Bijayesh Mukherjee, J.
1. This is a case laid before me under Section 439, Sub-section (1), read with Section 429, of the Code of Criminal Procedure, 5 of 1898, with the divided opinions of Brothers Amaresh Roy and Alak Gupta, on the legality of steps taken to secure the extradition of one Jugal Kishore More from Hong Kong to India, and in particular to the Court of the Chief Presidency Magistrate. Calcutta.
2. To begin from the very beginning of the matter now at issue, during the pendency, at the investigation stage, of Taltola police-station case No. 237 dated May 4, 1962, under Sections 120B/420/467/471 of the Penal Code against Suprokash Mukherjeeand others, before the Chief Presidency Magistrate, Calcutta, a Sub-Inspector of Police of the detective department, one Benoy Kr. Mukherjee, drew up a petition on May 11, 1965, to the address of the same Magistrate, stating inter alia: Jugal Kishore More and others 'were parties to a criminal conspiracy in Calcutta between May 1961 and December 1962 to defraud the Govt. of India in respect of India's Foreign Exchange.' Sub-inspector Mukherjee therefore, prayed that the Magistrate 'would be pleased on perusal of the relevant records and recording necessary evidence to issue non-bailable arrest warrants endorsed to Commissioner of Police, Calcutta' against the said More (omitting the names of other persons not material for the present purpose!' for causing execution' at Hong Kong: vide the second sub-paragraph of paragraph 17 of Sub-Inspector Benoy Kr Mukherjee's petition dated May 11, 1965, to the address of the Chief Presidency Magistrate, at page 568 of file III of the Magistrate's records of the case. The petitioning Sub-Inspector prayed for a little more too: for the favour of forwarding 'the warrants with relevant records and evidence to the Ministry of External Affairs, Govt. of India, through proper channel for extradition of' Jugal Kishore More.
3. Such was the petition which Deputy Commissioner P. K. Sen forwarded to the Magistrate, as his endorsement dated May 11, 1965, too, on the left-hand margin at the very first page goes to show.
[See page 563 of File of the III Magistrate's records.]
But filed such petition was in court: the court of the Chief Presidency Magistrate : on May 29, 1965, as the Magistrate's dated initials. coupling with an endorsement, a little above Deputy Commissioner P. K. Sen's testify And that very day. namely, on May 29, 1965, the Chief Presidency Magistrate recorded, in the order-sheets, an order on this petition of Sub-Inspector B. K. Mukherjee (referred to in the order as I.O. : Investigating Officer), observing inter alia :'The warrants for the apprehension of the first three persons named above (of whom Jugal Kishore More is one) will have to be sent to the External Affairs Ministry, Govt. of India, for execution through diplomatic channel. The position therefore requires to be examined with more than ordinary care and I should be satisfied on evidence and other available information that the above-named persons (including, of course, Jugal Kishore More) committed the requisite offence or offences in India and that the issue of the warrants against them is otherwise justified.'
He, therefore, directed the investigating officer 'to arrange for production of relevant evidence, including statement on oath, if any and documents and other materials in support of the requisition' and set the matter down for hearing on June 5. 1965 Such is the Chief Presidency Magistrate's order No. 80 dated May 29, 1965.
4. Evidence - oral and documentary -was entered into on June 5, and thereafter on June 19, 26, and July 17, 1965: vide orders numbering 81, 86, 88 and 101 recorded in the order-sheets of the case. On July 19, 1965, order No. 102, the Chief Presdency Magistrate found, on materials he had put before him a prima facie case made out against Jugal Kishore More of a criminal conspircy, part-of which 'was hatched' in Calcutta within his jurisdiction, and directed issue of a non-bailable warrant of arrest against him. The learned Magistrate did not stop there. He concluded:
'The warrants duly written up be sent to Secretary./Home (Political) Department, Government of West Bengal, who be requested to take all necessary steps with a view to their execution. Fix 30-12-65 as the return able date,
X X X X X A copy of this order be sent to Commissioner of Police, Calcutta, for information.'
5. What was so ordered was carried out on July 30, 1965. A non-bailable warrant of arrest against Jugal Kishore More, Manager, Premko Traders, of 7 Wyndham Street and 28 King's Road, Hong Kong, duly written up in form No. II, schedule V, to the Code of Criminal Procedure, just the form Section 75. Sub-section (1), read with Section 555 thereof, contemplates, and directed to the Commissioner of Police. Calcutta was signed by the presiding officer, namely, the Chief Magistrate, on July 30, 1965, and forwarded too that very day with a covering letter, also dated July 30, 1965, and bearing No. 2175, over the signature of the Magistrate, to the Secretary to the Government of West Bengal, Home (Political) Department. Along with the warrant of arrest were forwarded too, amongst others, the attested copies of evidence recorded by the Magistrate and the photostat copies of documents tendered by the prosecution, just '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' to quote from the Chief Magistrate's letter to the Home Secretary, the Magistrate making it also clear that such letter of the Government of India, Ministry of External Affairs, was sent to him under Home Secretary's 'memo.' No. 4043-P dated 31-5-55 (copy enclosed)' By memo. No 2176 of July 30, 1965, a copy of this forwarding letter was sent to the Commissioner of Police Calcutta, 'for information and for arrangement for execution of the warrants of arrest on receipt of instructions of Government of India.'
6. Here ended the first stage of the proceedings with a view to extraditing Jugal Kishore More from Hong Kong into India. The second stage, also referred to as the intermediate stage, began, by the Secretary, Home (Political) Department, of the State Government, having contacted the Ministry of External Affairs the CentralGovernment, and by the latter having contacted the Commissioner for India, Hong Kong who, in turn, put himself in touch with the Colonial Secretary. Hong Kong, seeking extradition of More under the Fugitive Offenders Act, 1881, 44 and 45 Vict., C. 69 a mode of citation which means no more than this: that this legislation received the royal assent in the session of Parliament beginning in the 44th year, and, concluding in the 45th year, of Queen Victoria's reign, being the 69th statute passed in that session. (See Learning The Law by Dr. Glanville L, Williams, Fourth Edition, page 37.) It only remains to be noticed that the very warrant of arrest the Chief Presidency Magistrate had issued on July 30, 1965, duly sealed with the seal of his court, later attested by (1) Assistant Secretary P. L. Roy of the Home (Political) Department. Government of West Bengal, and (2) Under Secretary S. K. Chatterjee of the Ministry of External Affairs, Government of India, and sealed with the seal of the aforesaid Ministry, was passed on to Hong Kong.
7. Thus ended the second stage, or the intermediate stage, of the extradition proceedings against Jugal Kishore More. Then came the third stage evincing inter alia-
A. endorsement of the self-same warrant of arrest on November 22, 19G5, by Magistrate D. Cons of the Central Magistracy, Hong Kong, to the Hong Kong Police 'Pursuant to Section 13 of Part II and Section 26 of Part of the Fugitive Offenders Act, 1881', the last two paragraphs of the endorsement reading:
'And whereas Order in Council S. R. & O. No. 28 of 1918, by virtue of which Part II of the Fugitive Offenders Act 1881 was made to apply to a group of British 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 (the Chief Presidency Magistrate's warrant) and authorise and command you, in Her Majesty's name, forthwith to execute this warrant in the Colony to apprehend the said Jugal Krishna More, son of Hanuman Prosad 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.'
B. arrest two days later, namely, on November 24, 1965, at Hong Kong of More, who appeared before the Central Magistrate on the same day, only to be remanded until December 1, 1965. 'on HK 510.000,00 bail';
C. the 'Ruling' by the Hong Kong Magistrate on April 4, 1966, overruling the objection taken on behalf of More that he had no jurisdiction to proceed in the matter under the Fugitive Offenders Act, theSovereign Democratic Republic of India having no longer been a British possession. (For the materials I have gone by in this paragraph, see Collection No. TV, File No. 15/65, later transferred to 6/66, of the English Department of the Chief Presidency Magistrate, and Annexure A to the revisional petition in this court, along with the averement in paragraph 4 thereof.)
8. Just one month and eleven days after the ruling dated April 4, 1966, on the Hong Kong Magistrate, to be precise, on May 16, 1966, Jugal Kishore More moved this court through his father and constituted attorney, Hanuman Prasad More, (who subscribes as Hanumanprasad More), under Section 439 of Procedure Code and article 227 of the Constitution, and obtained a rule calling upon (1) the Chief Presidency Magistrate, Calcutta, (2) the Assistant Secretary, Home (Political) Department. Government of West Bengal, (3) the State of West Bengal, (4) the Under Secretary, Ministry of External Affairs, Government of India, and (5) the Union of India, why the warrant of arrest dated July 30, 1965, and all proceedings taken pursuant thereto should not be quashed, and restraining the five respondents just named from, amongst others, taking any further steps pursuant to the said warrant of arrest and causing him (the petitioner Jugal Kishore More) to be extradited from Hong Kong.
9. This is the rule which came up for hearing before Brothers Amaresh Roy and Alak Gupta 'composing (then) the Court of Revision.' And they heard it on July 29, August 2, 3, 11 and 12, 1966. They were, however, equally divided and delivered their dissentient opinions accordingly on November 25. 1966. Apprised of this, the Chief Justice assigned the case to me on December 6, 1966. I was, however, posted with this assignment on February 1, 1967, and could hear the case, so laid before me, only on April 5, 1967, after two unavoidable postponements. I express my indebtedness for the assistance I have received from Mr. Ajit Kumar Dutt and Mr A. C. Mitra, Standing Counsel, on behalf of the petitioner and the respondents respectively.
10. The first point on which my learned brothers have differed is about the jurisdiction of the Chief Presidency Magistrate to issue the warrant of arrest he did, and in the manner he did on July 30, 1965, against the petitioner Brother Amaresh Roy finds in favour of such jurisdiction. Brother Alak Gupta does not.
11. On a difference as this, what is apt to call one's attention first is Section 32 of the Procedure Code, which bears:
'A warrant of arrest may be executed at any place in India.'We all know, and all too well, what is India. But, in the forensic realm, that is not per-haps enough. The question is: what was, a law, India on July 30, 1965, when the Chief Presidency Magistrate had issued thewarrant of arrest against the petitioner More? The answer is, in the words of Section 3, Clause 28, of the Central General Clauses Act, 10 of 1897, in so far as it is material here:
'India' shall mean, --
(c) as respects any period after the commencement of the Constitution, all territories for the time being comprised in the territory of India.Barring 15 articles of a provisional and transitional nature, which do not bulk large here, the bulk of the Constitution came into force on January 26, 1950. That day, therefore, is the date of the commencement of the Constitution: article 394. And it was years ahead of July 30, 1965 the date of the issue of the impugned warrant. Sure enough, on that day, the territory of Hong Kong was not 'comprised in the territory of India' (Nor was it ever.) It is, therefore, plain that even the issuer of the warrant, namely, the Chief Presidency Magistrate did not expect for a moment the Commissioner of Police, to whom the warrant was directed, and upon whom the magistrate's directive in the warrant was-
'You are hereby directed to arrest the said Mr. Jugal Kishore More, and produce him before me Herein fail not.' to go all the way to Hong Kong, track More at 7 Wvndham Street. 28 King's Road or anywhere in the colony of Hong Kong, and then produce More before him Nothing of the kind did or could ever cross the mind of the issuing Magistrate. This is why he was sending the warrant, though directed to the Commissioner of Police, to the Home Secretary of the State Government for onwards transmission to the Government of India in the Ministry of External Affairs for extradition of More, which, indeed, he makes no secret of in his letter to the Home Secretary: letter No. 2175 dated July 30. 1965. This is why he was sending a copy of this forwarding letter to the Commissioner of Police, as he had forwarded to him earlier a copy of his order No. 102 dated July 19, 1965, (see paragraph 4 ante), asking him to arrange for execution of the warrant on receipt of Government of India's instructions. Plainly, the Chief Presidency Magistrate was then telling the Commissioner of Police only this:
'True it is, by the warrant I have issued, I have directed you to arrest More of 7 Wyndham Street and 28 King's Road, Hong Kong, and to produce him before me. But you need not do anything here and now. You cannot too. Indeed. I have not even sent the warrant to you I have sent it to the State Home Secretary instead, for sending it to Government of India with a view to extraditing More into India. So, await Government of India's instructions telling you when More will be brought in India, and exactly where Then, you arrange for execution of the warrant I have issuedunder Section 75 of the Procedure Code in form No. II schedule V thereto.' is such a course permissible under the Procedure Code? is it making proper and legitimate use of Section 75? Or does it not come to using the section for a purpose for which it was never intended?
12. Brother Amaresh Roy holds, it does not. He sees no illegality in what the Chief Precidency Magistrate has done. He does not, for three reasons, the first of which is:
'Jurisdiction of the Court of the Chief Presidency Magistrate of Calcutta must be viewed at the present stage only upon the allegations made and not by what may be established at any later stage of the proceeding.'
What are the allegations made? Again, to Sub Inspector Mukherjee's petition dated May 11, 1965, and filed in the court of the Chief Presidency Magistrate on May 29 next. It bears:
Jugal Kishore More and others '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 foregin exchange.' just what I have extracted out in paragraph 2 ante Upon such allegations, the Chief Presidency Magistrate has undoubtedly the jurisdiction to try or inquire into the offence, according as the prescription of the law is, or the Chief Presidency Magistrate failing some other competent tribunal, e.g., the Special Court, has the obvious jurisdiction to try such offence, just as the mandate of the West Bengal Criminal Law Amendment (Special Courts) Act. 21 of 1949, is. But that is not the sort of jurisdiction at issue here This is not the sort of jurisdiction Brother Amresh Roy speaks of either. What is at issue here, and necessarily what Brother Amresh Roy dwells on too come to that species of jurisdiction which speaks 'Of Processes To Compel Appearance', just the caption chapter 6 of the Procedure Code bears. There are three kinds of such processes dealt with here: A. Summons B. Warrant of Arrest, and C. Proclamation and Attachment The case in hand concerns the second variety of processes to compel appearance: a warrant of arrest, dealt with in twelve sections of Chapter 6 Sections 75 to 86. Do these sections, sigly or collectively, confer jurisdiction upon the Chief Presidency Magistrate to issue a warrant of arrest against one accused of having committed an offence within his jurisdiction, but having fled India and staying in the colony of Hong Kong, for execution right there? They do not Indeed, they say just the opposite, expressly as well by implication. (More of which in paragraph 14 infra.) Therefore, I am unable, with respect, to agree with Brother Amresh Roy that 'the Chief Presidency Magistrate. . . . had the jurisdiction to issue a Warrant of Arrest under Section 75 Cr. P. C. In Form No. II, in Schedule V of Code of Criminal Procedure' in the manner he did.
13. That this is so is proved all the more when I proceed to examine as I now do the second reason Brother Amresh Roy gives in the opinion delivered by him:
'It is true that by Section 82 that warrant of arrest may be executed at any place in India and also by effect of Section 1 (2) Cr. P. C. the legal force of such Warrant cannot have effect beyond the limits of Indian territory by the force of Indian law alone But that limit of its effectiveness for execution is not a reason in my view for reading into Section 75 Cr P C a limit of jurisdiction to issue a Warrant against any person anywhere, who upon the allegations is amenable to the jurisdiction under Sections 3 and 4 of the Penal Code Although crime is in general territorial. Penal Law of India by Sections 3 and 4 of I. P. C. apply to extra-territorial offences and persons outside India for trial if found in India.' Brother Rov continues:
'Section 75 Cr. P. C. gives power to issue Warrant of Arrest in respect of a person without reference to the territory where that person may be at the date of issue of Warrant Execution of that Warrant as it can be effective in India and not outside by dint of Section 82 Cr P C But that is not a reason to curtail the power to issue the Warrant. If the person can be found in India, he can be arrested by execution of Warrant as it is in India.'
14. Let the Procedure Code's some of the relevant provisions, as also the Penal Code's including those referred to by Brother Amresh Rov and by Mr Dutt in the course of his address before me be submitted to somewhat of a detailed examination first in the context of facts I see before me The second division of chapter 6. captioned B-Warrant of Arrest-, opens with Section 75 in conformity with which the impugned warrant prima facie is. by itself this section presents no difficulty But so soon as you pass on to the next section, Section 76, a difficulty shows its head Section 76 says inter alia: 'A court issuing a warrant for the arrest of any person may direct security to be taken When it pleases the court to direct so and security is, in fact, taken the offi-cer to whom the warrant is directed shall forward the bond to the court.' in the case in hand, the warrant against More is no doubt non-bailable. But that is another matter The proposition whether or no a court can issue a warrant for the arrest of an accused man outside India by its execution at the other end is being tested Were the court issuing a warrant in such a case minded to direct security to be taken, it is there to be seen that Section 76 would not work Would not work too Section 514 which lays down the 'procedure on forfeiture of bond' That indeed is plain.Still only this may be pointed out. The court here shall not authorize, as indeed it cannot, the attachment and sale of any moveable property of the refractory surety, lying outside India with a view to bringing him to book; a fortiori, the court will not. as indeed it cannot, lodge such a one in civil jail for contumacy See Section 514, Sub-sections (3) and (4). From Section 76, come to Section 81 which provides that the person arrested is to be brought before the court without delay, subject to the taking of security under Section 76 Who will he brought by? By the police-officer executing the warrant (I am excluding a person other than the police-officer though Section 81 provides so, because, dealing as I am with a warrant by a Presidency Magistrate, it is not for him to direct a warrant to landholders, farmers etc.--a direction it is open to a District Magistrate or a Sub-divisional Magistrate to give under Section 78 On the contrary under Section 77 a warrant when issued by a Presidency Magistrate, shall always be directed to one or more police-officers.) In the very nature of things, the Police Chief of Hone Kong, in the case in hand, will not bring More before the Chief Magistrate here, with or without unnecessary delay Indeed, the impugned warrant is not directed to him, as it cannot be. It is directed instead to the Commissioner of Police. Calcutta, but on paper On paper, because it is not even sent to him, the addressee though he is. It is sent instead to the State Home Secretary, not for transmission to the Commissioner of Police, though the arms of the issuing magistrate are lone enough to reach the Commissioner of Police without the intervention of any dignitary but for onward transmission to the External Affairs Ministry of the Central Government and then to the Hong Kong authorities through the Commission of India at Hone Kong, Proper use indeed of Section 75 and of chapter 6 with vengeance (More of which hereafter in paragraphs 15-17 infra.) Ignoring, for the time being, such extravagant use of Section 75. It is plain that the Commissioner of Police, to whom the warrant is directed under the colour of Section 77 which the Code never intended to be pressed into service in the manner it has been in the present case is incapable of doing what Section 81 requires him to do so lone as the Government of India, a body not even referred to by this catena of sections does not succeed in landing More within the limits of his jurisdiction Thus if the Commissioner of Police is impotent to execute the impugned warrant on his own--and he is so potent to execute a warrant within his jurisdiction--any other police-officer whose name he can endorse upon the warrant, would be equally impotent thereby rendering another section: Section 79 unworkable. What the mandate of Section 82 limiting the periphery within which a warrant may be executed : 'at any place in India,' has beennoticed. (See paragraph 11 ante.) May be noticed too, if only to understand the scheme and scope of the Procedure Code, two other classes of provisions : Sections 83-86 by virtue of which a warrant may very well run, for execution, outside the local limits of the jurisdiction of the Court issuing it, but to any place in India, not beyond, not anywhere in the world; and Section 58 which empowers a police-officer to pursue an offender, even without warrant, into other jurisdictions, but always inside of India. Indeed, the position cannot but be so. For, does not Section 1, Sub-section (2), of the Procedure Code bear:
'It (the Code of Criminal Procedure) extends to the whole of India. . . '? The plainest of the plain implication, therefore, is that it does not extend outside India which, again, is plain common sense. Who has ever heard of a municipal law of the country elevating itself to the height of international law binding other sovereign states and their officers as well? That, therefore, appears to be a settler on the point I am on now. And the point I am on now is whether or no the Procedure Code authorizes the Chief Presidency Magistrate to issue the impugned warrant in the manner he has done First and last, does the Code provide anywhere that it is open to a magistrate to call in aid Section 75, read with form II in schedule V. with a view to issuing a solemn warrant sending it to a secretary to the State Government for onward transmission to the Government of India in the Ministry of External Affairs and then to the authorities at Hone Kong for extraditing a wanted person into India? For all I see. It does not. At any rate. T do not find any such provision on my own. Nor have I been told of any by the Standing Counsel. The second proviso to Section 188 is no doubt there, and, what is more, speaks of extradition too. But in what context? if a citizen of India is liable for offences committed out of India, if any person commits an offence on any ship or aircraft registered in India, wherever it may be, then proceedings against him under Section 188 bar further proceedings against him under the Indian Extradition Act in respect of the same offence in any territory beyond the limits of India: just the principle of Section 403. That is all this proviso says. And it has little to do with the problem before me. Again, Section 188 provides inter alia that such a citizen of India or such a person (one who has committed an offence out of India etc.) 'may be dealt with in respect of such offence as if it had been committed at any place within India at which he may be found.' But More is charged with having committed an offence in India, not out of India, as the petitioning sub-inspector (Mukherjee) clearly says, and as the ChiefPresidency Magistrate records too no less clearly. So, Section 188 can do no duty here. Even if it be that More has committed an offence out of India and that he is a citizen of India too, Section 188 remains as idle as ever, for the simple reason that he is not found in India. Section 188 is not, therefore, for such a one. It is for one, who may be found in India, no matter that he has committed an offence out of India No matter, because of the legal fiction is Section 188 by which it will be deemed as if he had committed an offence at any place in India at which he may be found. If, fortunately for the prosecution, More were actually found in India, no matter how, the legal 'battle' it has been my privilege to see would have been irrelevant. More's arrest would have been then perfectly legal, the manner in which he has fallen into the hands of justice being neither here nor there. The fact that he has fallen so is enough. On this aspect of the matter, we are all agreed: Mr. Dutt. Mr. Mitra and I. By parity of reasoning that goes before, three other allied sections two of which precede Section 188 and one of which follows it must he ruled out. Section 186, for example, arms a class of magistrates with the power to issue warrant for offence committed beyond their local jurisdiction, whether within or without India, only when they see reason to believe that the offender is within the local limits of their jurisdiction, emphasizing once more the limits within which a warrant can run. The limits are the limits of India. Everything apart, surely the Chief Presidency Magistrate was not satisfied that More was within the local limits of his jurisdiction. Truth to tell, he was satisfied just the other way about: More was much too beyond his jurisdiction, beyond India even. He was in Hong Kong. That indeed is writ large upon all he has done from the beginning to the end, right from May 29, 1965, to July 30 following. See paragraphs 3-5 ante. Section 187 is ancillary to Section 186. Section 186 failing here, and fail it must Section 187 fails too. Section 189 remains. All it provides for inter alia is that the State Government, if it thinks fit direct, in proceedings under Section 128, reception of copies of depositions or of exhibits, produced before thespecified authorities of the territory outside India where the offence is alleged to have been committed, in evidence by the court in India. On the point I am on now, whether or no the Chief Presidency Magistrate could issue the warrant under Section 75 of 6he Procedure Code in the manner he did, Section 189 has little to contribute. The proceedings before the Chief Presidency Magistrate were not proceedings under Section 188. And Section 189 does not provide for a warrant of arrest. But it will have an importance all its own when I came to the letter No. K/52/6131/41 dated May 21, 1955, of the Government of India, Ministry of External Affairs, in strict conformity with which the Chief Presidency Magistrate did all he had done, as noticed in paragraph 5 ante. (More of which hereafter in paragraph 24 infra.) The fact of the matter is that Section 188 creates no offence; coupling with Sections 186, 187 and 189, it prescribes a procedure by which is conferred an extraterritorial jurisdiction as respects offences committed (i) by citizens of India in any place without and beyond India, or (ii) by any person on any ship or aircraft registered in India, wherever it may be: a 'floating' India, so to say, in any part of the globe. It is only a corollary to Section 4 of the Penal Code which provides for extension of the Code to extra-territorial offences. Again, whereas Section 4 of the Penal Code confines itself to any offence committed (1) by any citizen of India in any place without and beyond India and (2) by any person on any ship or aircraft registered in India, wherever it may be. Its procedural counterpart (section 188) speaking the same language, as it must, there is another section of the Penal Code, Section 3, which also pro-vides for the extra-territorial operation of the Code to any person, liable by Indian law, to be tried for an offence committed beyond India, in the same manner as if it had been committed within India. But. In vain, does one look to these provisions for an authority upon the Chief Presidency Magistrate to issue the warrant in the manner he has done. In spite of such extra-territorial operation the warrant issued by a magistrate will not have an extra-territorial effect. It will run inside of India, and not beyond. And then for offences committed beyond India, if the offender is found in India, as Section 186 and 188 of the Procedure Code contemplate, either arrest and try him here (an extra-territorial operation) or extradite him into the country where, it is said, he has committed the offence. That has little to do with the facts in hand. The only other section of the Penal Code which need be referred to is Section 216 dealing, amongst other things, with the offence of harbouring one who is liable to be apprehended under any law relating to extradition.
15. Such then is the conspectus I have tried to make of the relevant provisions ofthe two Codes. Where, I ask, is the authority for the learned Chief Presidency Magistrate to do what he has done? To enter into evidence, to issue a warrant of arrest directed to the Commissioner of Police, yet to send it not to him but to the State HOME Secretary for onward transmission to fileGovernment of India etc., etc., such have been the actions taken by the learned magistrate. But by virtue of what law? The Code of Criminal Procedure nowhere empowers him to do so. And he is but a creature of the Code. So, it is not for him to rise above the Code that has created him. Once more, I am unable to agree with Brother Amaresh Roy that the Chief Presidency Magistrate has the power to issue the warrant in the manner he has done. So I say, with due deference. But, in so far as my learned brother says, the warrant is effective in India where it can be executed, etc., etc., with respect, I am in entire agreement with him. That is not, however, the species of warrant I see before me. What I see before me is an amazing document in the shape of a warrant of arrest purporting to be under Section 75, not going through the gamut of the rest of the provisions of the Code touching a warrant, but going instead through a procedure the Procedure Code knows not: transmission to the State Home Secretary for passing it on higher up and ultimately to Hong Kong. This is not a case of curtailing or limiting the power of a magistrate under Section 75, as my learned brother says. It is a case of the learned magistrate having no power whatever to issue the warrant of arrest in the manner he has done--a manner unknown to the Codethe veneer of Section 75 notwithstanding. It is a case of taking proceedings under the colour of Section 75 which does not and cannot, apply to facts on the basis of which its use was sought by Sub-inspector Mukherjee and permitted by the magistrate.
16. A straightforward course for the learned magistrate would have been to say:
'I am not going to send my warrant under Section 75 to the Home Secretary. I am not, because I do not find any lawunder which I can do so. I am sending it instead to the Commissioner of Police to whom indeed I have directed the warrant under Section 77. How he will execute it is his business, not mine.'
Had he done so, he would not have laid himself open to the charge of exercisine his power under the colour of Section 75. And it would have been open to the Commissioner of Police to execute the warrant whenever More was to be found within his jurisdiction. Fully aware of the true facts, the learned magistrate suffered Section 75 to be called in aid, though its aid was never intended by the Code in a situation as this involving transmission of the warrant to a secretary to the State Government instead of to the Commissioner of Police, for furthertransmission with an object the Code does not provide for, This leads Brother Amaresh Roy to say--and this is his third and last reason in favour of the Chief Presidency Magistrate's jurisdiction in the manner it has been exercised :
'In my view awareness of the Magistrate that the Warrant may have to be executed by resorting to Extradition of the person from foreign territory does not add to the powers or take away any power of the Magistrate which he had under Section 75 Cr. P. C. to secure apprehension of an wanted accused person.'
Mr. Mitra supports this reason by his submission: 'There is nothing illegal in the impugned warrant ex facie. So, why test its legality by looking to the purpose behind it? Once the magistrate's power is there -- and it is there -- the exercise of that power cannot be struck down, no matter what the purpose is.'
17. With respect, I am wholly unable to agree. A warrant of arrest is a serious matter not to be trifled with. It leads to the arrest of a person -- a fellow-citizen of ours or not -- by the police-officer touching or confining the body of that person, unless there be submission to the custody by word or action. And if such person forcibly resists the endeavour to arrest him, the police-officer will meet force with force no more than is necessary, the only prohibition upon him being that, in doing so, he shall not cause the death of a person who is not accused of an offence punishable with death or imprisonment of life. I am simply paraphrasing action 46 of the Procedure Code. In sum an arrest in the wake of a warrant of arrest is deprivation of the personal liberty of the person arrested it is, therefore, incumbent upon the magistrate to issue a warrant strictly in accordance with law The Procedure Code is empty of any provision authorizing him to issue the warrant in the manner he has done I, therefore, see illegality in the warrant on the very face of it, 'ex facie', as Mr Mitra puts it and below it too No question do T see here of adding to or taking away from, the power of the magistrate. Because the magistrate has no power under the Code to issue the warrant in the manner he does, on facts placed before him by the petitioning sub-inspector (Mukheriee). On the contrary, by invoking Section 75, though fully aware of the fact that the warrant will not run its course chartered by the Code, but will go a different way unknown to the Code, he has made a colourable exercise of his power thereunder An extreme illustration has been taken in the course of discussions at the Bar. Say a magistrate issues a warrant, which he has the power to do. to arrest a person with a view to lighting his cigarette. Will you strike down such warrant, though the magistrate's power is there? I will, and in half a second More, in order to show my grave displeasure of such an un-pardonable abuse of the process of the court, I shall recommend that such a magistrate, who is a menace to law and society, be divested of his magisterial powers forthwith. So, in the instant case, the magistrate being aware of the purpose for which the warrant is sought -- a purpose the Code has no truck with -- has very much to contribute to the illegality of the impugned warrant, And, in the circumstances, the only conclusion that can be come to, in my judgment, is the conclusion come to by Brother Alak Gupta, if I may say so, with respect :
'A warrant under Section 75 is clearly not intended for the purpose for which it is sought to be used in the instant case ..... I am afraid it is not possible toconsider the validity of the warrant without taking into account the reason which prompted the court below to issue it. One cannot shut one's eyes to the prayer made by the Investigating Officer and the Orders Nos. 80 and 102 recorded by the court below which express clearly the purpose for which the warrant was issued, namely, to secure the extradition of the petitioner from Hong Kong. The impugned warrant was not meant to be executed as a warrant under Section 75 which it purports to be but was intended to serve another purpose which the Code of Criminal Procedure does not contemplate. The steps taken by the court below in sending the warrant to the Secretary. Home (Political) Department, Government of West Bengal, so that the document might be sent out to Hongkong are foreign to the Code of Criminal Procedure under which that Court functions. Therefore the issue of the warrant and the steps taken pursuant to it must be held to be invalid unless there is some provision of law other than the Code of Criminal Procedure which justifies the issue of such warrant for the express purpose for which it was issued. '
18. Is there some provision of law other than the Code of Criminal Procedure, just the question Brother Gupta poses? None, for all I see and all I am told Still, before pursuing the matter further, the Supreme Court decision in State of Madras v. C G. Menon : [1955]1SCR280 , must be reviewed. It is a case converse to the one I am seized of Mr Menon, a barrister-at-law, was practising as an advocate and solicitor in the colony of Singapore Mrs. Menon, an advocate too of the Madras High Court, was a quondam member of the Legislative Council of the colony. They came to India sometime after July 1952, only to be arrested on or about August 22. 1952, under Sections 12 and 14, Part II, of the Fugitive Offenders Act 1881, and produced before the Chief Presidency Magistrate. Madras, as the result of communications between the Colonial Secretary of Singapore and Government of India whose assistance was sought for the arrest and return of the Menons to Singapore. The charge against Mr. Menon was several counts of criminal breach oftrust, and that against Mrs. Menon for abetment thereof. Mahajan C. J., speaking for the Court, analysed the provisions of the Fugitive Offenders Act 1881 and found a dichotomy therein. One, for persons committing offences in the United Kingdom, British Dominions and foreign countries in which the Crown exercised foreign jurisdiction, Part I of the Act was to be followed before surrendering them. And that invariably meant : no prima facie case, no extradition, even after the apprehension of the fugitive on the foot of a provisional warrant. That is the combined effect of Sections 3-5 in Part I of the Act. Two, extradition inter se between British possessions was treated on a different footing. Such possessions were grouped together according to their contiguity by an Order in Council and regarded as one integrated territory, with the result that the test of a prima facie case, of 'a strong or probable presumption that the fugitive committed the offence mentioned in the warrant', to quote from Section 5, was not required. That is Part II of the Act captioned : Inter-Colonial Backing of warrants, and Offences, Section 12 wherein providing that this part 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, by periodic Orders in Council, and Section 14 wherein providing that the magistrate, on being satisfied that the warrant is duly authenticated as directed by the Act, and was issued by a person having lawful authority to issue the same, and that the prisoner brought before him 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. The Menons were the prisoners brought before the Chief Presidency Magistrate, Madras, by virtue of such warrant issued by the Third Police Magistrate. Singapore, under Sections 12 and 14, Part II of the Fugitive Offenders Act, read with an Order in Council dated January 2, 1918, grouping together British Possessions, such as British India, Ceylon, Hong Kong, the Federated Malay States, the Straits Settlements etc., for the purposes of Part II of the Act.
19. But, to continue noticing the Supreme Court decision, India, a Sovereign Democratic Republic, was no longer a British Possession, and no Order in Council could be made to group India with other British Possessions. Thus, the whole basis of the applicability of Part II of the Fugitive Offenders Act was gone. No law was then enacted on the subject by the Union Parliament No arrangement was there either between the colony of Singapore and India The Indian Extradition Act, 15 of 1903, was adapted, but not the Fugitive Offenders Act, an Act of the British Parliament, which was left severely alone. Article 372 of the Constitution could not save this British Act, because the grouping of India with British Possessions would be repugnant to the concept of a sovereign democratic republic. Result : it was not possible to work out the sections of the Fugitive Offenders Act and to apply them to the situation that arose after the coming into force of the Constitution of India on January 26, 1950. The attempt to extradite the Menons out of India into Singapore on the strength of the Fugitive Offenders Act, therefore, failed.
20. Such was the decision rendered by the Supreme Court on May 19, 1954 A little more than a year later, to be exact, on May 21, 1955, the Government of India in the Ministry of External Affairs issued a circular, bearing No. K/52/613/41, to all State Governments : just the circular the Chief Presidency Magistrate governed himself by, as noticed in paragraph 5 ante. Over the signature of Under Secretary Chopra, and bearing the caption : Procedure in case of extradition of offenders from Commonwealth countries, it consists of three paragraphs. The first paragraph recalls that 'in a certain case of extradition of an offenders' the Supreme Court 'recently ruled' on the non-applicability of the Fugitive Offenders Act 1881 'in the changed circumstances' (Obviously the Menons' case is being referred to.) What is, therefore, stressed is the issue of a warrant of arrest for persons residing outside India in accordance with the Code of Criminal Procedure. 1898, there being no further question of the issue of a warrant 'addressed to a foreign Police or a foreign Court' Here ends the first paragraph.
21. The second paragraph lays down a procedure which 'may be adopted 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 decision of the Supreme Court.' The procedure is. In the words of the circular :
'(a) The Magistrate concerned will issue a warrant for the arrest of the fugitive offenders to police officials of India in the usual form prescribed under the Code of Criminal Procedure, 1898
(b) The warrant 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 concerned.' Here ends the second paragraph.
22. The burden of the third paragraph is how the External Affairs Ministry, in consultation with the Ministries of Home Affairs and Law, will make a requisition for the surrender of a fugitive offender.
23. Brother Amaresh Roy does 'not find any impropriety or affront so strongly contended by Mr. Dutt in the very fact that after the Supreme Court decision and beforeenactment of Extradition Act, 1962, instructions were given' as above. But his Lordship finds 'an incorrectitude' in instruction (b) just reproduced, which, to his Lordship's mind, is 'objectionable not only for the reason that an Under Secretary to the Government of India, and for that matter, any executive officer in India, has no power to dictate to a Magistrate in his judicial functions, but also for the reason that by Sections 77 to 84, Code of Criminal Procedure lays down to whom a warrant shall be directed by the Magistrate.' His Lordship, therefore, observes that 'only that part of the order No. 102 dated 19-7-65 by which the Chief Presidency Magistrate has followed the executive instructions by directing' the transmission of the warrant, duly written up to the Secretary. Home (Political) Department -- (which I have reproduced in paragraph 4 ante) 'is an error and impropriety', revealing as it does a direction which 'he (the Chief Presidency Magistrate) should not have and could not have made' At the same time. Brother Amaresh Roy sees neither illegality nor prejudice to More by reason of such order the validity of which, he holds, 'has not been affected in the least thereby ' To Brother Alak Gupta, however.
'. . . . the Circular has obviously no statutory force and cannot validate the steps taken by the court below. If in fact the learned Chief Presidency Magistrate followed the procedure set out in the Circular because he thought it was imperative on him to do so though neither the Code of Criminal Procedure nor any other law authorised to proceed him in that manner, his action did not certainly enhance the prestige of the Judiciary of the State.'
This is the second main point on which (sic) learned brothers have differred.
24. With the greatest respect, I prefer Brother Alak Gupta's opinion to Brother Amaresh Roy's. A circular is a circular, no matter what exalted quarters it comes from. It is neither a statute nor a statutory instrument. It cannot be either. If instruction (b). Brother Amaresh Roy objects to, is bad, for precisely the same reason, instruction (a), his Lordship does not object to, must go down as bad. Indeed, one instruction goes with the other. In the expression : 'notwithstanding decision of the Supreme Court' the circular uses, I read no disparagement of the Supreme Court. The expression goes with 'other commonwealth countries continuing to honour India's request for the surrender of the fugitive offenders despite such decision.' Then, the circular deals with extraditing fugitive offenders into India, and the decision of the Supreme Court in Menons' case, the circular obviously refers to, deals with extraditing fugitive offenders out of India. Be that as it may, the law, authoriting the Chief Presidency Magistrate to issue the warrant in the manner he has done, is not to be found in the circular which comes nowhere near law. To a court of law, it iswaste paper beneath its notice, as Mr. Dutt contends, and rightly, in my judgment. The Chief Presidency Magistrate, however, did notice it, and worse still, obeyed it. This leads Mr. Mitra to contend that it was not sent to the Chief Presidency Magistrate, but only to the State Government. That, in my judgment, is not the right way to look at the matter. In the first place, the Government of India never communicates such circulars direct to the Chief Presidency Magistrate and others of his rank. So it does, through the respective State Government, for whose archives alone such communications are not meant. In the second place, the Chief Presidency Magistrate himself admits in his letter dated July 30, (forwarding the warrant etc. j, having received the circular, a copy of which he takes care to enclose See paragraph 5 ante. Last, but by no means the least, the relevant file of the High Court, Appellate Side. English Department, Correspondence Branch : File No. IP/10/55, reveals the then Judicial Secretary, Shri K. K. Hojara. I.C.S., forwarding, by letter No. 3516-J, dated June 14, 1955, this very circular to the Registrar Appellate Side, and saying:
'All District Judges. District Officers and the Chief Presidency Magistrate. Calcutta, have been informed direct'
'Hands off the courts' appears to be a good motto for the Governments, whether in the Centre or in the States. 'Follow the law and not an executive circular in matters judicial' appears to be another motto, equally good, for the courts. Again, when the legislature intends that the State Government should make an inroad into the domain of the court by issuing a directive, it knows how to provide for it. Section 189 of the Procedure Code, reviewed in paragraph 14 ante, furnishes an instance. See also Sections 5 and 29 of the Extradition Act, 34 of 1962, a modern legislation, empowering the Central Government to issue directives upon a court. Do you see any such provision of law for the directives the offending circular embodies? You do not. So when the Chief Presidency Magistrate does what the law does not authorize him to do, by sending out the warrant in the manner he has done, plainly his action degenerates itself into a gross illegality, and the invalidity of the warrant, unsupported by any law, becomes self-evident. I hold just that, differing, with respect, from the view taken by Brother Amaresh Roy. And prejudice? What greater prejudice can there be if you deprive More of personal liberty 'except according to procedure established by law', in violation of his fundamental right under article 21 of the Constitution, and bring him here from Hone Kong under arrest, by violating another fundamental right of his : the right to travel abroad and to be at Hong Kong, as is a recent pronouncement of the Supreme Court, not yet come into the reports? With respect. I there-fore see the gravest of prejudice to More, though Brother Amaresh Roy sees none.
25. There is still another consideration, as Mr. Dutt points out, why the learned magistrate could and should not have followed the circular. The procedure, the circular introduces, will receive effect, 'as long as the new Indian Extradition law is not enacted.' That is in the second paragraph of the circular itself. See paragraph 21 ante. But the new extradition law, hinted in the circular, the Extradition Act, 34 of 1962, duly enacted by Parliament, received the assent of the President on September 15, 1962, and came into force on January 5, 1963. See Notification No. G.S.R. 55 dated January 5, 1963, of the Ministry of External Affairs, published in the Gazette of India. Extraordinary, Part II, of that date. And the Chief Presidency Magistrate was dealing with the matter from May 29, 1965, onwards, when the circular, on its own terms, was no more. It, therefore, comes to this : the learned magistrate was following a 'dead' circular, which also he could not do.
26. Now, the question remains : does the new extradition law, the Extradition Act 34 of 1962, authorize the Chief Presidency Magistrate to do what has done? if it does, the 'vice' of following the circular will naturally pale into insignificance. Therefore, let the provisions of the Act, including those referred to at the Bar, be examined, in the context of facts here.
27. A short Act, it consists of 37 sections, spread over 5 chapters, and of two schedules as well. Chapter 1 contains 3 sections, the first of which is the section on 'Short title, extent and commencement'. The second one is the section on definitions. In terms of Clause (a) thereof, read with the first schedule, which lists thirteen countries, alphabetically arranged, as commonwealth countries, United Kingdom being one such and appearing last in the list. Hong Kong, a colony of the United Kingdom, becomes a commonwealth country too. Clause (c) of Section 2 defines 'extradition offence', and schedule 2 enumerates the extradition offences in relation to, amongst others, a commonwealth country. Offences under Sections 420, 467 and 471 of the Penal Code : just the sections under which the case in hand is : are listed there. Another definition which calls notice is the definition of 'notified order' which, under Section 2, Clause (h), means an order notified in the Official Gazette. Such definition is to be read with Section 35 in Chapter V, providing inter alia that every notified order shall, as soon as may be after it is made, laid before each House of Parliament. Section 3, the last section of Chapter 1, has an importance all its own, in that its theme is application of the parent Act. The case before me being what it is, what calls pointed attention is :
'3. (1) The Central Government may, by notified order, direct that the provisions of this Act other than Chapter in shall apply -
X X X X X
(b) to such commonwealth country or part thereof to which Chapter III does not apply; as may be specified in the order.' Chapter III is being notified earlier than Chapter II. because Chapter II deals with extradition of fugitive criminals to, amongst others, commonwealth countries (Hong Kong being one such) to which Chapter III does not apply. Consisting of ten sections : Sections 12 to 21 : Chapter III provides for return of fugitive criminals to commonwealth countries with extradition arrangements. In the very nature of things, this Chapter cannot reach the case in hand which is a case of extraditing More into India from the commonwealth country of Hong Kong, not a case of extraditing somebody out of India: into a commonwealth country, with which alone this chapter deals. That apart there is no extradition arrangement between Hong Kong and India, and necessarily there has not as yet been application of this chapter by notified order, as is the concession of Mr Mitra, here and before my learned brothers too. So, Section 12, by its very terms, rules out the application of this Chapter : Chapter III. Now, come back to Chapter II consisting of eight sections : Sections 4 to 11: and providing for extradition of fugitive criminals to commonwealth countries to which Chapter III does not apply. Chapter [I does no duty here : a case of extraditing More from a commonwealth country into India, just the opposite of what Chapter II provides for. Then is reached Chapter IV, with three sections : Sections 19-21, prescribing the procedure for surrender of an accused from commonwealth countries. Plainly, therefore, the provisions here are the provisions to be invoked for securing the surrender of More from the commonwealth country of Hong Kong. But Section 3, Sub-section (1), Clause (b), I have just reproduced, stands in the way. There is no notified order yet by the Central Government applying Chapter IV to Hong Kong. And what the solemnity of a notified order comes to has been noticed : notification in the Official Gazette and laying it before each House of Parliament. In absence of such notified order, it is not for the Central Government to call in aid Section 19 of Chapter IV and to make a requisition to Hong Kong for surrender of More, as it has done, in fact. And in so far as Brother Amaresh Roy holds the contrary, with great respect, I am unable to agree. The last chapter is Chapter V captioned Miscellaneous and containing sixteen sections : Sections 22-37, of which Section 35 has been noticed already, and of which the remaining sections deserving of notice are -
(i) Section 32 providing that Section 29 (by which the Central Government is empowered to discharge a fugitive criminal in certain circumstances, e. g., on political reasons,) and Section 31 (by which are imposed restrictions on surrender of a fugitive criminal involved, amongst others, in an offence of a political character) shall apply withoutany modification to every commonwealth country, 'notwithstanding anything to the contrary in Section 3 or Section 12';
(ii) Section 36 conferring on the Central Government the power to make rules; and
(iii) Section 37 repealing, among others, the Extradition Act 15 of 1903 and the Fugitive Offenders Act 1881 'dead' already by virtue of the Supreme Court decision in Menons' case supra.
28. Such then is the Extradition Act 34 of 1962 from which the impugned action of the Chief Presidency Magistrate in issuing the warrant in the manner he has done, as also of the Central Government in sending a requisition to Hong Kong on the foot of that warrant, receives not even a soupcon of support. It must, therefore, be held, as is held by Brother Alak Gupta, that there is no legal basis for the requisition made by the Central Government to Hong Kong for surrender of More or for the warrant the Chief Presidency Magistrate had issued on July 30, 1965,--'-a warrant which cannot but be struck down. This is the opinion I deliver on the third main point on which my learned brothers have not agreed.
29. The unreported decision on June 21, 1963, by a division of this court (Debabrata Mookerjee and Das Gupta JJ.) In Panchanan Pal v. State of West Bengal. Criminal Revn. No. 179 of 1963, referred to at the Bar, remains to be noticed. It lays down no law on the point 1 am on now. All it does is to leave it to the magistrate to decide if the Extradition Act 34 of 1962 could be invoked for issuing a warrant for apprehension of Joydeb Pal, son of the petitioner Panchanan Pal, then in the United Kingdom. I, therefore, leave it at that.
30. The fourth and last main point of disagreement between my learned brothers arises in this way Whereas Brother Amaresh Roy sees in what the Central Government did, by sending out a requisition to Hong Kong for the arrest of More, a political act, beyond the purview of law and judicial scrutiny, Brother Alak Gupta hold? that even the Central Government has no power to make the requisition it did untrammelled by the provisions of the Extradition Act, 34 of 1962, by which it is bound.
31. What the Extradition Act 1962 is like has been noticed : paragraph 27 ante. What has not been noticed vet is that it is an Act 'to consolidate and amend the law relating to the extradition of fugitive criminals', as the preamble says. The preamble apart -- and the preamble, it has been said, forms no part of the Act: far less, therefore, the Statement of Objects and Reasons. Mr. Dutt refers me to -- the summary I have made of the Act makes it clear that it is an epitome of the law on extradition into and out of India, all previous laws on the subject having been repealed How therefore, it is open to the Central Government to send a requisition in aid of extradition de hors the Act, as Mr. Mitra submits in support of the view taken by Brother Amaresh Roy, is not clear to me. But I must notice the specific contentions Mr. Mitra raises, though his frank admission is that the Extradition Act 1962 does not help him here.
(i) 'Extradition is the delivery on the part of one State to another of those whom it is desired to deal with for crimes of which they have been accused or convicted and are justiciable in the courts of other States' : article 1149, page 560, Halsbury's Laws of England, volume 16. 3rd edition. This being the definition of extradition, says Mr. Mitra, what is it but a political act? As a definition, it is an immaculate one. But the answer to Mr. Mitra's question lies in the next article of the same magnum opus : article 1150 which bears inter alia :
'The law of England with regard to extradition depends entirely upon statute.' I say just so here. The law of India with, regard to extradition depends entirely upon statute, to wit, the Extradition Act 34 of 1962, above which none can rise; not even the Central Government. Do extradite More into India by all means if you can under the Act. If you cannot, do not touch him even, as in effect is Mr. Dutt's submission, which I accept. The analysis I have made of the Act shows that More is incapable of being touched thereunder.
(ii) What Mr. Mitra quotes from Wheaton's International Law, volume I, 6th edn., cannot carry him far. Suffice it to note the following passage at page 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'
a passage which is completely destructive of the contention that the executive can act de hors the statute. Without statutory authority, the executive here also cannot request another country to seize a citizen and to send him to India.
(iii) Barren too is the reference by Mr. Mitra to article 73 of the Constitution in support of such contention. A clear and solemn law now exists. That law is the Extradition Act 34 of 1962 Sure enough, article 73 does not enable the executive to act against the provisions of such law. Extradition is entry No. 18 in the Union List. So, under article 73, Sub-article (1), Clause (a), the executive power of the Union extends to this matter 'with respect to which Parliament has power to make laws' When, and what, notified orders will be made under the Extradition Act 34 of 1962 is thus a matter within the competence of the executive power of the Union. That is article 73, in so far as it is material here, which gives no blank cheque to the Central Government, in duty bound to conform to the provisions of the Act. AsMr. Dutt submits. Clause (b), Sub-article (1), article 73, touches a political matter which however is not at issue here. It is not even Mr Mttra's case that there is any treaty or agreement between India and Hong Kong. On the contrary, his submission is : there is not.
(iv) Chapter IV of the Extradition Act 34 of 1962 the very chapter which fits the case in hand nicely enough having not been applied to Hong Kong so far by a notified order under Section 3, what you find here, says Mr. Mitra, is vacuum. Tell me then, concludes Mr. Mitra, how I shall apply the Extradition Act 34 of 1962. Such a contention breaks down on the falsity of its premiss. In exercise of the powers conferred by Section 1, Sub-section (3), of the Act, the Central Government has appointed the 5th day of January 1963 as the date on which the Act shall come into force : vide the notification referred to in paragraph 25 ante. And still it has to be held that there is vacuity here Hence, I say that the very premiss upon which Mr, Mitra rests his contention appears to be wrong. Necessarily, therefore, the conclusion he draws appears to be equally wrong. If you do not use the law which is there to be used, the fault is yours, not of the law And then how to apply the Act? it is not for this court to advise a party before it. Still this may be said : Bring out. under Section 3, Sub-section (1), Clause (b), a notified order applying Chapter IV of the Act to the commonwealth country or part thereof, where the fugitive criminal is, -- a notified order which you have not brought out so far, on your own admission, -- notify it in the Official Gazette under Section 2, Clause (h), lay it before each House of Parliament under Section 35, do all else you are required to do under the Act. and then move to extradite the fugitive criminal from that commonwealth country into India Why, this is what you did by notified order No. G.S.R. 56 dated January 5, 1963. about Switzerland, Sweden and U.S.S.R. under Section 3, Sub-section (1), of the Act. See Gazette of India referred to in paragraph 25 ante.
32. My opinion, therefore, is -- and so I record with due deference -- that Brother Alak Gupta's view must prevail over Brother Amaresh Roy's.
33. How Magistrate D. Cons of the Central Magistracy, Hong Kong, has proceeded, treating our mother-land ; the Sovereign Democratic Republic of India, as a British possession, has been noticed : paragraph 7 ante. My learned brothers are agreed, as indeed they have to be that the Hong Kong Magistrate is not amenable to the jurisdiction of this court. What they are not agreed on is the effect of such order of the Magistrate. Whereas Brother Amaresh Roy holds that the view of the Magistrate has taken of the municipal law of his country, namely, the Fugitive Offenders Act, 1881, cannot sully either the sovereignty of India or her honour.
Brother Alak Gupta feels strongly about it and observes:
'I do not know what led the authorities here to think that Hong Kong would make an exception on the case of the petitioner and not apply the Fugitive Offenders Act which is part of Hons Kong's municipal law. What I find stranger is that even after they came to learn that the magistrate at Hong Kong was proceeding under the Fugitive Offenders Act which regards India still as a British Possession, the authorities at this end did not withdraw the request made but chose to follow it up even to this Court. Frankly, I find such conduct inexplicable. It seems to me that Section 3 and Section 35 of the Extradition Act, 1962, were enacted putting a curb on the discretion of the executive Government just to prevent situations as in the present case from arising. What happens in Hong Kong is not my business, but it is my concern to uphold the Constitution and the laws of this Country. The submissions of the learned standing Counsel (disapproving of too much insistence on legal formalities and thereby hampering the attempt to bring the petitioner to justice) seem to me to be an invitation to endorse the breach of the laws and connive at an attempt to undermine the Constitution.'
In the above passage, Brother Gupta makes a point of the request for extradition having not been withdrawn by the authorities at this end when they came to know that the Magistrate at Hong Kong was proceeding under the Fugitive Offenders Act 1881 and thereby treating India as a British possession even in November 1965 -- which, but for a bona fide misconception of law, would rank as an amazing effrontery. The examination, however, of the same file I have gone by in paragraph 7 ante : File No. 15/65, part of the records in the court of the Chief Presidency Magistrate, reveals a feature still more obnoxious. On October 27. 1965 the Commission of India was writing about this to the Colonial Secretary. Hong Kong, a letter (Secret letter No. 7-NGO/65), the penultimate paragraph of which bears inter alia :
'The Government of India seek the extradition of these two persons (of whom the petitioner More is one) under the Fugitive Offenders Act. 1889' (1881?).
Why blame then the Magistrate there, though India is too tall to be humbled by what he says? if our Commissions abroad do not know this little : that the Fugitive Offenders Act 1881, coupling with the Order in Council of 1918, (presumably the very order the Hong Kong Magistrate goes by), was struck down by the Supreme Court on May 19, 1954, as repugnant to the concept of a soverign democratic republic (which is India) and that the Extradition Act 34 of 1962, came into force on January 5. 1963, repealed it too, the least that can be said is that it discloses a sorry state of affairs, which we have little to be proud of but much tobe ashamed of, I share, if I may, with respect, Brother Alak Gupta's indignation about this sort of trifling with our Constitution by those who ought to know better.
34. In sum, my opinion, agreeing with Brother Alak Gupta's, is that this is preeminently a fit case where the rule should be made absolute. Under Section 429 of the Procedure Code, read with Section 439, Sub-section (1), thereof, the case has been laid before me, and the judgment shall follow the opinion I have just delivered. That seen to me to be the plain meaning of Section 429, though, I am aware, there is a conflict of judicial opinion even about it. Indeed, there are authorities both ways. But I cannot make a reference to the Full Bench, as Buckland J. could not in Ishan Chandra Samanta v. Hridoy Krishna Bose. : AIR1925Cal1040 :
'Under sec, 429, Cr. P. C., the third Judge before whom the case is laid is required to deliver his, opinion and the judgment or order shall follow such opinion. That does not enable me to refer the point to the Full Bench.' -
though his Lordship as the third Judge was differing from a division of this court presided over by two Judges. In the circumstances, I do instead what my judicial conscience tells me I should. A,nd my conscience tells me this :
A. The plain language of the enactment says that the case being laid before a third Judge with the divided opinion of two of his colleagues, he shall deliver an opinion of his own. More, the judgment shall follow such opinion.
B. What, therefore, serves as the basis of the judgment is his opinion. Why not then a judgment by him then and there following such opinion?
C. To send the case back to the division of the Court, the two members of which could not agree, -- for such a remit, there is no warrant in Section 429. Is to resort to a barren circuity; the more so, as the division has to render judgment following the opinion of the third Judge. Thus, the Judgment must necessarily be the same, whether delivered by the third Judge then and there or by the division later Referring back to the division will therefore be so jejune. And the circuity will increase if the two differing members of the division court will differ again on some offshoot, as they have differed from time to time, going by the cases some of which the books reveal. Why this needless waste of judge-hours and everybody else's time when the statute does not lay down anything of the kind? it is not difficult to visualise cases where such differences may be interminable. Why then this battledore and shuttlecock between a division court and a third Judge
D. Worse, the Judge whose opinion the third Judge does not share, will have to be a signing party to a judgment which his conscience tells him is not right.
E. No special feature is here as in Section 377 where the order has to be signed by two Judges.
35. In the result, the rule must be, and is hereby made absolute. The warrant of arrest dated July 30, 1965, issued by the Chief Presidency Magistrate, Calcutta, against the petitioner, and all subsequent proceedings taken by him and the other respondents, be quashed.