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Narmada Prasad Vs. Rex - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad High Court
Decided On
Case NumberCriminal Revn. No. 1742 of 1949
Judge
Reported inAIR1952All451
ActsIndian Extradition Act, 1903 - Sections 22
AppellantNarmada Prasad
RespondentRex
Appellant AdvocateS.C. Khare, ;G.N. Kunzru, ;Amarnath Kaul, ;N.N. Mukerji and ;R.N. Basu, Advs.
Respondent AdvocateD.P. Uniyal, Adv.
DispositionApplication dismissed
Excerpt:
.....22 of indian extradition act, 1903 - absence of extradition proceeding - magistrate cannot endorse search warrant. - - this warrantwas endorsed by the regional commissioner of vindhya pradesh. it was brought to the district magistrate of allahabad who, in his turn endorsed it forwardint the same to the senior superintendent of police, allahabad. ' 5. it is at onece obvious from a perusal of thisrule that before a magistrate in british india can issue a search warrant or endorse a search warrant issued by a magistrate in a state like the vindhya pradesh, there must be before him some proceeding against some person for extradition under the indian extradition act. but if no suchproceedings are pending, a magistrate in british india has no jurisdiction either to issue a search warrant..........fact that the search has actually takenplace already and the documents have beenhanded over to the rewa police and taken awayto rewa. it seems to me, therefore, that asextradition proceedings are now pending and theillegal action which was taken on 27th october 1949, can now be legally taken it is not worthwhile interfering in revision. it would, however,be enough to indicate what, i thinks, should bedone in the two eventualities which are likely to occur. if the provincial government decides toextradite the applicant, no further action wouldbe necessary and the documents seized will remain in rewa. if, on the other hand, the provincial government decides not to extradite theapplicant, i trust, the district magistrate allahabad will use his good offices to get back the documents from.....
Judgment:
ORDER

Wanchoo, J.

1. This is a revision by Sardar Narmada Prasad Singh in connection with a searth which took place at his house on 27th october 1949.

2. The facts are that the District Magistrate of Rewa, Vindhya Pradesh, issued a searchwarrant under s. 96, Criminal P.C. This warrantwas endorsed by the Regional Commissioner of Vindhya Pradesh. It was brought to the District Magistrate of Allahabad who, in his turn endorsed it forwardint the same to the Senior Superintendent of police, Allahabad. The warrant was for the search of the premises of the aplicant in connection with an alleged offence under s. 409,Penal Code, committed by him in Vindhya Pradesh. Thereupon, the house of the applicant was searched in the presence of a magistrate of Allahabad, a deputy Superintendent of Police of these provinces and the Superintendent of Policeof Vindhya Pradesh and certain documents belongingto the applicant were seized and handed over to the Superintendent of Police, Rewa.These documents have been taken to Rewa.

3. The contention, on behalf of the applicant, is that the search warrant issued by the District Magistrate of Rewa could not be served in Allahabad and the District Magistrate of Allahabad had no jurisdiction to endorse it, so that the search of his premises might be effected by theSuperintendent of Police, Rewa, with the help of a magistrate and a Deputy Superintendent of Police of Allahabad. It was there prayed that it be declared that the action of the District Magistrate of Allahabad was without jurisdiction and that he should be ordered to return the documents, seized from the possession of applicant,to him.

4. The only provision under which the applicant's house could be searched and documents seized there from on a warrant issued by a court in Rewa is under Section 2, Extradition Act, No. 15of 1903. Sub-section 2(b) of that section provides that:

'The Governor General-in-council may make rules to carry out the purposes of this Act: 2 (b) the seizure and disposition of any property whichis the subeject of, or required for proof of, any alleged offence to which this Act applies.

A rule has been framed under this sub-section which is as follow:

'In any proceedings against any person under the provisions of the Indian Extradition Act, 1903, or ofany treaty for the extradition of offenders, the Magistrate, acting in such proceedings and any police officer authorised to arrest such person under the provisionsof the said Act or of such treaty, may exercise in anyplace in British India in respect of any property in the possession of such person or of any other person whichappears to such Magistrate of police officer to have beenthe subject of or to be required for proof of the offence in respect of which the proceedings are being taken, thepowers respectively of a Court and of an officer in chargeof a police staton under the code of Criminal Procedure1898, as if such property were property the production of which is necesssary for the purposes of any investigation or trial under the said code by or before such Courtor officer; and the provisions of the said Code, so far asthey can be made applicable, shall apply to any summons or warrant issued in pursuance of this rule and to any search made under the authority of any warrant soissued and to the disposal of any property seized in any such search.'

5. It is at onece obvious from a perusal of thisrule that before a Magistrate in British India can issue a search warrant or endorse a search warrant issued by a Magistrate in a State like the Vindhya Pradesh, there must be before him some proceeding against some person for extradition under the indian Extradition Act. A Magistrate in British India gets jurisdiction onlywhen extraditon proceedings are pending before him against any person. This is clear from thewords 'the Magistrate, acting in such proceedings'in the rule quoted above. If such proceedingsare pending, a Magistrate in British India would have power to exercise all the powersprovided in the Code of Criminal Procedure forproduction of property including, of course, thepower to issue a search warrant. But if no suchproceedings are pending, a Magistrate in British India has no jurisdiction either to issue a search warrant himself or to endorse a search warrantissued by a Magistrate of a State like the VindhyaPradesh. It is admitted on behalf of the Crown, that no extradition proceedings against, the applicantor anybody else were pending before theDistrict Magistrate of Allahabad on 27th october1949 in the course of which the warrant wasendorsed by the District magistrate of Allahabad.Under these circumstances, the District, Magistrate of Allahabad had no jurisdiction on thatdate to endorse this warrant for search of thehouse of the applicant. The search, thereforewhich took place on that date was illegal andthose who conducted it had no authority toremove anything from the house of the applicant.

6. I am, however, told that after 27th october 1949 a warrant was received from the Vindhya Pradesh under s. 7, Extradition Act, and thematter has been referred to the Provincial government under s. SA. So extradition proceedingsare now pending against the applicant and if thesearch had taken place after the receipt of thewarrant under s. 7 by the District Magistrate of Allahabad the applicant could not have taken an objection to it. The question then arises as towhat order should b e passed under the circumstances as they exist now. There is also thefurther fact that the search has actually takenplace already and the documents have beenhanded over to the rewa Police and taken awayto Rewa. It seems to me, therefore, that asextradition proceedings are now pending and theillegal action which was taken on 27th october 1949, can now be legally taken it is not worthwhile interfering in revision. It would, however,be enough to indicate what, I thinks, should bedone in the two eventualities which are likely to occur. If the Provincial Government decides toextradite the applicant, no further action wouldbe necessary and the documents seized will remain in Rewa. If, on the other hand, the Provincial Government decides not to extradite theapplicant, I trust, the District Magistrate Allahabad will use his good offices to get back the documents from Rewa and restore them to the applicant.

7. With the above remarks the revision is, hereby, dismissed.


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