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israr HusaIn Vs. Emperor - Court Judgment

LegalCrystal Citation
Subject Criminal
CourtAllahabad
Decided On
Reported inAIR1939All730
Appellantisrar Husain
RespondentEmperor
Excerpt:
- - it is contended that the failure to follow that procedure which was mandatory renders the warrant illegal and invalid and hence this court can in the exercise of its powers under section 491, criminal p. , remains untouched by the extradition act, and the high court is entitled to enquire into the question whether a person arrested under an extradition warrant was illegally or improperly detained in public or private custody, and if the high court is satisfied that he was so detained, to order that he be set at liberty......husain who has been arrested by the district magistrate of basti under a warrant issued by the political agent of bhopal in accordance with section 7, extradition act, (act no. 15 of 1903). the applicant was until 11th may 1938 in the service of the bhopal state as a nazir and it appears that the state has preferred a charge against him under section 409, i.p.c., which id the law of that state also. an offence under section 409, i.p.c., is an extraditable offence within the meaning of section 7, extradition act, inasmuch it is one of the offences mentioned in schedule 1 to the act. it is not alleged that the applicant is not a person against whom a warrant can be issued under section 7, extradition act. nor is there any allegation that there is any formal defect in the warrant.....
Judgment:
ORDER

Mulla, J.

1. This is an application under Section 491, Criminal P.C., by one Israr Husain who has been arrested by the District Magistrate of Basti under a warrant issued by the Political Agent of Bhopal in accordance with Section 7, Extradition Act, (Act No. 15 of 1903). The applicant was until 11th May 1938 in the service of the Bhopal State as a Nazir and it appears that the State has preferred a charge against him under Section 409, I.P.C., which id the law of that State also. An offence under Section 409, I.P.C., is an extraditable offence within the meaning of Section 7, Extradition Act, inasmuch it is one of the offences mentioned in Schedule 1 to the Act. It is not alleged that the applicant is not a person against whom a warrant can be issued under Section 7, Extradition Act. Nor is there any allegation that there is any formal defect in the warrant itself. The whole basis of the present application is the allegation that the Political Agent before issuing the warrant in question did not observe the procedure laid down in the rules framed by the Governor-General in Council under Section 22, Extradition Act. It is contended that the failure to follow that procedure which was mandatory renders the warrant illegal and invalid and hence this Court can in the exercise of its powers under Section 491, Criminal P.C., hold that the applicant is being detained in unlawful custody and can set him at liberty. I have carefully considered this contention but I find no force in it. It is true that there is no material before this Court to show that the Political Agent followed the necessary procedure before issuing the warrant in question but that does not by any means lead to the conclusion that the procedure was not followed at all. It is quite impossible for this Court to hold merely on 4he basis of the applicant's allegation that the procedure required under the rules was not followed by the Political Agent before issuing the warrant in question. Again, I am strongly oi the opinion that the powers of this Court, under Section 491, Criminal P.C., are limited and they do not authorize this Court to enter as it were upon an enquiry into the conduct of the Political Agent. What the applicant wants this Court to do is to investigate into the proceedings of the Political Agent, but in my opinion this Court has no power to make any such investigation under Section 491, Criminal P.C., All that this Court is concerned with while exercising its power under Section 491, Criminal P.C., is to see that the authority under which a person is being detained is on the face of it legal and valid. If there are any formal defects in the warrant under which the applicant is arrested this Court can certainly take notice of them and can upon that basis hold that the warrant is on the face of it invalid. It would necessarily follow in that event that the detention of the applicant was unlawful, but in my view this is the limit beyond which this Court cannot go in the exercise of its power under Section 491, Criminal P.C. I find that the view which I have taken is supported by several decisions of other Courts, for example, Baijnath v. Emperor (1931) 18 A.I.R. Oudh 394, Jamna v. Emperor (1926) 13 A.I.R. Sind 126 and Giyan Chand v. Emperor (1909) 3 P.R. 1909 Cr. The learned Counsel for the applicant has relied upon the decision of a Bench of this Court in Sandal Singh v. District Magistrate and Superintendent Dehra Dun : AIR1934All148 . In that oase ill was held that

the power of the High Court however to interfere under Section 491, Criminal P.C., remains untouched by the Extradition Act, and the High Court is entitled to enquire into the question whether a person arrested under an extradition warrant was illegally or improperly detained in public or private custody, and if the High Court is satisfied that he was so detained, to order that he be set at liberty.

2. A close examination of the decision will show that the point which arose for consideration in that case was that one of the three conditions precedent for the issue of a legal warrant under Section 7, Extradition Act, had not been fulfilled and this Court decided that it had the power to hold that in the absence of that condition precedent the Political Agent had no authority to issue a warrant under Section 7, Extradition Act. I do not find any conflict at all between that decision and the view which I have taken in the present case. There was no question raised in that case that the Political Agent had not followed the rules and in consequence thereof the warrant issued by him was invalid. It does not afford any authority for the proposition that this Court can enter upon an enquiry into the conduct of the Political Agent before issuing a warrant of arrest under Section 7, Extradition Act. The result therefore is that I see no reason to interfere and dismiss this application. The stay order is discharged and the District Magistrate of Basti can now proceed to execute the warrant in accordance with the law.


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