# STATE OF WEST BENGAL v. JUGAL KISHORE MORE & ANR

- **Citation:** [1969] 3 S.C.R. 320
- **Court:** Supreme Court of India
- **Decided:** 1969
- **Case number:** Criminal Appeal No. 14 of 1968
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-west-bengal-v-jugal-kishore-more-anr-4871
- **Pages:** 21

## Headnote

STATE OF WEST BENGAL
v.
JUGAL KISHORE MORE & ANR.
Janμary 10, 1969
J. C. SHAH, V. RAMASWAMI AND A, N. GROVER, JJ.J
Extradition-N~ture. of-:-Fugitive Offenders Act (44 & 45 Viet c. 69
o{ .1881)-Inapp/1cab1lity m Republic of India, if bar to obtain ntrad~t~on of fugitive offenders from another Commonwealth country-Extrad1110n Act (34 of 1962), effect of.
After this Court held. in. Sto·te of Madras v. C. G. Menon, [1~51 1
S.C.R. 280 that the Fugitive Offenders Act 1881 was inconsistent with
Art. 14 of the Constitution and was on th;t acco~nt unenfOrceable after
26th January 1950, the Government of India, Ministry of External Affairs
issued a notification on May 21, 1955 indicating the procedure for securing the presence of a fugitive offender in India from the United Kingdom
and other Commonwealth countries.
Under the Notification, the Magistrate concerned is to issue a warrant of arrest of the fugitive offender
under the Criminal Procedure Code, 1898, and the warrant is to be sent
to the Government of India, Ministry of External Affair& through the
concerned State Government.
Thereafter, the Ministry is to address the
appropriate authority in the Commonwealth country through the High
Commissioner for India for the surrender of the fugitive offender.
In 1962, the Indian Extradition Act was passed, but as Hon& Kong
was not included in the First Schedule, that Act could not be resorted
for the surrender of the respondent who was a fugitive offender residing
in Hong Kong.
Action was therefore taken in the present case, pursuant
to the notification.
The Chief Presidency Magistrate Calcutta issued a
warrant under the Criminal Procedure Code for the arrest of the respondent and the warrant was forwarded by the Government of West Bengal
. to the Ministry of External Affairs, Government of India. The Ministry
forwarded the warrant to the High Commissioner for India, Hong Kong,
who in his turn requested the Colonial Secretary, Hong Kong, for an
order extraditing the respondent under the Fugitive Offenders Act 1881
(44 & 45 Viet Ch. 69). The Central Magistrate, Hong Kong, endorsed
the warrant and directed the Hong Kong police to arrest the respondent
referring to the Republic of India as a British possession to which the
Fugitive Offenders Act was applicable.
On the questions : (I ) Whether the Chief Presidency Magistrate had
no power to issue the warrant as it would have extr:i-tenitorial operation;
(2) Whether the Fugitive Offenders Act, having ceased to be part of the
Jaw of India, could be resorted to for obtaining extradition of fugitive
offenders; (3) Whether the instructions of the Government of India for
obtaining extradition are .. an invasion upon the authority of courts; a.n?
( 4) Whether the Extrad11!6n Act, 1962, operates as a bar to the requlSltion made by the Ministry of External Affairs for the extradition of the
respondent,
HELD : (I) The Courts of the country which make a requisitio~ for
surrender proceed upon prima facie proof of the offence .and leave it to
the State to make a requisition upon the other State, in which the offender•
has taken refuge.
Under s. 82 of the Criminal Procedure Code. when a
·warrant is issued by a Magistrate in India, it can be executed anywhere
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in India and has no extra-territorial operation.
By making a requisition
to another State, in pursuance of such a Wflrrant, for assistance in securing
the presence of the offender, the warrant is not invested with
extraterritorial operation. If the other State requested agrees to lend its aid
to arrest the fugitive, the arrest is made by the issue of an independent
warrant or endorsement or authentidation of the warrant of the court
which issued it.
By such endorsement or authentication the State expresses its willingness to lend its assistance in implementation of treaties
or international commitments to secure the arrest of the offender.
The
offender arrested pursuant to the warrant or en

## Text

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STATE OF WEST BENGAL
v.
JUGAL KISHORE MORE & ANR.
Janμary 10, 1969
J. C. SHAH, V. RAMASWAMI AND A, N. GROVER, JJ.J
Extradition-N~ture. of-:-Fugitive Offenders Act (44 & 45 Viet c. 69
o{ .1881)-Inapp/1cab1lity m Republic of India, if bar to obtain ntrad~t~on of fugitive offenders from another Commonwealth country-Extrad1110n Act (34 of 1962), effect of.
After this Court held. in. Sto·te of Madras v. C. G. Menon, [1~51 1
S.C.R. 280 that the Fugitive Offenders Act 1881 was inconsistent with
Art. 14 of the Constitution and was on th;t acco~nt unenfOrceable after
26th January 1950, the Government of India, Ministry of External Affairs
issued a notification on May 21, 1955 indicating the procedure for securing the presence of a fugitive offender in India from the United Kingdom
and other Commonwealth countries.
Under the Notification, the Magistrate concerned is to issue a warrant of arrest of the fugitive offender
under the Criminal Procedure Code, 1898, and the warrant is to be sent
to the Government of India, Ministry of External Affair& through the
concerned State Government.
Thereafter, the Ministry is to address the
appropriate authority in the Commonwealth country through the High
Commissioner for India for the surrender of the fugitive offender.
In 1962, the Indian Extradition Act was passed, but as Hon& Kong
was not included in the First Schedule, that Act could not be resorted
for the surrender of the respondent who was a fugitive offender residing
in Hong Kong.
Action was therefore taken in the present case, pursuant
to the notification.
The Chief Presidency Magistrate Calcutta issued a
warrant under the Criminal Procedure Code for the arrest of the respondent and the warrant was forwarded by the Government of West Bengal
. to the Ministry of External Affairs, Government of India. The Ministry
forwarded the warrant to the High Commissioner for India, Hong Kong,
who in his turn requested the Colonial Secretary, Hong Kong, for an
order extraditing the respondent under the Fugitive Offenders Act 1881
(44 & 45 Viet Ch. 69). The Central Magistrate, Hong Kong, endorsed
the warrant and directed the Hong Kong police to arrest the respondent
referring to the Republic of India as a British possession to which the
Fugitive Offenders Act was applicable.
On the questions : (I ) Whether the Chief Presidency Magistrate had
no power to issue the warrant as it would have extr:i-tenitorial operation;
(2) Whether the Fugitive Offenders Act, having ceased to be part of the
Jaw of India, could be resorted to for obtaining extradition of fugitive
offenders; (3) Whether the instructions of the Government of India for
obtaining extradition are .. an invasion upon the authority of courts; a.n?
( 4) Whether the Extrad11!6n Act, 1962, operates as a bar to the requlSltion made by the Ministry of External Affairs for the extradition of the
respondent,
HELD : (I) The Courts of the country which make a requisitio~ for
surrender proceed upon prima facie proof of the offence .and leave it to
the State to make a requisition upon the other State, in which the offender•
has taken refuge.
Under s. 82 of the Criminal Procedure Code. when a
·warrant is issued by a Magistrate in India, it can be executed anywhere
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in India and has no extra-territorial operation.
By making a requisition
to another State, in pursuance of such a Wflrrant, for assistance in securing
the presence of the offender, the warrant is not invested with
extraterritorial operation. If the other State requested agrees to lend its aid
to arrest the fugitive, the arrest is made by the issue of an independent
warrant or endorsement or authentidation of the warrant of the court
which issued it.
By such endorsement or authentication the State expresses its willingness to lend its assistance in implementation of treaties
or international commitments to secure the arrest of the offender.
The
offender arrested pursuant to the warrant or endorsement is brought before the Court of the country to which requisition is made and that cuort
holds enquiry to determine whether the offender may be extradited. [326 F327B]
Courts in India have no authority to sit in judgment over the order
passed by the Hong Kong Magistrate. He acted in accordance with the
municipal law of Hong Kong and agreed to surrender the offender : his
action cannot be challenged in this Court even if it is wrong. The invalidity of the· arrest in Hong Kong, if any, cannot affect the jurisdiction of
Indian Courts to try the respondent if and when he is brought here.
[334
EJ
Emperor
v. Vinayak Damodar Savarkar, l.L.R.
35 Born.
225,
approved ..
(2) But, in fact the Colonial Secretary of Hong Kong was, according
to the Jaw applicable in Hong Kong, competent to give
effect to the
warrant issued by the Chief Presidency Magistrate, Calcutta and the Central Magistrate, ~ong Kong had jurisdiction under the Fugitive Offenders
Act to direct that the respondent may be surrendered to India. Whatever
may be the position in India after it has become a Republic the United
Kingdom and several Colonies have treated the Fugitive Offenders Act
as applicable for the purpose of honouring the requisition made by the
Republic of India.
Merely because, for the purpose of the extradition
procedure, in a statute passed before the attainment of independence by
the former colonie·s and dependencies, certain territories dpntinue to be
referred as 'British Possessions' the ·statute does not become inapplicable
to those territories.
The expression 'British
Possessions'
in
the
old
statutes me'rely. s1,.1rvives as an artificial mode of reference. Though it is
not consistent with the political realities, it does not imply political depeo ..
dence of the Governments of the territories referred to.
The order of
surrender passed by the Magistrate in Hong Kong was vaJid according to.
the law in force in Hong Kong. [338 H; 3370)
Re. Government of India and Mubarak A.Ii Ahmed, [!952] 1 All E.R.
1060, Re. Kweshi A.rm<h [1966) 2 All E.R. 1006, Zacharia v. Republic
of Cyprus, [1962] 2 All. E.R. 438 and Halsbury's Laws of England 3rd
Edn. Vol. 5 Art. 987, p. 433, referred to.
(3) This Court, by holding in C. G. Menon's case that since India
became a Republic the Fugitive Offenoers Act could not be enforced in
this country, presented the Government of India with a problem which
had to be resolved by devising a machinery for securing the presence of
offenders \Vho were fugitives from justice.
The notification was issued
only in the nature of advice about the· procedure to be followed and was
not in any manner intended as an affront to the Courts or to impose any
executive will upon the courts in judicial matters. [339 E-FJ
Jn the present case, the Chief Presidency Magistrate, Calcutta, had
power to. issue the warrant for the arrest of the respondent bCcause there
was prfma facie evidence against him.
If the. warrant was to be success·
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SUPREME COURT REPORTS
[1969] 3 S.C.R.
fully executed. against the. respondent, who was not in India, the assistallce
of the execbtive government had to be obtained._ Therefort, the is.!ue of
the warrant a~d the procedure followed in transmitting· it were not illegal
and not even irregular .
. ( 4) Extradition is the surrender by one Slate to anothe!' of a person
desired to be dealt with for crimes of which he had been accused or convicted.
Such a surrender is a political act done in pursuance of a treaty
or ."!' ad hoc arrangement, and founded upon the pi'inciple that it is in
the interest of all civilised communities that criminals should not go unpunished.
While the law relating to extradition between independent
States is based on treaties, whether an offender · shoUid' be handed over
pursuant to a requisition is determined by the domestic law of the State
on which the requisition is made.
Therefore, the fact that the Extradition Ac~, 1962, could not be availed of for securing the presence of the
respondent for ·trial in India, did not operate as a bar' to the requisition
made by the Ministry of External Affairs, Government of India, if t&ey
were able to pursuade the Colonial Secretary; Hong Kong, to deliver"the
respondent for trial in this country. If the Colonial Secretary was willing
to do so, it cannot be said that the warrant issued by the Chief Presidency
Magistrate; Calcutta, for the arrest of the respondent with the aid of the
requisition for securing his presence from Hong Kong in India, was illegal.
[325 H; 340 C-E]
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
14 of 1968.
Appeal by special leave from the judgment and order dated
April 20, 1967 of the Calcutta High Court in Criminal Revision
No. 502 of 1966.
B. Sen and P. K. Chakravarti, for the appellants.
A. S. R. Chari, B. P. Maheshwari and Sobhag Mal Jain, for
respondent No. I.
The Judgment of the Court was delivered by
Sbllk J.
In the course of investigation of offences under
ss. 420, 467, 4 71 and 120 B.I.P. Code the Officer in charge of the
investigation submitted an application before the Chief Presidency
Magistrate, Calcutta, for an order that a warrant for the arrest of
Jugal Kishore More and certain other named persons be is.sued
and that the warrant be forwarded with the relevant records and
evidence. to the Ministry of External Affairs,
Government of
India, for securing extradition of More who was then believed to
be in Hong Kong. It was stated in the application that More
and oth•!rs "were parties to a criminal conspiracy in Calcutta between May 1961 and December 1962 to defraud the Government
of India in respect of India's foreign exchange", and thei& presence
'IVas req.uired for trial.
The Chief Presidency Magistrate held an enquiry and recorded
· an order on July 19, 1965, that on the materials placed before
him, a prima facie case was made out of a criminal conspiracy,
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was "hatched in Calcutta" within his jurisdiction, and More was
one of the conspirators.
He accordingly directed that a nonbailable warrant in Form II Sch. V of the Code of Criminal Procedure be issued for the arrest of More, and that the warrant be
sent to the Secretary Home (Political) Department, Government
of West Bengal, with a request to take all necessary steps to ensure
execution of the warrant. A copy of the warrant was sent to the
Commissioner of Police, Calcutta, for information. In the warrant
More was described as Manager, Premko Traders of 7, Wyndhan
Street and 28, King's Road, Hong Kong. The Chief Presidency
Magistrate forwarded to the Government of West Bengal, the
warrant with attested copies of the evidence recorded at the enquiry
and photostat copies of documents tendered by the prosecution
in evidence "in accordance with the procedure laid down in Government of India, Ministry of External Affairs, letter No. K/52/
6131/41 dated 21st May,_ 1955". The warrant was forwarded
by the Government of West Bengal to the Ministry of External
Affairs, Government of India. The Ministry of External Affairs
D
forwarded the warrant to the High Commissioner for India, Hong
Kong, who in his tU!l)t, requested the Colonial Secretary, Hong
Kong, for ·an order extraditing More under the Fugitive Offenders
Act, 1881, (44 and 45 Viet., c. 69), to India for trial for offences
described in the warrant. The Central Magistrate, Hong·Kong,
endorsed the warrant and directed the Hong Kong Police, "pur·
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suant to section 13 of Part II and section 26 of Part N of the
Fugitive Offenders Act, 1881", to arrest More.
The order
recited :
"WHEREAS I have perused this warrant for the
apprehension of Jugal Kishore More,
. . .
accused
of an offence punishable by law in Calcutta, Republic
of India, which warrant purports to be signed by the
Chief Presidency Magistrate, Calcutta, and is sealed
with the seal of the Court of the said Magistrate, and, is
attested by S. K. Chatterjee, Under Secretary in _the
Ministry of External Affairs of the Republic of India and
sealed with the seal of the said Ministry;
AND WHEREAS I am satisfied that this warrant
was issued by a person having lawful authority to issue
the same;
AND WHEREAS it has been represented to me
that the said Jugal Kishore More . . . is suspected of
being in the Colony;
AND WHEREAS Order in Council S.R. and 0. No.
28 of 1918 by virtue of which Part II of the Fugitive
Offenders Act, 1881, was made to apply to a group
324
SUPREME COURT REPORTS
[1969] 3 S.C.R.
of Br,itish Possessions and Protective States including
Hong Kong and British India, appears to remain in full
force and effect so far as the law of Hong Kong is concerned.
Now therefore under section 13 of the Fugitive
Offenders Act, 1881, I hereby endorse this Warrant
and all;thorise and command you in Her Majesty's name,
forthwith to execute this Warant in the Colony to apprehend the said Jugal Kishore More, . . . wherever he may
be found in the Colony and to bring him before a
Magistrate of the said Colony to be further dealt with
according to law."
More was arrested on November 24, 1965. By order dated
April 4, 1966, the Central Magistrate, Hong Kong, over-ruled
the objection raised on behalf of More that the Court had no
jurisdiction to proceed in the matt.er under the Fugitive Offenders
Act, 1881, since the Republic of India was no loneer a "British
P0ssession ",
On May 16, 1966, Hanuman Prasad-father of Moremoved in the High Court of Calcutta a petition under s. 439
of the Code of Criminal Procedure and Art. 227 of the Constitution for an order quashing the warrant of arrest issued against
More and all proceedings taken pursuant thereto and restraining
the Chief Presidency Magistrate and the Union of India from
taking any further steps pursuant to the said warrant of arrest and
causing More to be extradited from Hong Kong to India. The
petition was heard before a Division Bench of the High Court.
A. Roy, J., held that the warrant issued by the Chief Presid~ncy
Magistrate was not illegal and the procedure followed for securing
extradition of More was not irregular. In his view the assumption made by the Central Magistrate, Hong Kong, that for the
purpose of the Fugitive Offenders Act, India was a "British possession" was irrelevant since that was only a view expressed by him
according to the municipal law of Hong Kong, and by acceding
to the requisition for extradition and surrender made upon that
country by the Government of India in exercise of sovereign
rights the status of the Republic of India was not affected.
In the view of Gupta, J., the warrant issued by the Chief Presidency Magistrate and the steps taken pursuant to the warrant were
Without jurisdiction, ·that the request made to the Hong Kong
Government by the Government of India was also without authority in the absence of a notified order under s. 3 of the Extradition
Act, 1962, and the High Court could not ignore the "laws of the
land, even to support a gesture of comity to another nation," that
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what was done by the Hong Kong authorities pursuant to the
request made for the surrender of More was "not an instance of
international comity but was regarded as the legal
obligation
under the Fugitive Offenders Act under which the Central Magistrate, Hong Kong, regarded India as a Colony or Possession of
the British Commonwealth".
The case was then
posted
for
hearing before R. Mukherji, J. The learned Judge held that the
Chief Presidency Magistrate had no power to issue the warrant
of arrest .in the manner he had done,-a manner which in his view
was "unknown to the Code of Criminal Procedure", since the
Fugitive Offenders Act, 1881, had ceased, on the coming into
force of the Constitution, to be part of the law of India and
could not on that account be resorted to for obtaining extradition
of offenders from another country; that the instructions issued
by the Government of India by letter No. 3516-J dated June 14,
1955, laying down the procedure to the followed by the courts
for securing extradition of offenders from the Commonwealth
countries shouid have been ignored by the Chief Presidency Magistrate, and that the Extradition Act 34 of 1962 did not authorise
the Chief Presidency Magistrate to issue a warrant and to send
it to the Secretary, Home (Political) Department, Government of
West Bengal; that there "was no legal basis for the requisition
made by the Central Government to Hong Kong" for extradition
or surrender of More or for the issue of the warrant by the Chief
Presidency Magistrate; and that the demand made by the Government of India to the Government of Hong Kong by making a
requisition to Hong Kong for. the arrest of More "was not a political act beyond the purview of law and judicial scrutiny" and
being inconsistent with the law was liable to be rectified.
He
observed that the Central Government had the power under s. 3
of the Extradition Act, 1962, to issue a notification for including
Hong Kong in the· list of countries from which offenders may be
extradited, but since the Government had not issued any notification under that clause in exercise of the executive power, ·the
Government could not attempt in violation of the statutory procedure seek extradition which the law of India did not permit.
The learned Judge accordingly• ordered that the warrant of arrest
dated July 30, 1965, issued by the Chief Presidency Magistrate,
Calcutta, against More and all subsequent proceedings taken by
the Chief Presidency Magistrate and the other respondents be
quashed.
The State of West Bengal has appealed to this Court
with special leave .
. Extradition is the surrender by one State to another of a person
des1red to be dealt with for crimes of which he has been accused
or convicted and which are justiciable in the courts of the other
State. Surrender of a person
within
the
State
to another
.326
SUPREME COURT REPORTS
(1969] 3 S.C.R.
State-whr:ther a citizen or an alien-is a political act done in
A
,pursuance of a treaty or a~ arrangement ad hoc. It is founded on
the broad principle that it is in the interest of civilized communities that crimes should not go unpunished, and on that account
it is recognised as a part of the comity of nations that one State
~hould ordinarily afford to another State assistance towards bring-
'.ng offenders to justice. The law relating to extradition between
B
mdependeiiit States is based on treaties. But the law has operationnationaJ as well as i.lltemational It governs international relationship between the sovereign States which is secured by treaty
·obligations. But whether an offender should be handed over
pursuant to a requisition is determined by the domestic law of
the State on which the requisition is made. . Though extradition c
is granted in implementation of the international commitments of
the State, the procedure to be followed by the Courts iai deciding
whether extradition .shoulq be granted and on what terms, is
determined by the l!lunicipal. law.
As observed in Wheaten's International Law, Vol. I,
6th
Edn., p. 213 :
"The constitutional doctrine in England .is that the
Crown may make treaties with foreign States for the extradition of criminals, but those treaties can only be
carried into effect by Act of Parliament, for the executive has no. power, without statutory authority, to seize
an alien here and deliver him to a foreign power."
Sanction behind an order of extradition is therefore the international commitment .of the State under which the Court functions,
but Courts jealously seek to protect the right of the individuai
by insisting upon strict compliance with the conditions precedent
to surrender. The Courts of the country which make a requisition for surrender deal with the prima facie proof of the offence
and leave it to the State to make a requisition upon the other
State in which the offender has taken refuge.
Requisition for
surrender is not the function of the Courts but of the State. A
warrant issued by a Court for an offence committed in a country
frnm its very nature has no extra-territorial operation. It· is only
a command by the Court in the name of the sovereign to its
officer to arrest an offender and to bring him before the Court.
By making a requisition in pursuance of a warrant issued by a
·Court of a State to another State for assistance in securing the
presence of the offender, the warrant is not invested with extraterritorial operation. If the other State requested agrees to lend
·its aid to arrest the fugitive the arrest is made either by the issue
of an ·independent warrant or endorsement or authentication of
the warrant of the Court which issued it.
By endorsement or
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authentication of a warrant the country in which an offender has
taken refuge signifies its w,illingness to lend its assistance, in implementation of the treaties or international commitments and to
secure the arrest of the offender. The offender arrested pursuant
to the warrant ·or endorsement is brought before the Court of the
country to which the requisition is made, and the Court holds an
inquiry to determine whether the offender may be extradited. International commitment or treaty will be effective only if the Court
of a country in which the offender is arrested after enquiry is of
the view that the offender should be surrendered.
The functions which the Courts in the two countries perform
are therefore different.
The Court within whose jurisdiction the
offence is committed decides whether there is prima facie evidence
on which a requisition may be made to another country for surrender of the offender. When the State to which a requi~ition is made
agrees consistently with its international commitments to lend its
aid the requisition is transmitted to the Police author:ities, and
the Courts of that country consider, according to their own laws
whether the offender should be surrendered-the enquiry is in
the absence of express provisions to the contrary relating to the
prima facie evidence of the commission of the offence which is
extraditable, the offence not being a political offence nor that the
requisition being a subterfuge to secure custody for trial for a
political offence.
Prior to January 26, 1950, there was in force in India the
Indian Extradition Act 15 of 1903, which as the preamble expressly enacted was intended to provide for the more convenient
administration of the Extradition Acts of 1870 and 1873, and the
Foreign Jurisdiction Act of 1881-both enacted by the British
Parliament.
The Act enacted machinery in Ch. II for the surrender of fugitive criminals in case of Foreign States i.e .. States
to which the Extradition Act of 1870 and 1873 applied and in Ch.
II for surrender of fugitive offenders iill case of "His Majesty's
~ominions". The Extradition Acts of 1870 and 1873 sought to
give effect to arrangements made with foreign States with respect
to !he surrender to such States of any fugitive criminals
Her
Ma1esty may by Order in Council, direct and to prescribe the procedure for extraditing fugitive offenders to ~such foreign states.
As observed in Halsbury's Laws of England Vol. 16, 3rd Edn.,
para 1161 at p. 567 :
"Whe_,n a tr.e~ty has been made with a foreign State
and th~ Extrad1t10n Acts have been applied by Order in
Council, one of Her Majesty's principal Secretaries of
·State may, upon a requisition made to him by some person recognized by him as a diplomatic representative nf
328
SUPREME COURT REPORTS
(1969] 3 S.t.R.
that foreign State, by order under his hand and seal,
signify to a police magistrate that such a requisition has
been made and require him to issue his warrant for the
apprehension of the fugitive criminal if the criminal is in
or is suspected of being in, the United Kingdom."
The warrant may then be issued by a police magistrate on
receipt of the order of the Secretary of State and upon such evidence as would in his opinion justify the issue of the warrant if
the crime had been committed or the criminal convicted in England.
The procedure for extradition of fugitive offenders from
"British possessions" was less complicated. When the Extradition
Act was applied by Order in Council unless it was otherwise provided by such Order, the Act extended to every "British possession" in the same llllliOOer as if throughout the Act the "British
possession" were substituted for the United Kingdom, but with
certain modifications in procedure.
Under Part I of the Fugitive Offenders Act 1881 a warrant
issued in one part of the Crown's Dominion for apprehension of
a fugitive offender, could be endorsed for execution in another
Dominion.
After the fugitive was apprehended he was brought
before the Magistrate who heard the case in the same manner and
had the same jurisdiction and powers as if the fugitive was charged
with an offence committed within the Magistrate's jurisdiction. If
the Magistrate was satisfied, after expiry of 15 days from the date
on which the fugitive was committed to prison, he could make an
order for surrender of the fugitive on the warrant issued by the
Secretary of State or an appropriate officer. There was also provision for "inter-colonial backing of warrants" within groups of
"British possessions" to which Part I of the Fugitive Offenders
Act, 1881 has been applied by Order in Council. In such groups
a more rapid procedure for the return of fugitive offenders between
possessions of the same group was in force. Where in a "British
possession", of a group to which Part II of the Act applied, a
warrant was issued for the apprehension of a person accused of
an offence punishable in that possession and such term is or was
suspected of being, in or on the way to another British possession
of the same group, a magistrate in the last-mentioned possession,
if satisfied that the warrant was issued by a person having lawful
· authority to issue the same, _was bound to endorse ~tich warrant,
and the warrant so endorsed was sufficient authority to apprehend,
within the jurisdiction of the endorsing magistrate the
person
named in the warrant and to bring him before the endorsing magist~ate or some other magistrate in the same possession.
If . the
magistrate before whom a person apprehen.ded was broug~t was
satisfied that the warrant was duly authenticated and was 1ss~ed
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WEST BENGAL V, JUGAL KISHORE (Shah, J.)
329
A
by a persoo having !awful authority to jssue it, and the identity of
the prisoner was establ,ished he could order the prisoner to be returned to the British possession in which the warrant was issued
and for that purpose to deliver into the custody of the persons to
whom the warrant was addressed or of any one or more of them,
and to be held in custody and conveye<j to that possession, there to
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This was in brief the procedure prior to January 2!l, 1950.
The President of India adapted the Extradition Act 1903, in
certain particulars.
The Fugitive Offenders Act, 1881 and the
Extradition Act, 1870, in their application to India were however
not repealed by the Indian Parliament and to the extent they
were consistent with the constitutional scheme
they
remained
applicable.
In order to maintain the continued application of
laws of the British Parliament, notwithstanding India becoming
a Republic, the British Parliament enacted the India (Consequential Provision) Act 1949 which by s. 1 provided :
" ( 1) On and after the date of India's beconiing a
republic, all exis~g law, that is to say, all law which,
whether being a rule of law or a proyision of an Act of
Parliament or of any other enactment or instrument
whatsoever, is in force on that date or has been passed
or made before that date and comes into force thereafter, shall, until provision to the contrary is made by
the authority having power to alter that law ancl subject
to the provisions of sub-s. (3) of this section, have the
same operation in relation to India, and to persons and
things in any way belonging to or connected with India,
as it would have had if India had not become a
republic.
( 3) His Majesty may by Order in Council make
pr~vision. for such satisfaction of any existing law to
which this Act extends as may appear to him to be
necessary or expedient in view of India's becoming a
republic while remaining a member of the Commonwealth, and sub-s. ( 1) of this section shall have effect
in relation to any such law as modified by such an
order in so far as the contrary intention appears in
the order. An Order in Council under this section- ·
(a) may be made either before or after India· becomes a republic, and may be, revoked or varied by a
subsequent Order in Council; and
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SUPREME COURT REPORTS
(1969] 3 S C.R.
(b) shall be subject to annulment in pursuance
of a resolution of either House of Parliament."
In 1954 this Court was called upon to C!ecide a case relating
to extradition to Singapore, a British Colony, of a person alleged
to be a fugitive offender The State of Madr¥S v. C. G. Menon
and Another('). In that case Menon and his wife were apprehended and produced before the Chief Presidency Magistrate,
Madras, pursuant to warrants of arrest issued under the provisions
of the Fugitive Offenders Act, 1881. Arrests were made in pursuance of requisition made by the Colonial ,Secretary of Singapore
requesting the assistance of the Government of India to arrest
and return to the Colony of Singapore Menons under warrants
issued by the. Police Magistrate of Singapore.
Menons pleaded
that the Fugitive Offenders Act, 1881, under which the action
was sought to be taken against them was repugnant to the Cons·
titution of India and was void and unenforceable.
The Chief
Presidency Magistrate referred two questions of law for decision
of the High Court of Madras :
(1) Whether the Fugitive Offenders Act, 1881, applies
to India after 26th J:i,nuary, 1950,
when
India
became a Sovereign Democratic Republic· and
(2) Whether, even if it applied, it or any of its provisions, particularly Part II thereof, is repugnant to
the Constitution of India and is therefore void and
or inoperative.
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The High Court held that the Fugitive Offenders Act was inconsistent with the fundamental right of equal protection of the
laws guaranteed by Art. 14 of the Constitution and was void
to that extent and
unenforceable against the
petitioners.
In
appeal brought to this Court it was observed :
•
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"It is ·plain from the .
. provisions ·of
the Fugitive Offenders Act as well as from the Order
in Council that British Possessions which were contiguous to one another and between whom there was
frequent inter-communication
were treated for purposes of the Fugitive Offenders Act as one integrated
territory and a summary procedure was adopted for
the purpose of extraditing persons who. had committed
offences in these integrated territories. As the laws
prevailing in those possessions were substantially the
same. the requirem!)nt that no fugitive will be surrendered unless a prima facie case was made against him
was dispensed with.
Under the
Indian Extradition
(\) [\955] 1 S.C.R. 280.
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33I
Act, 1903, also a similar requirement is insisted upon
before a person can be extradited.
The situation completely changed when India became a Sovereign Democratic
Republic.
After the
achievement of
independence and the
coming into
force of the new Constitution by no stretch of imagination could India be described as a British Possession
and it could not be grouped by an Order in Council
amongst those
Possessions.
Truly
speaking, it became a foreign territory so far as other British Possessions are concerned and the extradition of persons taking asylum in India,
having committed offences
in
British Possessions, could only be
dealt w~th by an
arrangement
between the Sovereign Democratic Republic of India and the British Government and given
effect to by appropriate legislation. The Union Parliament has not so far enacted any law on the subject and it
was not suggested that any arrangement has been arrived
at between these two Governments. The Indian Extradition Act,
1903, has been adapted but the Fugitive
Offenders Act, 1881, which was an Act of the British
Parliament has been left severely alone. The provisions
of that Act could only be made applicable to India by
incorporating them with appropriate changes into an Act
of the Indian Parliament and by enacting an Indian Fugi-
'tive 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 3 72 of the Constitution. The whole basis for the applicability of Part II of
the Fugitive Offenders Act has gone : India is no longer
a British Possession and no Order in Council can be made
to group it with other British Possessions.
.
.
.
The political
ba~~ground and shape of things when
Part ff of the Fug11Ive Offenders Act, 1881, was enacied
~n~ envisage~ by ~at Act h~ving completely changed,
11 1s not possible without radical legislative changes to
adapt that Act to the changed conditions.
That being
so, in our opinion, the tentative view expressed by the
Presidency Magistrate was right.
"
After this judgment was delivered, the
Government of India
Ministry of External Affairs, issued a notification on May 21'
1955, to all. State Go~ernments of Part A, B, C & D States. It
was stated m the nollfication that :
" .... in a certain case of extradition of an offender, the Supreme Court of India recently ruled that in
.332
SUPREME COURT REPORTS
[!969) 3 S.C.R .
the changed circumstances, the English Fugitive Offenders Act, 1881, is no longer applicable to India. There
can therefore, be no question of issuing a warrant of
arrest, addressed io a foreign police or a foreign court,
in respect of persons who are residing outside India ex-
·cept in accordance with the Code of Criminal Proce-
·dure, 1898.
2. In the circumstances, to obtain a fugitive offender from the United Kingdom and other Commonwealth
·countries, the following procedure may be· adopied as
long as the new Indian Extradition law is not enacted
and the Commonwealth countries ·continue to honour
our requests for the surrender of the fugitive offenders
notwithstanding decisions of the Supreme Court;
(a) The Magistrate concerned will issue a warrant
for the arrest of the fugitive offender to Police officials
of India in the usual form prescribed under the Code of
·Criminal Procedure, 1898.
(b) The w0 rrant for arrest, accompanied by all
such documents as would enable a prima facie case to
be established ,against the accused will be submitted by
the Magistrate to the Government of India in the Ministry of External Affairs, through the State Government
<:oncerned.
3. This Ministry, in consultation with the Ministries
.of Home Affairs, and Law, will make a requisition for
the surrender of a fugitive offender in the form of a
letter, requesting the Secretary of State (in the case of
dominions, the appropriate authority in the dominion)
to get the warrant endorsed in accordance with law.
This letter will be addressed to the Secretary of State
(or other appropriate authority in case of Dominions)
through the High Commissioner for India in the United
Kingdom/Dominion concerned and will be accompanied by the warrant issued by the Magistrate at (a)
of para 2 above and other documents received therewith."
The Chief Presidency Magistrate Calcutta made out the warrant
for the arrest of More pursuant to that notification and sent the
warrant to the Secretary, Home (Political) Department, Government of West Bengal. Validity of the steps taken in accordance
with the notification by the Chief Presidency Magistrate is questioned in this appeal.
To complete the narrative, it is· necessary to refer to the Extradition Act 34 of 1962. The Parliament has enacted Act 34
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WEST BENGAL V. JUGAL KISHORE (Shah, J.)
333
of 1962 to consolidate and amend the law relating to the extradi·
tion •f fugitive criminals. It makes provisions by Ch. II for extradition of fugitive criminals to foreign States and to commonwealth countries to which Ch. III does not apply.
Chapter III
deals with the return of fugitive criminals to commonwealth
countries with extradition arrangements. By s. 12 it is provided :
"(I ) This Chapter shall apply only to any such.
commonwealth country to which, by reason of an extradition arrangement entered into with that country, it
may seem expedient to the Central Government to apply
the same.
(2) every such
application shall be by notified
order, and the Central Government may, by the same or
any subsequent notified order, direct that this Chapter
and Chapters I, IV and V shall, in relation to any such
commonwealth country, apply subject to such modifications, exceptions, conditions and qualifications as it may
think fit to specify in the order for the '" '
'e of imple·
menting the arrangement."
Section 13 provides that the fugitive crimi:.:'L; from commonwealth countries may be apprehended and returned. Chapter IV
deals with the surrender or return of accused or convicted persons
from foreign States or commonwealth countries. By s. 19 it was
provided that-
( 1) A requisition for the surrender of a person
accused or convicted of an extradition offence committed ,in India and who is or is suspected to be, in any
foreign State or a commonwealth country to which
Chapter Ill does not apply, may be made by the Central Government-
( a) to a diplomatic representative of that State or
country at Delhi; or
.
(b) to th~ Gov7rnment of t~at State or country
through the d1plomatlc representative of India in that
State or country;
~d if neither of th~se modes is convenient, the requisition shall be made m such other mode as is settled by
arrangement made by the Government of India with
that State or country.
·
(2) A w~rrant issued by a magistrate in India for
the ap~rehens10n of any person who is, or is suspected
to be, m any commonwealth country to which Chapter
III applies shall be in such form as may be prescribed."
R Sup Cl/69-3
334
~:Ul'REME COURT REPORTS
[1969] 3 S.C. R
By cl. (a) of s. 2 the expression "commonwealth country" means
"a commonwealth country specified in the First Schedule and
such other
commonwealth country as may be
added to that
Schedule by the Central Government by
notification in the
Official Gazette, and includes every constituent
part, colony or
dependency
of any
commonwealth
country so
specified or
added : ".
But in the Schedule to the Act "Hong Kong" is not
specified as one of the commonwealth country and no notification
has been issued by the Government of India under s. 2(a) adding to the
First Schedule "Hong Kong" as a
commonwealth
country.
It is common ground between the parties that
the
provisions of the Extradition Act, 1962, could not be resorted
to for making the requisition for surrender of the fugitive offender
from Hong Kong, and no attempt was made in that behalf.
Validity of the action taken by the Chief Presidency Magistrate must therefore, be adjudged in the light of the action taken
'Pursuant to the notification issued by the Government of India
on May 21, 1955.