1. The Chief Presidency Magistrate finding himself in difficulties in a case which he had to deal with under the Indian Extradition Act, XV of 1903, has referred certain questions to us which he is empowered to do by section 432 of the Criminal Procedure Code.
2. The questions are four in number, but the one of chief importance arises out of the controversy, to put it briefly, whether a person accused of cheating in the Hyderabad State can be made the subject of a warrant under section 7 of the Indian Extradition Act. If we read the Act by itself, no doubt on the point arises, because cheating is an extradition offence as appears from the Schedule to the Act. But the attention of the Chief Presidency Magistrate was called to the Extradition Treaties between the Governor General of British India and the Hyderabad State, and having read the Treaties and referred to Section 18 of the Act, a doubt did arise in his mind. It was this : Cheating is an extradition offence under the Act, but it is not one of those offences for which extradition is provided by the Treaty. Section 18 says that nothing in the Act is to derogate from the provisions of the Treaty. The argument then proceeds : if we extradite under the Act for an offence not mentioned in the Treaty, we are derogating from the provisions of the Treaty. That, to my mind, quite clearly is an argument based on the assumption that because the Treaty provides that there may be or shall be extradition in certain cases, it implies that there shall not be extradition in other cases. I can say this after listening to the arguments and after much discussion: that there is no other logical basis for the contention. For the Treaty itself does not say that there shall not be extradition in other cases, and therefore if it means that, it means it not by what it says but by what it implies. I do not wish for a moment to be understood as meaning that there may not be great force in that way of putting the case. But we have to determine whether or not the Treaty does imply that there should be no extradition except in the matter of offences named in the Treaty. And though there may be force in the argument urged by Mr Thakor, it seems to me there is a great deal more force in the argument urged on the other side. When analysed and reduced to the smallest possible compass, it really comes to this, whether extraditing under the Act for an offence not mentioned in the Treaty derogates from the provisions of the Treaty, and we have to consider what the word 'derogate' means. Now it certainly does not derogate from the express provisions. Therefore again we are reduced to a consideration whether it derogates from the implied provisions or rather whether there are implied provisions of the kind asserted. So that we are practically reduced to the first argument over again. I cannot think that it is implied in the Treaty that there cannot be extradition for offences not mentioned in the Treaty. Principally for this reason: if we imply it, we imply that the British Government by making a Treaty with a Native State deprived itself of the power to legislate regarding a matter which fell within its own legislative power, i. e.. a matter of arresting persons who are supposed to have committed certain offences in Native States. The power of making such arrests is essential where there is an Extradition Treaty and it may be very desirable where extradition is or can be arranged for otherwise than by treaty. I cannot think that the Government intended by this treaty to deprive itself of the power to legislate for the purpose of facilitating extradition which could be arranged for otherwise than by treaty. To imply this seems to me to imply what I cannot think the Government wished to do : what there was no necessity for doing, and what on the whole it seems to me would be unreasonable to do. In arriving at this conclusion I am influenced by the nature of the relations between the Government of India and Native States. I do not assert that the same conclusion would be reached if the parties to the Treaty were on both sides Independent Sovereign States. I have, therefore, no difficulty in my own mind in answering the first question put by the learned Chief Presidency Magistrate which is:-
Whether in view of Section 18 of the Indian Extradition Act, XV of 1903, the offence of cheating is an extradition offence so far as British India and Hyderabad State are concerned, notwithstanding its omission from Article IV of the Treaty dated the 8th May 1867 between the British Government and Hyderabad State
3. My answer is that the offence of cheating is an extradition offence so far as British India is concerned notwithstanding its omission from Article IV of the Treaty. Whether it is an extradition offence so far as the Hyderabad State is concerned. I really do not know, and for the purposes of this case it is quite immaterial to consider.
4. Questions 2 and 3 do not seem to me to need an answer for the purposes of this reference.
5. Question 4, to put it briefly, is whether the Magistrate has power to admit an arrested person to bail apart from the provisions of Sections 8 and 8A of the Act. I think he has no such power. The Act directs that the person, when arrested, shall, 'unless released in accordance with the provisions of this Act,' be forwarded to the place and delivered to the person or authority indicated in the warrant. Then by clause 2 of Section 7 and by clause 1 of the same section it is provided that the Magistrate shall act in pursuance of the warrant. If he does these things, it is not open to him to act under ,Section 496 of the Criminal Procedure Code and to admit to bail otherwise than is provided in the Indian Extradition Act, and as the provisions in the Indian Extradition Act are so specific and so clear, there is in my mind no doubt that they override the provisions of Section 496 of the Criminal Procedure Code, and I would answer question 4 accordingly.
6. I concur. The main question to be answered is whether cheating is an extradition offence notwithstanding its omission from Articles III and IV of the Treaty with the Hyderadad State and in view of the provisions of Section 18 of the Indian Extradition Act, XV of 1903.
7. The question must, in my opinion, be answered in the affirmative. The effect of Articles III and IV of the Treaty referred to in this reference amounts to this that the surrender of a person charged with cheating shall not be a bounden duty of the British Government, and it seems to me important to note that the Articles do not provide that such an offender shall not in any case be surrendered by the British Government. On the other hand, the Chief Presidency Magistrate is bound to surrender such an offender in accordance with the Schedule of the Indian Extradition Act if the case is not covered by the provisions of Section 18 of the Act. The provision there is that nothing shall be held to derogate from the provisions of the Extradition Treaty, and it has been argued that it would derogate from the Treaty, to add to it the offence of cheating. That argument, however, does not commend itself to me as a reasonable interpretation of the words used. If it had been the intention to exclude the addition of any offence, then the word 'derogator 'take away from' could hardly have been used. In its place would have been; substituted some such word as 'modify'. So that, in my opinion, there cannot be said, upon a plain interpretation of the words ' used, to be any derogation from the provisions of the Treaty by the insertion of the offence of cheating in the Schedule of the Indian Extradition Act. It could only, in my opinion, be argued in a strained sense that there would be derogation by regarding the provisions of the Treaty as conferring some kind of freedom from liability to surrender a person accused of cheating upon the British Government. But even that argument could not be supported, because entire freedom of action is reserved to the British Government by the provisions of Section 15 of the Act which could not, in any sense, be held to be a derogation from the provisions of the Treaty under Section 18 of the Act.
8. The subsidiary question referred to us is whether bail could be allowed under the ordinary provisions of the Criminal Procedure Code not with standing the special provisions of Sections 8 and 8A of the Act. It seems to me that that question must clearly be answered in the negative. The Criminal Procedure Code is a general Act and it is specially provided in the Indian Extradition Act that the accused person, when arrested, shall be forwarded to the authority indicated in the warrant unless released in accordance with the provisions of this Act. That seems to me clearly a provision that the accused person must not be released in accordance with the provisions of any other Act, and the only provisions for his release on bail are those provided in Sections 8 and 8A of the Act. The general provisions of the Criminal Procedure Code must, in this matter, yield, according to the well-known rule, to the special provisions of the Indian Extradition Act.