1. This is a reference by the learned Sessions Judge of Bijapur who submits for the orders of this Court the petition of one Vazirsaheb valad Allisaheb, who prays that he may be tried by the First Class Magistrate of Bijapur for the offence imputed to him under Sections 395 and 109, Indian Penal Code, and may not be sent for trial to the authorities of the Jath State. It appears that in September 1911, the authorities of that State made a requision to the Political Agent, who is also the District Magistrate of Bijapur, for the surrender of Vazirsaheb in reference to this charge. On the 21st September the Political Agent issued a warrant under Section 7 of the Extradition Act (Act XV of 1903.) The accused, however, surrendered of his' own accord and. the warrant was returned unexecuted.
2. Then upon the application of Vazirsaheb the Political Agent issued in his favour a certificate under Section 188 of the Criminal Procedure Code, to the effect that Vazirsaheb should be tried in British India.
3. Subsequently, however, the Jath authorities pressed for the man's surrender, and the Political Agent yielding to that pressure passed his final order in these words :-' As the Chief wishes the case to be tried in his Court it must be tried there.' It is against that order that Vazirsaheb's petition is directed, and the learned Sessions Judge was of opinion that the petition was well founded and should be allowed. I am also of that opinion. No point was taken at the Bar as to this Court's jurisdiction, and we must therefore decide the matter on the assumption that we have jurisdiction. I mention this so that it may be clear that no question of jurisdiction has been argued or determined. The case, as the learned Judge observes, resembles In re Hormusji Nasarwanji (1886) U. Cri. C. 253, in all material particulars, and the Government Pleader conceded that unless he could distinguish that case the decision must go against him. He sought to distinguish it by reason of the rules issued by the Governor-General in exercise of the powers conferred by the Indian (Foreign Jurisdiction) Order in Council, 1902, and by Section 32 of the Indian Extradition Act (XV of 1903). These rules will be found at page 1831, Vol. Ill, of the General Statutory Rules and Orders. Rule 3 provides that ' if the accused person is a British subject, the Political Agent shall, before issuing a warrant under Section 7 of the said Act, consider whether he ought not to certify the case as one suitable for trial in British India.' Relying upon these words Mr. Rao has contended that the Rule in substance provides that if a certificate has to be issued at all by the Political Agent under the first Proviso to Section 188, Criminal Procedure Code, that certificate must be issued before and cannot be issued after a warrant has already gone; in other words, that any certificate issued, as was the certificate here, after the issue of the warrant, is bad in law. I am, however, unable to take that view. It appears to me that the directions or admonitions contained in Rule 3 neither control nor purport to control Section 188, Criminal Procedure Code. I rather read Rule 3 as containing a reminder to Political Agents of their duty to consider the advisability of issuing a certificate prior to issuing any warrant. But I cannot import into this admonition any rule of that a certificate issued after the warrant would be of no effect. It appears to me, therefore, the ground fails upon which In re Hormusji Nasarwanji was sought to be distinguished. It follows that we must abide by that decision and affirm the Sessions Judge's view with the result that Vazirsaheb will be tried by the Magistrate in British India.
4. I agree in this order because I have no doubt whatever that, if we have jurisdiction to make an order at all, that is the right order to make, and I agree that it is a right order to make for the reasons which are given by my learned colleague. Nobody raised the question of jurisdiction and I say nothing about it, but I wish this to be understood that I do not for myself assume that it is certain that we have jurisdiction.