1. The sole point before us is whether the learned Magistrate was right in thinking that the application of the accused for bail could not be entertained by him as he was 'directed to retain the accused in custody pending the extradition proceedings as per Ex. A.' The proceedings in question against the accused are under the Indian Extradition Ant, XV nf 1903 in respect of an alleged criminal breach of trust committed in the State of Indore, With the facts of that case we are not now concerned, and many of this allegations in the petition before us are for present purposes wholly irrelevant.
2. It is said that the accused has been arrested without an order from the Magistrate and without a warrant in pursuance of the provisions of Section 54(7) of the Criminal Procedure Code. Consequently Section 23 of the Indian Extradition Act 1903 applies under which such a person 'may, under the orders of a Magistrate within the local limits of whose jurisdiction such arrest was made, be detained in the same manner_iind subject to the same restrictions as a person arrested on a warrant issued by such Magistrate under Section 10.' Then if one turns to Section 10, it gives power to a Magistrate to issue a warrant of arrest in certain cases, and than enacts in Sub-section (4) that 'in the case of a person arrested or detained under this section, the provisions of the Code of Criminal Procedure for the time being in force relating to bail shall apply in the same manner as if such person were accused of committing in British India the offence with which he is charged.' In other words Sub-section 23 and 10 (4) enable the Magistrate to grant bail.
3. It is accordingly important to bear in mind that this is not a case under Section 3 where a requisition has been made to the Government of India or to any local Government by the Government of any Foreign State for the surrender of a fugitive criminal of that State. In such a case Section 3, Sub-section (5), provides for bail 'if the Magistrate is of opinion that a prima facie case is not made out in support of the requisition, or if the case is one which is bailable under the provisions of the Code of Criminal Procedure.'
4. The learned Magistrate appears to have been of opinion that because the telegrams or letters from the District Magistrate of Indore asked him to detain the accused in custody, therefore he could not entertain any application for bail. But we think, having regard to the sections which I have just alluded to, and in particular to Section 10(4), that the learned Magistrate had jurisdiction to entertain an application for bail.
5. Accordingly we think that the proper course is to regime the application for bail to the learned Magistrate with the above intimation of our opinion as to his legal powers. It will be then for him to consider the application for bail on its merits.
6. The matter being urgent we will direct the Registrar to forward the papers to the Magistrate with all convenient speed and if possible today.
7. I concur. I would only add that, as the petitioner was arrested in the City of Bombay, it may be said that he was not arrested in pursuance of the provisions of Section 54, Clause (7), of the Criminal Procedure Code of 1898 within the meaning of Section 23 of the Indian Extradition Act XV of 1903. Under Section 1 of the Criminal Procedure Code that particular Section 54 does not extend to the police in the town of Bombay. The accused was, therefore, really arrested without a warrant in pursuance of the powers given by Section 33, Clause (g), of the Bombay City Police Act, 1902. That section reproduces practically word for word the provisions of Section 54, and Clause (g) that I have referred to is exactly in the same words as Clause (7) of Section 54 of the Code.
8. It is probable that the fact of Section 54 of the Code not applying to the town of Bombay was overlooked by the Legislature when the Indian Extradition Act XV of 1903 was passed. And under the general rule of interpreting a statute when possible, so as to give effect to its intent and spirit, I think we are clearly justified in holding that Section 23 of the Indian Extradition Act covers the case of an arrest under Section 33, Clause (g), of the Bombay City Police Act.