1. The petitioner claims to be a British Subject and a citizen of the United Kingdom. He also claims to hold a passport issued by Colony and Protectorate of Kenya in Africa under the British Crown.
2. In the year 1960 the petitioner was in Nairobi in Kenya. He left the continent of Africa from the port of Mombasa on January 3, 1961 to come to India. It appears that after the petitioner's departure from Kenya, a criminal complaint was filed against the petitioner for an alleged offence under Section 308 of the Penal Code in force in Kenya for obtaining, between December 30, 1960 and January 2, 1961, goods by false pretence fromvarious merchants in Nairobi. These offences werealleged to have been committed within the jurisdiction of the Resident Magistrate's Court at Nairobi,It is not necessary to go into the details of allegations made against the petitioner in this writ application. It will be sufficient to state that the allegation was that the petitioner deposited 20 Shillingsin The Standard Bank of South Africa, Nairobi,and obtained a cheque book from that Bank. Between December 30, 1960 and January 2, 1961, itis alleged that the petitioner visited various shopsin Nairobi and obtained diverse goods of differentdescriptions from the shop-owners passing in theirfavour 16 different cheques. The goods which he,the petitioner, is thus alleged to have been obtainedwere of the value of 5123 Shillings. It is allegedthat these cheques were not honoured. In thesecircumstances, the complaint as mentioned abovewas filed against the petitioner in the Court of theResident Magistrate at Nairobi.
3. After the petitioner reached India, a requisition was made by the Government of Kenya to the Union of India for the surrender of the petitioner on the ground that the petitioner was a fugitive criminal. A non-bailable warrant was issu-ed as a result of this requisition. On August 24, 1961, the petitioner was arrested. The Joint Civil Judge (Junior Division) and Judicial Magistrate, First Class at Borsad was ordered to inquire into the matter. The learned Magistrate held an inquiry under Section 9 read with Section 3 of the Indian Extradition Act, 1903, and Section 207 of the Code of Criminal Procedure of India. At the inquiry before the learned Magistrate, the charge against the petitioner was read over and explained to him. The petitioner made an oral statement in the Court. The petitioner's defence was that he had no knowledge about the state of his account with The Standard Bank of South Africa, that he expected moneys to arrive which he intended to deposit into the account but as moneys unfortunately did not arrive in time, the cheques may have been dishonoured. He stated that he had instructed his relatives at Nairobi to make all payments to merchants at Nairobi but then he had no idea whether the payments were, in fact, made. Ho denied having committed any offence. The learned Magistrate raised the following two points for determination in the case:
(1) Whether the Magistrate's Court was competent to hold the inquiry under Section 9 read with Section 3 of the Indian Extradition Act?
(2) Whether a prima facie case was made out to support the requisition and whether the petitioner should be committed to stand his trial at the Resident Magistrate's Court at Nairobi for an offence under Section 308 of the Penal Code in force at Kenya?
After holding an inquiry and recording such evidence as was led before him, the learned Magistrate came to the conclusion that both these points for determination should be answered in the affirmative. He accordingly committed the petitioner to prison under Section 9 read with Section 3(4) ot the Indian Extradition Act to await the orders ot the Central Government for his extradition to Kenya to stand his trial for an offence under Section 308 of the indian Penal Code in the Resident Magistrate's Court at Nairobi. This order was passed on August 28. 1961. The petitioner was sent to prison and was subsequently, on October 5, 1961, released on bail by the learned Magistrate. The petitioner made various representations to the Central Government, but with these representations we are not concerned for the determination of the point arising before us.
4. The petitioner filed a petition under Section 10 of the Indian Extradition Act which was admitted by this High Court and a rule was issued thereon on March 19, 1962. This petition came on for hearing on September 7, 1962, on which date, on an application made by the petitioner, the petitioner was permitted to withdraw the same. The petitioner thereafter filed this petition on September 12, 1962. This petition was filed against (1) The Union of India, (2) State of Gujarat, (3) Shri J. D. Nagarwala, Inspector General of Police, State of Gujarat, Ahmedabad, (4) Shri C. M. Mudi-liar. D. S. P. Kaira, and (5) Shri M. M. Modha, Joint Civil Judge, Junior Division, and Judicial Magistrate, First Class, Borsad, who have been impleaded as opponents Nos. 1 to 5 respectively. At the hearing of this petition, Mr. Thakore, the learned advocate appearing on behalf of the peti-tioner, applied that opponents Nos. 1, 3 and 4 may be deleted as opponents in this petition and accordingly their names as opponents have been deleted from the record.
5. Now, the relief which the petitioner has claimed in this petition is that this Court should, under its powers under Articles 226 and 227 of the Constitution of India, issue an appropriate writ, order or direction quashing the order of the learned Magistrate passed on August 28, 1961 as aforesaid and to direct the opponents not to take any action against the petitioner. There are also other reliefs which are prayed for, but those reliefs were only pending the hearing and final decision of the petition and we are, therefore, not concerned at this stage with those other reliefs. We have only to determine whether the petitioner is entitled to a writ quashing the order passed by the learned Judicial Magistrate against him or to any other writ, direction or order.
6. Before we deal with the contentions raised before us on behalf of the petitioner, it will be necessary for us to examine the relevant provisions of law in relation to the extradition of fugitive criminals because action is taken against the petitioner under Section 9 read with Section 3 of the Indian Extradition Act, 1903, on a requisition made by the Government of Kenya to the Union of India for the surrender of the petitioner on the ground of his being a fugitive criminal.
7. In 1903 the Indian Legislature enacted the Indian Extradition Act being Act No. 15 of 1903 (which is hereinafter referred to as the 'Indian Act'). In the preamble of this Indian Act it was stated that it was enacted as it was expedient to provide for the more convenient administration in British India of the Extradition Acts, 1870 and 1873, and of the Fugitive Offenders Act, 1881, as also that it was expedient to amend the law relating to the extradition of criminals in cases to which the Extradition Acts, 1870 and 1873, did not apply. All these three Acts are Acts passed by the British Parliament. Section 2 of the Indian Act defines 'Foreign State' and it is stated that the word 'Foreign State' used in the Indian Act, unless there was anything repugnant in the subject or context, would mean a State to which, for the time being, the Extradition Acts, 1870 and 1873, apply. Chapter II of this Act deals with the surrender of fugitive criminals in case of Foreign States being Foreign States defined in the Indian Act. We will presently refer in detail to the relevant provisions, but it will be sufficient to stale that the words 'Foreign States' mentioned in Chapter II, will be States in respect of which Orders-in-Council may have been passed by the British Sovereign under Section 2 of the Extradition Act, 1870, directing that 'such Act' shall apply in case of such Foreign States. This would be in States where orders in Council under Section 2 of that Act may have been passed. Such orders-in-council would be passed where arrangements may have been made between the British Government and such Foreign State with respect to surrender of fugitive criminals. In other words, the Foreign States would mean the States with which there may have been treaty obligations in connection with fugitive criminals between the British Government and such Foreign Stale. For the sake of convenience, we will refer to such Foreign States as the 'Treaty States'. Chapter II concerns itself with the procedure for the extradition for and surrender of fugitive criminals to the. Treaty States,
8. The next Chapter is Chapter III which deals with the surrender of fugitive criminals in case of requisitions by states other than Foreign States, that is, other than the Treaty. States. Action in the instant case is taken under Section 9 which is a section in this Chapter. Section 9, as it originally stood, provided as follows:
'Where a requisition is made to the Government of India or to any Local Government by or on behalf of any State not being a Foreign State, for the surrender of any person accused of having committed an offence in the territories of such State, such requisition shall .....
be dealt with in accordance with the procedure prescribed by Section 3 for requisitions made by the Government of any Foreign State as if it were a requisition made by any such Government under that section.
Provided that, if there is a Political Agent in or for any such State, the requisition shall be made through such Political Agent.'
There have been various amendments to the section and Section 9 as it reads to-day is as follows:
'Where a requisition is made to the Central Government by or on behalf of any State outside India not being a Foreign State, for the surrender of any person accused of having committed an offence in the territories of such State, such requisition shall ..... be dealt with in accordance with
the procedure prescribed by Section 3 for requisitions made by the Government of any Foreign State as if it were a requisition made by any such Government under that section:
Provided that, if there is a Political Agent in or for any such State, the requisition shall be made through such Political Agent.'
The section as it reads now, therefore, touches all States, outside India, not being Foreign States, that is to say, not being Treaty States. In other words, the section as it reads, would touch all non-treaty States outside India. Section 18 in this Chapter provides that nothing in it should derogate from the provisions of any treaty for the extradition of offenders, and the procedure provided by any such treaty should be followed in any case to which it applies, and the provisions of this Act should be read modified accordingly. Then there is Chapter IV. This Chapter is headed 'Rendition of Fugitive Offenders in His Majesty's Dominions'. It consists of only one section and it provides that for the purpose of applying and carrying into eflect in British India the provisions of the Fugitive Offenders Act, 1881, art enactment of the British Parliament, the provisions set out herein were made for the due administration of that Act in British India. These provisions are that the powers conferred on 'Governors' of British possessions should be read as powers of the Central Government, that the powers conferred on a 'Superior Court' should be exercised by any Judge of the High Court, that the powers conferred On a 'Magistrate' should be exercised by any Magistrate of the First Class or by any Magistrate empowered by the Central Government in that behalf and lastly that offences committed in British India to which the Act applied were piracy, treason and any offence punishable under the Indian Penal Code with rigorous imprisonment for a term of twelve months or more or with any greater punishment. Chapter V deals with offences committed at sea and Chapter VI deals with execution of commissions issued by criminal Courts 'outside British India' under the provision as it stood before the enactment and 'outside the States' after its amendment. Chapter VII contains certain supplemental provisions for effectively carrying out the purposes of the Act. The, scheme of the Indian Act, as it was prior to the coming into force of the Constitution of India, appears to us to provide for extradition of fugitive criminals wherever found outside the territories' of British India. Chapter II provided for extradition of fugitive criminals who may have committed offences in the Treaty States and were found in British India. Chapter IV provided for extradition of fugitive criminals who may have committed offences in any other part of His Majesty's dominions and were found in British India. Chapter III dealt with the extradition of fugitive criminals who may have committed offences in any State not being a foreign State and were found in British India. In other words, the territories of the world for the purposes of the Indian Act were divided into 3 categories (I) the territories of the Treaty States, (2) the territories of any part of the British possessions, (3) the territories of all other States not being foreign States. Ordinarily, there being no question of treaties within the territories of the British Possessions, these territories were dealt with as a separate category not falling either in the Treaty States or other States not being Treaty States. It further appears to us, having regard to the peculiar position of the then native States visa-vis the British Crown, they were included in the third category. This appears to us to have been the scheme of the Indian Act as enacted. We will at !he relevant places. consider the effect of the coming into force of the Constitution of India, and the changes in the relevant sections.
9. Now, the first contention raised by Mr. Thakore was that Section 9 applied only to what were known as 'native states' which were, on the introduction of the Constitution of India, merged in the territories of the Union of India. According to him, now that the native states were merged, this section was a dead letter on the statute book. In support of his contention he relied on the word 'Political Agent' in the proviso and argued that no Political Agents existed in the case of non-native states and that, therefore, the section could only apply to native states. There is no substance whatever in this contention. Reading the section as it originally stood, the reference was to a requisition made 'by or on behalf of any State not being a Foreign State' i.e., a Treaty State. There is nothing to indicate in this classification mentioned by us above that this category should be limited only to native States in India and not any other State which did not fall in the first category. In fact, in Gulli Sahu v. Emperor, ILR 42 Cal 793 : (AIR 1915 Cal 426), the question arose whether Nepal was a 'Foreign State' within the meaning of the Indian Act. Nepal was admittedly an independent State. It appears that there were no treaty obligations in relation to fugitive criminals between the British Sovereign and Nepal and hence Nepal was not one of the States in respect of which an Order-in-Council could or was passed under Section 2 of the Extradition Act, 1870. That being the position Nepal could not be said to be a Foreign State within the meaning of the definition of a 'Foreign State' in Section 2(c) of the Indian Act. It was held by a Division Bench consisting of Jenkins C.J., and Teunon, J. that Nepal was a State which was other than a Foreign State within the meaning of Section 2(c) of the Indian Act and that being so, it was Chapter III of the Indian Act which was applicable m the case of Nepal. This decision clearly indicates that Section 9 even as it originally stood was construed as not intended to apply merely to' what were -known as 'native states'. It was intended to apply to all states which were not 'Foreign States' within the meaning of Section 2(c) of the Indian Act. These states need not necessarily have been only native states but all states anywhere in the world which did not fall in the first category of 'Foreign States' and, of course, not being a part of the Dominions of His Majesty the King of England, for which there was a specific provision. As we already explained, the territories of the erstwhile native states having merged, the native states as such ceased to exist in India. By reason, of this merger, it was no longer necessary to have any extradition processes within the territories of India itself as there already existed the necessary processes within the states forming the Indian Union. The changed circumstances indicated an amendment to this section, and to this end the words 'outside India' were, amongst other things, added after the words 'any state' by A.O., 1950. The effect of this amendment was that, all the states in India were taken out from the applicability of this section. The section now applies, therefore, to any state outside India and the only category which is excepted from these states out-side India is the category of those states which are defined as 'Foreign States' by Section 2(c) of the Indian Act. Even on a plain reading of the section as it stands to-day, any such construction as is suggested by Mr. Thakore is ruled out. The section, as it stands to-day, contemplates the requisition made by any state outside India not being a Foreign State. Now, no state outside India could be said to be a 'native state'. Where was then the necessity of deliberately adding the words 'outside India' to this section when the 'native states' had ceased to exist? It appears to us to be abundantly clear that to efface the anomaly created, these words were added and other necessary changes were made in this section. It is equally clear that the section, even as it stood, could not have been just applicable to native states. It is impossible to hold that the amended section is but a dead letter on the statute book.
10. Mr. Thakore pressed into service the proviso to Section 9 in support of his contention. This proviso provides: 'Provided that, if there is a Political Agent in or for any such State, the requisition shall be made through such Political Agent.' Mr. Thakore submitted that only the former native states had political agents and the reference in this proviso to political agents was clear indication of the fact that the proviso could only refer to the former native states. According to him, this further demonstrated that this section as well as the proviso were a dead letter on the statute book. Our attention was not drawn to anything to show nor was any material placed before us by Mr. Thakore to enable us to hold that there were not or are not in India any political agents of states other than native states. The proviso is applicable only 'if there is a political agent' and j there is nothing to prevent the proviso being applicable to other states if they have a political agent. The proviso is, therefore, a live proviso and is far from being obsolete as contended for.
11. Mr. Thakore then faintly argued that the word 'India' really meant 'British India' in this case and the Legislature had inadvertently dropped the word 'British' from this section. Apart from the fact that we fail to perceive any such error as is pressed for by Mr. Thakore, on merely turning to the history of this section (which specially deals with any state outside India), we find that the changes in the section have been effected subsequent to 1950 and the Legislature could not have lost sight of the merger of the native states with India and the fact that the British India had ceased to exist. This Contention raised by Mr. Thakore, therefore, fails.
12. The next argument of Mr. Thakore turned this way:-- The requisition in the instant case was made by Kenya, a British possession, to the Union of India for the surrender of the petitioner on the ground of his being a fugitive criminal. If this requisition were made before the Constitution of India came into force, then in that event this proceeding for extradition would have been governed by the Fugitive Offenders. Act, 1881, which was applicable to India by reason of the provisions of Section 19 of the Indian Act. Under the Fugitive Offenders Act, 1381, provision is made for the extradition of a fugitive criminal if such a fugitive criminal having committed an offence in one part of 'Her Majesty's dominions', left that part and was found in another part of 'Her Majesty's dominions'. India being then part of the dominions belonging to the British Sovereign and so also Kenya, the provisions of Fugitive Offenders Act, 1881, would have applied. According to Mr. Thakore, Kenya being still a part of British dominions, only that Act continued to apply to Kenya and if any law enabled them to requisition the extradition of fugitive criminals who having committed an offence in Kenya were found in India, that law could only be the Fugitive Offenders Act, 1881. In other words, according to Mr. Thakore, once the Fugitive Offenders Act, 1881, applied to Kenya it would apply for all times to come to the exclusion of the applicability of any other provision of the Indian Act. Pursuing this line of argument, Mr. Thakore relied on a judgment of the Supreme Court in the State of Madras v. C. G. Menon : 1SCR280 , where it was held (1) that India having ceased to be a British possession, the Fugitive Offenders Act which was an Act passed by the British Parliament was not kept alive by any of the provisions of Constitution of India, (2) that, therefore, no proceeding could be taken for extradition of fugitive criminals in India under any of the provisions of the Fugitive Offenders Act, 1881. The contention was that whereas Kenya could only requisition fugitive criminals under the Fugitive Offenders Act, 1881, India could not comply with such requisition as that Act, as held by the Supreme Court, was no longer law in India. In other words, Kenya could not make any requisition of Kenyan fugitive criminals found in this country on the Indian Government.
13. It indeed, is now beyond the pale of dispute that the Fugitive Offenders Act is no longer applicable to India by reason of the fact that India has become a Sovereign Democratic Republic. But it does not necessarily follow from that position that if any state was once governed by the provisions of the Fugitive Offenders Act, it will for all times be governed by the provisions of that Act and that the provisions of the Indian Act could never apply for the benefit of such a state. In our view the reciprocity and the mutuality of obligations introduced by the combined effect of Section 19 and the Fugitive Offenders Act, 1881, between India and Kenya disappeared with India ceasing to be a British Possession. But that disappearance cannot impede the coming into existence, by reason of any of the other provisions of the Act, of any other obligations on the Indian Government. That obligation which has thus come into existence is the one under Section 9 of the Indian Act it Kenya was held to be a state outside India not being a foreign state.
14. That leads us to Mr. Thakore's contention that Section 9 was not intended to apply to any British possession which Kenya was at the relevant time but was intended to apply only to a 'state' which according to the argument Kenya was not. Now, as we have pointed out, the scheme of the Act appears to be that Chapter II deals with what we have described as 'treaty States' whereas Chapter HI deals with all States outside India, not being treaty States. At the time when India was a part of British possession, Chapter IV had also application because British possessions did not fall under Chapter II. Since there was specific Act, being the Fugitive Offenders Act which applied to British dominions, the provisions for the effective application of that Act were made in Chapter IV: It appears to us that the scheme was that Chapter III dealt with residuary states, that is, states other than Treaty States or British possessions. If, by reason of the introduction of the Constitution and the changed status of India the Fugitive Offenders Act, 1881, has ceased to apply in India as held by the Supreme Court, then that Chapter of the Indian Act which made the Fugitive Offenders Act applicable in India would cease to have force in connection with Kenya which like India was a British possession prior to the Constitution. We will, therefore, have to find out whether there are any other provisions of the Act which would be applicable in the case of Kenya, the position of Kenya at the time relevant to this petition, being that Kenya was a part of British possession and India was not. It is common ground that Kenya is not a foreign state within the meaning of Section 2(c) of the Indian Act. If it is not a foreign state within the meaning of the definition of the Indian Act, then Chapter II will not be applicable. Kenya will, therefore, become a part of a state outside India, being a part of the British dominions. The provision that will therefore, come into play will be Section 9 which provides for any state outside India which is not a Foreign State. Mr. Thakore's contention that since Kenya was a British possession at the relevant time it could not be said to be a 'state' does not appear to be correct. When the Legislature introduced a change In Section 9 after the coming Into force of the Constitution, the Legislature were aware of what they were dealing with and what they were dealing with was that they intended to include any state or part of a state outside India which was not a 'Treaty State.' In our judgment, it was intended to continue the residuary nature of Section 9.
15. Mr. Thakore's argument that the word 'Stale' used in Section 9 would only mean an 'independent state' and not a 'British possession' as Kenya was, is devoid of force. We do not find any warrant for any such limited interpretation of the word 'state' in this section. As far as India is concerned, Kenya is a part of a state outside India and there is no reason to exclude it because it is a British possession.
16. It was next urged by Mr. Thakore that before we apply Section 9, we will have to determine whether Kenya was a 'Foreign State' or not. According to him, after the Constitution of India came into force, the definition of a 'Foreign State' in the Indian Act became inoperative and ceased to have any legal effect inasmuch as this definition in terms relied on British Statutes which are not applicable to India, namely, the Extradition Acts, 1870 and 1873. In his submission, the next logical step was that the Indian Act, which by its Chapters II and III relied on the definition of a Foreign State would not also have any operative effect at all, inasumch as the very definition ceased to have any operative effect. Mr. Thakore argued that it could not be that the definition of a 'Foreign State' in an Indian Act should follow what may be enacted by the British Parliament from time to time and the definition should be hinged to a foreign parliament and should change according to the changes-effected by such parliament from time to time. In support of that argument, Mr. Thakore once again relied on the decision of the Supreme Court in : 1SCR280 already referred to by us. In that case, the action taken against the respondents was under the Fugitive Offenders Act. This action was taken at the instance of the Government of the British Colony of Singapore who alleged that the respondents, a couple, had committed various offences amounting to criminal breaches of trust in Singapore and were charged therefor. After this couple came to India, the Government of Madras forwarded to the Chief Presidency Magistrate, Madras, copies of communications that passed between the Government of India and the Colonial Secretary of Singapore requesting the assistance of the Government of India to arrest and return to the Colony of Singapore this couple under warrants issued by the Third Police Magistrate of Singapore. The couple where produced before the Presidency Magistrate, Madras, questioned the validity of their arrest. It was urged by them that the provisions of the Fugitive Offenders Act under which action was sought to be taken against them were repugnant to the Constitution of India and were void and unenforceable. The Presidency Magistrate expressed the view that by retaining the Indian Act and with it Chapter IV, the President of India may have intended to give effect to the Fugitive Offenders Act, 1881, but that by the omission to adapt or modify it suitably it had become impossible to give effect to that intention -- the provisions of the Act, as they were, being inconsistent with and repugnant to the sovereign status of the Indian Republic. In the view he took of the matter, he referred two questions to the High Court of Madras for its decision. The High Court of Madras held that Section 14 of the Fugitive Offenders Act was inconsistent with the fundamental right of equal protection of the laws guaranteed by article 14 of the Constitution and was void to that extent and unenforceable against the petitioner. This answered the second question raised by the learned Magistrate. The High Court of Madras, however, by reason of the view they took on the second question, did not deal with the first question raised by the Presidency Magistrate which was 'Whether the Fugitive Offenders Act, 1881, applied to India after 26th January, 1950, when india became a Sovereign Democratic Republic?'. This question was dealt with by the Supreme Court in the appeal filed against the decision of the Madras High Court with certificate under Article 132(1) of the Constitution. At the hearing of this appeal, the Union of India intervened. The learned Solicitor-General appearing on behalf of both, of the State and the Union of India conceded that the Fugitive Offenders Act, 1881, was not adapted by any specific order of the President, and that the Parliament in India had not enacted any legislation on its lines; but it was contended that the omission to adapt the impugned Act in no way affected the question whether it was law in force in the territories of India after the commencement of the Constitution and reliance was placed on Article 372(1) of the Constitution. It was urged that the impugned Act was the law in force in the territories of India immediately before the commencement of the Constitution and continued in force under the provisions of this article after its commencement. In their judgment their Lordships in the Supreme Court considered the relevant provisions of the Fugitive Offenders Act. They pointed out that the scheme of that Act was that it classified fugitive offenders into different categories and prescribed the procedure for dealing with each such category. The first category was the category of persons committing offences in the United Kingdom and British dominions and foreign countries in which the British Crown exercised foreign jurisdiction. The procedure to be followed before surrendering such fugitive offenders was prescribed by Part I and unless a prima facie case was made out they could not be extradited. On the other hand, the second category was that of fugitive offenders in the British possessions. Extraditions inter se between British possessions, were dealt with differently by that Act. These territories were grouped together according to their contiguity etc., by an Order-in-Council and treated as one integrated territory. Summary procedure could be adopted for the purpose of extraditing persons who had committed offences in these integrated territories. In the case of a fugitive criminal found in those integrated territories, the requirement in regard to a prima facie case being made out was dispensed with. Then their Lordships held that after India became a Sovereign Democratic Republic, the situation was completely changed and that after the achievement of independence and the coming into force of the new Constitution, India could not be described as a British possession and also could not be grouped by an Order-in-Council as one of the integrated territories. They further held that the whole basis for the applicability of Part II of the Fugitive Offenders Act providing for extradition in integrated territories disappeared with India ceasing to be a British possession. In the course of their judgment, their Lordships observed as follows, which are the words which Mr. Thakore strongly relied upon:
'Truly speaking, it became a foreign territory so far as other British Possessions are concerned and the extradition of persons taking asylum in India, having committed offences in British Possessions, could only be dealt with by an arrangement between the Sovereign Democratic Republic of India and the British Government and given effect to by appropriate legislation. The Union Parlia-ment has not so far enacted any law on the subject and it was not suggested that any arrange men has been arrived at between these two Govern ments.'
Relying on these observations and in an attempt to apply this reasoning to the case of the definition of a 'Foreign State', Mr. Thakore argued that the definition of a 'Foreign State' as it stood on the statute book to-day had become inoperative and of no use because there could not be any arrangement or treaties between the Government of India and any Foreign State, nor could any arrangement which resulted in an Order-in-Council under Extradition Acts, 1870 and 1873, could be pressed into service as falling under this definition. Now, the reasoning adopted by Mr. Thakore is palpably wrong We have to construe the Indian Act as it stands on the statute book to-day. This Act unlike the Fugitive Offenders Act has been adapted, by the Parliament of India. This Act having been so adapted, it is a law applicable to India to-day. This law indicates the meaning of the word 'Foreign States' as used in that Act and refers for that purpose to the 'Foreign States for the time-being recognised in the Extradition Acts, 1870 and 1873', being two acts passed by the British Parliament As a matter of fact, the provisions of this Act have been amended after the Constitution of India came into force. This is clear pointer to the intention of the Legislature in connection with this Act. The Legislature intended that the meaning to be attached to the words 'Foreign States' in Section 2(c) was even now the meaning given in the British statutes mentioned; it is a live meaning and not a dormant definition as urged by Mr. Thakore. In : 1SCR280 the State of Madras v. C. G. Menon's case itself the Supreme Court were at pains to point out that whereas the Indian Act had been adapted in India, the Fugitive Offenders Act, 1881, which was an Act of the British Parliament had been left severely alone. They observed that the provisions of the Fugitive Offenders Act could only be made applicable to India by incorporting them with appropriate changes into an Act of the Indian Parliament and by enacting an Indian Fugitive Offenders Act. The proceedings in that case before them were specifically under the Fugitive Offenders Act The whole basis for the applicability of that Act had gone. It is in light of the above that the observations set out in quotation marks were made. In fact the reasoning adopted by the Supreme Court clearly indicates that the ratio of the judgment in the case of the Supreme Court cannot be applicable to a case governed by the Indian Act. As a matter of fact, at the end of the judgment it is observed that the Supreme Court did not think it necessary in the case before them 'to enter into a discussion of the questions whether British Possessions with which India was grouped under Part II of the Fugitive Offenders Act, 1881, should now be treated as foreign States qua India and that the offenders apprehended can be surrendered under the Indian Extradition Act or any other law, provided a prima facie case is made against them as the proceedings taken against the respondents were specifically taken under Section 14 of the Fugitive Offenders Act, 1881.' With full knowledge of the situation even after that decision the Legislature has retained the whole definition of 'Foreign States' in the Indian Act. We have, therefore, to look at this definition to find out whether a given state can be said to be a 'Foreign State'. The argument that we cannot look at this definition because it refersto statutes passed by the British Parliament cannot be accepted. It is common ground that Kenya was not (for any reason whatsoever) one of the States which were mentioned in any Order-in-Council passed either under Extradition Act, 1870 or Extradition Act, 1873. In these circumstances, it cannot be said to be a foreign state within the meaning of Section 2(c).
17. We are of the opinion that Section 9 is applicable in this case and the requisition having been made to the Central Government by Kenya, a State outside India and which was not a 'Foreign State' within the meaning of Section 2(c) of the Indian Act, for the surrender of the petitioner who is accused of an offence committed in Kenya, it was competent to the learned Magistrate to proceed with the inquiry under Section 9 read with Section 3 of that Act
18. It is common ground that if Section 9 was applicable the procedure to be followed was the procedure laid down in Section 3. It was argued that under Section 3 Sub-section (6) the Magistrate was under an obligation to report the result of his inquiry to the Central Government and had also an obligation to forward, together with such report, any written statement which the fugitive criminal may desire to submit for the consideration of the Government. The argument was that in the instant case it was common ground that no written statement was forwarded as also that no written statement was filed. What was contended was that on a true construction of Section 3(6) the learned Magistrate should have asked the petitioner to submit a written statement. We do not think that this is the correct interpretation of Section 3(6). The written statement is a written statement which the fugitive criminal may desire to submit and if he does not desire to submit any written statement, there is no obligation on the part of the learned Magistrate to invite him to submit any written statement, nor is it necessary that any request should be made to him in that behalf. There is no substance, therefore, in this point either.
19. Then Mr. Thakore relied on Sub-section (3) of Section 3 which provided that when the Magistrate held an inquiry under that section, he should take such evidence as may be produced in support of the requisition and on behalf of the fugitive criminal. Mr. Thakore argued that under the provisions of this sub-section, it was obligatory on the prosecution to lead some evidence. In the instant case, according to Mr. Thakore, as no evidence was led, the inquiry was not an inquiry as contemplated by Sub-section (3). We do not find any such obligation as is contended for on behalf of the petitioner. The Magistrate has to record evidence that may be led by the prosecution, but there is no obligation thrown on the prosecution to lead some evidence in each case. This contention of Mr. Thakore is also, therefore, without any substance.
20. The petitioner is not entitled to any relief on this petition and the petition is liable to be dismissed.
21. Rule discharged with costs. Interim injunction is vacated.