, was present before the learned Magistrate along with his counsel. C
George requested the Magistrate that he had no faith in his counsel iind
to enable him to engage another lawyer, the inquiry be adjourned. Despite
the direction of the High Court to proceed with the inquiry on day-to-day
basis, the learned Magistrate, in the interest of justice, adjourned the
hearing. On December 8, 1989, George was not produced before the
Magistrate from Judicial custody. It was stated that he had been advised D
rest by the jail doctor. The learned counsel for the Union of India contended before the Magistrate that the report of the jail superintendent was
concocted. He requ.!sted the Magistrate to inquire into the matter. On the·
next six hearings, neither the accused appeared before the Magistrate nor
the medical report summoned by him was produced. Finally, on January E
19, 1990, the Magistrate passed an order stating that the non-production
of the accused and non- production of the medical record would be treated
as disobedience of the court's order and as much legal action in accordance
with law would be initiated. On January 30, 1990, the medical record was
produced before the court by the accused prayed that he could not afford F
to engage a lawyer and, as such, legal aid be provided to him. During the
next several hearings extending upto February 19, 1991, the accused did
not permit the court to record the evidence produced by the Government
of India on one pretext or the other. He moved five application before the
Magistrate and insisted that the inquiry could not commence till the time G
the applications filed by him were disposed of. He did not present himself
before the Magistrate on the ground that he had undergone an operation
and was unwell. Meanwhile, Rosiline, wife of the accused, filed another
writ petition in the Delhi High Court on October 26, 1989, challenging the
extradition proceedings on various grounds. The High Court passed an H
•
150
SUPREME COURT REPORTS (1993) SUPP. 3 S.C.R.
A
interim order on December 7, 1989, which was confirmed on January 10,
1990, staying the extradition of George but permitting the inquiry to go on.
Various application filed by the accused before the Magistrate were dismissed by him on April 5, 1990. As mentioned above, the writ petition filed
by Rosiline was finally dismissed by the High Court on December 14, 1990
B giving. rise to these proceedings before us. This Court by order dated
January 7, 1991, stayed the extradition of George till further orders. On
February 20, 1991, this Court stayed further inquiry before the Magistrate.
It is unfortunate that George successfully circumvented the normal extradition proceedings by adopting every possible tactic with a view to prolong
C the proceedings. The case has been in limbo for over five years.
.
Before dealing with the arguments advanced by the learned counsel
for the parties, it would be useful to examine the international documents
evidencing the conclusion of a treaty between the United States of America
and India for the reciprocal extradition of criminals. On December 22,
D 1931, a treaty of extradition was concluded between England and the
United States of America· (1931 Treaty). For the purposes of the said
treaty, the territory of His Britannic Majesty did not include British India.
The treaty was, thus, not applicable to India. Article 14 of the said treaty,
however, provided as under:-
E
F
"Article 14. His Britannic Majesty may accede to the present
Treaty on behalf of any of his Dominions hereafter named -- that
is to say, the Dominion of Canada, the Commonwealth of Australia
(including for this purpose Papua and Norfolk Island), the
Dominion of New Zeland, the Union South Africa, the Irish Free
State, and Newfoundland - and India ..... "
Exercising the powers reserved under the above quoted Article 14
an order called the United States of America (extradition: India) Orderin-Council, 1942 (1942 Order) was issued by the British Government on
February 23, 1942. By the said order, "His Majesty acceded to the 1931
G treaty on behalf of India". The treaty was extended and made applicable
to India with effect from March 9, 1942.
.H
The next relevant document is The Indian Independence (International· Arrangements) Order, 1947 [The International
~rangements
Order]. Under the said order, India agreed that the rights and obligaticins
•
GEORGE v. U.0.1. [KULDIP SINGH, J.]
151
under all international agreements to which India was a party immediately A
before the 15th day of August, 1947 would devolve upon the dominion of
India. The schedule to the International Agreements Order incorporating
the agreement is reproduced hereunder :-
"SCHEDULE
.Agreement as to the devolution of International rights and obligations upon the Dominions of India and Pakistan.
1. The international rights and obligat~ons to which India is entitled
B
and subject immediately before the ~5th day of August, 1947, will C
devolve in accordance with the provisions of this agreement.
2. (1) Membership of all international organisation together with
the rights and obligations attaching to such membership, will
devolve solely upon the Dominion of India.
For the purposes of this paragraph any rights or obligations
arising under the Final Act of the United National Monetary and
Financial Conference will be deemed to be rights or obligations
attached to membership of the International Monetary Fund and
to membership of the International Bank for Reconstruction and
D
Development.
E
(2) The Dominion of Pakistan will take such ste~s as may be
necessary to apply for membership of such international organisations as is chooses to join.
3. (i) Rights and obligations under international agreements F
having an exclusive territorial application to an area comprised in
the Dominion of India will devolve upon that Dominion.
(2) Rights and obligations under international agreements
having an exclusive territorial application to an area comprised in G
the Dominion of Pakistan will devolve upon that Dominion.
4. Subject to Articles 2 and 3 of this agreement, rights and obligations under all international agreements to which India is a party
immediately before the appointed day will devolve both upon the
Dominion of India and upon the Dominion ~f Pakistan, and will H
A
B
c
D
E
F
152
SUPREME COURT REPORTS [1993) SUPP. 3 S.~.R.
if necessary, be apportioned between the two Dominions;"
The Extradition Act 1962 came to be enforced with effect from
January 5, 1963. Sections 2( d) and 3 of the Act are reproduced hereunder:-
"2(d). "Extradition treaty" means a treaty or agreement made by
India with a foreign State relating to the extradition of fugitive
criminals, and includes any treaty or agreement relating to the
extradition of fugitive criminals made before the 15th day of
August, 1947, ·which extends to, and is binding on, India;
3. Application of the Act. - (1) The Central Government may, by
notified order direct that the provisions of this Act other than
Chapter III shall apply, --
(a) to such foreign.State or part thereof; or
(b) to such Commonwealth country or part thereof which
Chapter III does not apply;
as may be specified in the order.
(3) Where the notified order relates to a treaty States--
(a) it shall set out in full the extradition treaty with that State;
(b) it shall not remain in force for any period longer than that
treaty; and
(c) the Central Government may, by the same or any subsequent notified order, render the application of this Act subject
to such modification, exceptions, conditions and qualifications as
may be deemed expedient for implementing the treaty with the
State."
G
Notification dated April 1, 1966 under Section 3(1) read with Section·
3(3) was issued by the Government of India wherein the text of 1931 Treaty
between India and United States of America was set out in full and further
the provisions of the Act were made applicable to the United States of
America.
H
The Embassy of India in Washington D.C. by a diplomatic note dated
GEORGE v. U.O.I. [KULDIP SINGH, J.]
153
July 11, 1967, confirmed the existence of the Extradition Treaty between A
India and the United States. The note is reproduced hereunder :-
"The Embassy of India presents its complements to the Department of States and has the honor to request them to confirm the
existence of the Extradition Treaty between India and the United
States in these words :-
B
"The dominion of India, which came into being on August 15,
1947, became the Republic of India on January 26, 1950 but
remains a member of the British Commonwealth of Nations. This
change is understood not to have affected any agreements in their C
application between the United States and India. The Treaty of
Extradition between the United States and Great Britain entered
into on December 22, 1931 and made applicable to India on March
9, 1942 is therefore considered a good subsisting and binding
convention between the United ~tates and India as of this date.
A copy of the said Treaty is annexed hereto."
The Embassy of India takes this opportunity to renew to the
Department of State the assurances of its highest consideration.
Con.48(2)/66
July 11, 1967
Washington, D.C."
The Department of State of the United States of America acknowledged the receipt of the above quoted note dated July 11, 1967 sent by
the Embassy of India. The acknowledgment by the United States of
America in the following words :-
"The Department of States acknowledges the receipt of the note
No.Con,48(2)/66 dated July 11, 1967 from the Embassy of India
and is pleased to confirm as follows the existence of the Extradition
Treaty in force between the United States and India.
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The dominion of India, which came into being on August 15,
1947, became the Republic of India on January 26, 1950 but
remains a member of the British Commonwealth of Nations. This
change is understood not to have affected any agreements in their
application between the Unitt:d States and India. The Treaty of H
154
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SUPREME COURT REPORTS [1993) SUPP. 3 S.C.R.
Extradition between the United States and Great Britain entered
into on December 22, 1931 and made applicable to India on March
9, 1942 is therefore considered a good subsisting and binding
convention between the United States and India as of this date. A
copy of the said Treaty is annexed hereto.
Enclosure : Treaty Series 849.
Department of States,
Washington, July 21, 1967."
Mr. G.L. Sanghi and Mr. R.K. Garg, learned counsel for the appelC !ants, challenged the extradition proceedings on the following grounds :-
(1) An extradition treaty has to be signed on behalf of two sovereign
States by the competent authorities empowered to do so. Any treaty signed
on behalf of India prior to January 26, 1950 automatically ceased to exist
after India achieved sovereignty. Since there is no concluded extradition
D treaty between India and United States of America after January 26, 1950,
the provisions of the Act are inoperative so far as United States of America
is concerned and there cannot be an exchange of fugitive criminals between
the two countries.
• E
(2) Under the Government of India Act, it was the GovernorGeneral of India who could accede to the extradition treaty with the United
States of America behalf of India. The 1942 Ordr.r could not have extended
the 1931 Treaty to India as the said power could only be exercised by the
Governor-General.
· F
(3) The India (Adaptation of Existing Indian Laws) Order, 1947
(1947 Order) read with the Adaptation of Laws Order, 1950 (1950 Order)
excludes the Orders-in-Council from the definition of "existing Indian laws"
and "existing Central laws" and, as such, the 1942 Order ceased to be an
existing Indian law and became inoperative after 1947 or, in any case, after
G the coming into force of the 1950 Order.
( 4) The Treaty was made applicable to British India by the 1942
Order. The Indian Extradition Act, 1903 was limited in the its extent and
application· to British India and was not applicable to the Indian native
States. As a consequence the extradition treaty, as acceded to by the 1942
H Order, was not applicable to the Indian native States. George having been
-
,
GEORGE v. U.0.1. [KULDIP SINGH, J.)
155
arrested from the State of Kerala which was part of an erstwhile native A
State where the extradition treaty was not applicable, the arrest and
detention of George was illegal and unauthorised.
(5) Sufficient evidence for the extradition of George has not been
produced before the Magistrate within two months of his apprehension. As
such, in term of Article 11 of the 1931 Treaty, George is liable to be set at B
liberty.
( 6) The competent Magistrate to hold an enquiry under the Act is
the Cheif Judicial Magistrate, Ernakalam, in whose jurisdiction the fugitive
was found and arrested. Reliance in this respect is placed on Section 5 of C
the Extradition Act read with Sections 177, 188 and 190 of the Criminal
Procedure Code.
The term 'extradition' denotes the process whereby under a concluded treaty one State surrenders to any other States at its request, a D
person accused or convicted of a criminal offence committed against the
laws of the requesting State, such requesting State being competent to try
the alleged off ender. Though extradition is granted in implementation of
the international commitment of the State, the procedure to be followed
by the Courts in deciding, whether extradition should be granted and on .
what terms, is determined by the Municipal Law of the land. Extradition E
is founded on the broad principle that it is in the interest of civilised
communities that criminals should not go un-punished and on that account
it is recognised as a part of the .comity of nations that one State should
ordinarily afford to another State assistance towards bringing offenders to
justice. J.G. Starke in his book, Introduction to International Law (10th p
Edition) gives the following rational considerations which have conditioned
the law and practice as to extradition.
"a. The general desire of all states to ensure that serious crimes
do not go unpunished. Frequently a state in whose territory a G
criminal has taken refuge cannot prcsecute or punish him purely
because of some technical rule of criminal law or for lack of
jurisdiction. Therefore to close the net round such fugitive offenders, intel'Dational law applies the maxim, 'aut punire aut dedere'
i.e. the offender must be punish'!d by the state of refuge or
surrendered to the state which can and will punish him.
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SUPREME COURT REPORTS (1993] SUPP. 3 S.C.R.
b. The state on whose territory the. crime has been committed is
best able to try the offender because the evidence is more freely
available there, and that state has the greatest interest in the
punishment of offender, and the greatest facilities for ascertaining
the truth. It follows that it is only right and proper that to the
territorial state should be surrendered such criminals as have taken
refuge abroad.
With the tremendous increase of the facility of international
transport and communication, extradition has assumed prominence since
the advent of the present century. Because of the negative attitude of the
C customary international law on the subject, extradition is by and large dealt
with by bilateral treaties. These treaties, inasmuch as they affected, the
rights of private citizens, required in their turn alternations in the laws and
statutes of the States which had concluded them. The established principle
requires that without formal authority either by treaty or by statute, fugitive
D
cr~als would not be surrenderd nor would their surrender be requested.
We may now consider the first contention raised by learned counsel
for the appellant. The precise argument raised by Mr. R.K. Garg is that
there is no valid extradition treaty in existence between India and the
United States of America and as much the extradition proceedings against
E the appellant are without jurisdiction. According to him, the 1931 Treaty
as extended to India by the 1942 order automatically ceased to be operative
after January 26, 1950 when India became a sovereign republic.
To appreciate the argument it is necessary to examine the interF national law on the subject of treaty succession. There is no general rule
that all treaty · rights and obligations lapse upon external changes of
sovereignty over territory nor is there any generally accepted principle
favouring the continuity of treaty relations. Treaties may be affected when
one State succeeds wholly or in part to the legal personality and territory
of another. The conditions under which the treaties of the latter survive
G depend on many factors including the precise from the origin of the
succession and the type of treaty concerned. The emancipated territories
on becoming independent States may prefer to give general notice that they
are beginning with a "clean slate", so far as their future treaty relations were
colleemed, or may give so-called "pick and choose" notifications as to
H treaties as were formally applicable to it before achieving independence.
GEORGE v. U.0.1. [KULDIP SINGH, J.)
157
The "clean slate" doctrine was ultimately adopted in the relevant provisions A
of the Vienna Convention of 1978. The sound general working rule which
emerges is to look at the text of the relevant treaty and other arrangements
accompanying change of sovereignty and then ascertain as to what was the
intention of the State concerned as to the continuance or passing of any
rights or obligations under the treaty concerned. The question whether a B
State is in a position to perform its treaty obligations is essentially a
political question which has to be determined keeping in view the circumstances prevailing and accompanying the change of sovereignty.
We have plenty of evidence to show that India, after achieving
independence, has unequivocally committed itself to honour the internaC
tional obligations arising out of the 1931 Treaty. We have reproduced
'
above the International Arrangement Order wherein India agreed to
honour all the international agreements entered into before August 15,
1947 and agreed to fulfil the rights and obligations arising from the said
agreements. The Parliament made its intention further clear when under
Section 2(d) (quoted above) of the Act it gave inclusive definition to the D
expression "extradition treaty" by including, the treaties made or entered
into prior to August 15, 1947 in the said definition. The most important
document in this respect is the Notification dated April 1, 1966 issued by
the Government of India under Section 3 of the Act, directing that the
provisions of the said Act, other than Chapter III thereof, would apply to E
the United States of America with effect from April 1, 1966. The opening
paragraph of the said Notification is an under :-
"G.S.R/ 493.-- Whereas the Extradition Treaty between the United
States of America and Great Britain and Northern Ireland of p
December 22, 1931, which was acceded to by India on 9th March,
1942, is in force in India from 9th March, 1942 and which treaty
provides as follows: ....... "
The full text of 1931 Treaty was thereafter produced in the Notification. It is thus obvious that the Government of India has, in clear terms, G
accepted that the 1931 Treaty is operative between India and the United
States of America. We have produced in the earlier part of the judgment
the exchange of diplomatic notes between the two countries reiterating that
the 1931 Treaty is considered a "good subsisting and binding convention
between the United States and India as on this date". It was further stated H
158
SUPREME COURT REPORTS (1993) SUPP. 3 S.C.R.
A
that after India became a Republic of January 26, 1950, the change had
not affected any agreements in their application between the United States
and India. We have, therefore, no hesitation in holding that the 1931 Treaty
as extended to India by the 1942 Order is operative between the two
countries.
B
There is no rule of public international law under which the existing
treaty obligation of a State automatically lapse on there being an external
change of sovereignty over its territory. India after achieving independence
specifically agreed to honour its obligations u;· der the international agreements. At no point of time, India disowned the 1931 Treaty. Rather, by
C various overt acts -- indicated above -- India accepted the existence of the
1931 Treaty between the two countries and repeatedly reiterated that it
would honour its obligations under the said treaty. The Supreme Court of
the United States in Tom C. Clarie v. Alvina Allen, 331 US 503-518 held as
under:-
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"It is argued, however, that the Treaty of 1923 with Germany
must be held to have failed to survive the war, since Germany, as
a result of its defeat and the occupation by the Allies, has ceased
to exist as an independent national or international community.
But the question whether a state is in a position to perform its
treaty obligations is essentially a political question. Terlinden v ..
Ames, 184 US 270, 288 46 Led 534, 545, 222 S Ct 484. We find
no evidence that the political department have considered the
collapse and surrender of Germany as putting an end to such
provisions of the treaty as survived the outbreak of the war or the
obligation of either party in respect of them. The Allied Control
Council has, indeed, assumed control of Germany's foreign affairs
and treaty obligation -- a policy and course of conduct by the
political department wholly consistent with the maintenance and
enforcement, rather than the repudiation, of pre-existing treaties."
G
Whether a treaty has been terminated by the State is essentially a
political question. The governmental action in respect to it must be
regarded as of controlling importance. So far as India and the United
States of America are concerned, it is amply evidenced by their actions that
the two States fully recognise their obligations under the 1931 Treaty.
H
It would be useful at this stage to refer to the judgment ;Jr the United
t
I-
GEORGE v. U.0.1. [KULDIP SINGH, J.]
159
States District Court, New York, in lhirad v. Ferrandin(l., 355 Federal A
Supplement 1155. The Government of India sought the extradition of
Jhirad, an Indian citizen and a resident alien in the United States of
America. It was alleged that while working in the Indian Navy Jhirad
embezzled large sums of money from. the naval funds. Jhirad challenged
the extradition proceedings by way of a writ of habeas corpus before the
United States District Court, New York. The United States and India B
relied upon the 1931 Treaty as made effective by the 1942 Order.