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Dr. Ram Babu Saksena Vs. State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtRajasthan High Court
Decided On
Case NumberRef. No. 332 of 1950
Judge
Reported inAIR1953Raj12
ActsExtradition Act, 1903 - Sections 7; Indian Penal Code (IPC) - Sections 388 and 420; Adaptation of Laws Order, 1950; Code of Criminal Procedure (CrPC) , 1898 - Sections 177 and 197
AppellantDr. Ram Babu Saksena
RespondentState
Appellant Advocate S.P. Sinha and; C.L. Agarwal, Advs.
Respondent Advocate K.C. Jain, Adv.
DispositionReference rejected
Cases ReferredQueen Empress v. Khoda Uma
Excerpt:
- industrial disputes act, 1947. section 2(s): [m.s. shah, sharad d. dave & k.s. jhaveri,jj] workman part time employees held, part time employees are not excluded from the definition of workman in section 2(s) merely on the ground that they are part time employees. the ex abundante cautela use of the words either whole time or part time by the legislature in the definition of working journalist in the working journalists and other newspaper employees (conditions of service and miscellaneous provisions) act, 1955, does not mean that the definition of workman in the prior act i.e. industrial disputes act, 1947 intended to exclude part-time employees from the definition of workman. the expression part time has nothing to do with the nature of appointment, but it only regulates the.....orderranawat, j. 1. the sessions judge, jaipur, has made this reference under section 438 cr.p.c. recommending that the order of the special magistrate, dated 18-8-50, by which he held that the accused can be tried for an offence under section 161, i.p.c., even though he was not extradited for that offence, be set aside, 2. the accused dr. ram babu saksena belonged to u.p. and was a member of the u.p. civil service. he was appointed the administrator of the then tonk state on the 21st january 1948, but upon recognition by the ministry of states, government of india, of nawab ismail ali khan, hereinafter referred to as the nawab, as the ruler of the tonk state, he was appointed the prime minister and vice-president of the tonk state council on the 14th of february 1948. 3. the case of the.....
Judgment:
ORDER

Ranawat, J.

1. The Sessions Judge, Jaipur, has made this reference under Section 438 Cr.P.C. recommending that the order of the Special Magistrate, dated 18-8-50, by which he held that the accused can be tried for an offence under Section 161, I.P.C., even though he was not extradited for that offence, be set aside,

2. The accused Dr. Ram Babu Saksena belonged to U.P. and was a member of the U.P. Civil Service. He was appointed the Administrator of the then Tonk State on the 21st January 1948, but upon recognition by the Ministry of States, Government of India, of Nawab Ismail Ali Khan, hereinafter referred to as the Nawab, as the Ruler of the Tonk State, he was appointed the Prime Minister and Vice-President of the Tonk State Council on the 14th of February 1948.

3. The case of the prosecution is that the Nawab desired to take an amount of Rs. 13,00,000/- from the State Treasury of the Tonk State for his personal expenditure and requested the accused to assist him in obtaining the sanction of the State Ministry in this matter, and further agreed to pay asum of Rs. 3,00,000/- to the accused for using his good offices. The accused obtained the desired sanction of the State Ministry, and accordingly the Nawab received a sum of Rs. 13,02,467/4/- from time to time between the 31st March 1948 and 29th April 1948. The Nawab gave a sum of Rs. 1,50,000/- to the accused in part payment of the sum of Rs. 3,00,000/- on the 21st of April 1948, out of a sum of Rs. 5,00,000/- received by him on the same date. At the end of April 1948, the accused brought pressure to bear on the Nawab for the payment of the balance of the sum of Rs. 3,00,000/- by threatening to disclose the evidence which the accused said was in his possession relating to Nawab's complicity with the Razakar movement in Hyderabad State, and the Azad Kashmir Forces in the Kashmir State, and thereby obtained from the Nawab a sum of Rs. 1,50,000/- against his will by the - end of April 1948. Later on, through the intervention of the Regional Commissioner, the Nawab got back the amount of Rs. 3,00,000/- from the accused on the 13th July 1948, in the presence of the Regional Commissioner.

4. The case for the accused is that the Nawab left a sum of Rs. 3,00,000/- with him for the purchase of a house in Delhi, which was returned to the Nawab at his request.

5. The accused was arrested on the 23rd May 1949, at Nainital in Uttar Pradesh in pursuance of a bailable warrant issued by Mr. Pillai, the Regional Commissioner of Rajasthan, under Section 7 of the Indian Extradition Act XV of 1903. The offences under Sections 388 and 420 Penal Code, (Tonk State) were mentioned in the warrant to have been committed or supposed to have been committed by the accused in the territories of the Rajasthan State. The accused appeared before the District Magistrate, Jaipur, in accordance with the requirements of his bond executed before the District Magistrate of Nainital.

6. A Special Magistrate was appointed by the Government of Rajasthan for the trial of the cases against the accused, and a challan was submitted by the prosecution in the court of the Special Magistrate against the accused under Sections 388, 420 and 161, I.P.C. Sanction to prosecute the accused under Sections 388, 420 and 161, Penal Code, was accorded under Section 197, Cr. P. C. by the Government of the State of U.P. on the 15th July 1950, and a similar sanction was accorded by the Rajpramukh of the State of Rajasthan under Section 197 Cr.P.C., and Article XVII of the Covenant regarding establishment of the State of Rajasthan.

7. An objection was raised on behalf of the accused in the court of the Special Magistrate that he could not be tried for an offence under Section 161 I.P.C, in Rajasthan, as he was extradited from Uttar Pradesh only for the trial of the offences under Sections 388 and 420, Penal Code. The Special Magistrate disallowed the objection of the accused and proceeded to hold the trial.

8. A revision was filed by the accused against the order of the Special Magistrate in the court of the Sessions Judge of Jaipur, who has referred this case to this court recommending that the trial of the accused for an offence under Section 161, Penal Code, for which he was not extradited, cannot be held under the law.

9. In support of the reference, Mr. S. P. Sinha, the counsel for the accused argued the following points :

(1) that the Extradition Act was a special law which must be taken to override the provisions of the Criminal Procedure Code which was a general law, and as the offence under Section 161 Penal Code was not an extraditable offence, the accused could not be tried for it, as he was extradited for the offences under Sections 388 and 420, Penal Code only;

(2) that the prosecution having acted under the provisions of the Indian Extradition Act could not turn back and ignore the provisions of that Act. The principle that one cannot approbate and reprobate in the same proceedings must prevent the prosecution from acting in derogation of the provisions of the Indian Extradition Act.

(3) no notice should be taken in this case of the subsequent political changes that have taken place regarding establishment of the Indian Union and the merger of the Tonk State into first the United State of Rajasthan and then into the State of Rajasthan which became part of the Indian Union on the 26th January 1950; and

(4) that the right of asylum which had vested in the accused at the time he was extradited cannot be taken away from him.

10. The argument, which has weighed with the learned Sessions Judge in making his re-Commendation, is based on the assumption that the Indian Extradition Act of 1903 is in force in the State of Rajasthan and that it being a special law, it should be deemed to override the provisions of the Criminal Procedure Code which is a general law. As in the list of the Extradition offences given in the first Schedule to the said Act, an offence under Section 161, Penal Code does not find a place, the learned Sessions Judge has inferred in favour of the accused by implication that the intention of the legislature was to exclude the trial of persons extradited under the provisions of that Act for offences other than those mentioned in the list.

11. The learned counsel for the accused has cited the case, -- 'United States v. William Rauscher', (1886), 119 U.S., 407, in support of the opinion expressed by the Sessions Judge, Jaipur. He has also referred to the case -- 'Dhanna v. Chamna', 8 Jaipur L.J. 4, wherein it was decided that in view of the terms of the Extradition treaty between the Jaipur State and the Bikaner State, the accused, who was extradited for trial for an offence of theft, could not be tried for an offence of adultery, which was not extraditable under the terms of the treaty.

12. The learned Government Advocate has in reply argued that the Indian Extradition Act is not the Municipal Law of the State of Rajasthan, and as such the law applicable to the trial of the accused was the Criminal Procedure Code of Rajasthan. The accused could not therefore seek any assistance from the provisions of the Indian Extradition Act in his favour. How the accused is brought before the court is not the concern of the trial court and the only thing which that court would do is to enquire into the charges levelled against the accused and to give a decision thereon. In support of his argument, the Government Advocate has cited -- 'Emperor v. Vinayak Damodar', 10 Ind Cas 956 (Bom.), and -- 'Queen Empress v. Khoda Uma', 17 Bom, 369.

13. The main question for determination in this case is whether the accused who is extradited under the provisions of Section 7 of the Indian Extradition Act from the Province of U.P. for trial under Sections 388 and 420, Penal Code can be tried in Rajasthan for an offence under Section 161, Penal Code which is an offence not mentioned in the first Schedule of the Indian Extradition Act relating to extradition offences.

14. In an article published in the American Law Review in the year 1876, written by Judge Lowell of the United States Court of Boston, after an examination of the authorities upon the general rule of the International Law Independent of treaties as found in the continental writers on International Law, it has been said that the rule is that the person whose extradition has been granted cannot be prosecuted and tried except for the crime for which his extradition has been obtained. A reference to this article has also been made in the judgment in -- 'United States v. William Rauscher', (1886) 119 U.S., 407. Mr. David Dudley Field in his draft of an outline for an International Code published about the same time adopts the same principle (Field's International Code, para 327, p. 122). There was a long-standing controversy on this question between Great Britain and the United States of America which was set at rest by the decision in -- 'William Rauscher's case'. The United States insisted that when once a person had been duly extradited he became for all purposes subject to the local jurisdiction, but the rule contended for by Great Britain was to the contrary, which was finally affirmed in -- 'the United States v. William Rauscher', and has since been expressly incorporated in the Extradition treaty entered into between the two countries in 1890. This principle has been applied in a number of cases in various countries, e.g. -- 'Buck v. King', (1919) 55 SCR 133 (Canada), and -- 'Scott and Jaeger', p. 403. It may be pointed out here that the expert opinion on the International law is in accordance with the principle laid down by the decision in the case of William Rauscher referred to above, but the decision in that case mostly depends on the terms of the treaty between the two countries. This point will be discussed hereafter more fully.

15. It is a general principle of law that all crime is local. Section 177, Cr. P.C. lays down that 'every offence shall ordinarily be enquired into and tried by a court within the local limits of whose jurisdiction it was committed'. The accused in the present case is alleged to have committed certain offences in the then Tonk State, the territories of which have now been merged into the State of Rajasthan. According to this rule of law, the accused can only be tried for offences committed by him in Rajasthan by a competent court in the State of Rajasthan, unless there be some provision of law contrary to it. The only law which is cited in support of the accused is Section 7 and the Schedule of the Extradition offences appearing in the Indian Extradition Act of 1903.

16. Section 7 of the Indian Extradition Act is as follows :

'(1) Where an extradition offence has been committed or is supposed to have been committed by a person, not being a EuropeanBritish subject, in a Part B States or in the territories of any State outside India not being a foreign State, and such person escapes into or is in the territories to which this Act applies, and the Regional Commissioner in or for such State issues a warrant, addressed to the District Magistrate of any district in which such person is believed to be, or if such person is believed to be in any Presidency town to the Chief Presidency Magistrate of such town, for his arrest and delivery at a place and to a person or authority indicated in the warrant, such Magistrate shall act in pursuance of such warrant and may give directions accordingly.'

The first Schedule to the Indian Extradition Act referred to in the definition of 'an extradition offence' includes the offences of cheating and extortion, but does not contain the offence under Section 161 of the Indian Penal Code. The argument of the learned counsel for the accused that according to the general principle that the specific enumeration of certain matters and things in a law implies the exclusion of all others and that the Special law should be deemed to supersede the general law may be regarded as correct. According to this principle, the fact that a list of specific offences is given in the Indian Extradition Act as being extraditable offences, should lead to an inference by way of implication that the intention of the legislature is to exclude the trial of the extradited persons for offences not specified in that list. Further, the Indian Extradition Act being a special law would supersede the provisions of the Criminal Procedure Code which is a general law. But the question then arises whether the Indian Extradition Act is in force in the State of Rajasthan. A reference has been made in this connection by the learned Advocate for the accused to the following observations in the judgment of the Supreme Court, delivered by His Lordship B.K. Mukherjea J., reported in -- 'Dr. Ram Babu Saksena v. State', AIR 1950 SC 155, at para 26:

'Obviously the Indian Dominion could pass any legislation it liked regarding matters of Extradition between the Tonk State and another State, either Indian or foreign. No such law was however passed by the Indian legislature except that very recently under an Adaptation Order the Extradition Act of 1903 has been made applicable to States under Group B in the Indian Constitution in which Rajasthan is included.'

It may be pointed out that the aforesaid remark does not appear to be in accordance with the provisions of the Adaptation of Laws Order 1950, which lays down as follows: 'The Indian Extradition Act, 1903 (XV of 1903): Section 1 -- For Sub-section (2) substitute -- (2) It extends to the whole of India except Part B States.' Section 7 -- In Sub-section (1) for 'in the territories of any State not being a foreign State' substitute 'in a part B State or in the territories of any State outside India not being a foreign State' and for 'The Provinces' substitute 'in the territories to which this Act extends'.' (17) The position therefore is that the Indian Extradition Act does not apply to Part B States but it applies to the rest of India. Under these circumstances, it cannot be said that the Indian Extradition Act is in force in the State of Rajasthan, and consequently the argument advanced on behalf of the accused that the enumeration of specific offences in the first scheduleof the Indian Extradition Act should be interpreted to have excluded the trial of the offences not mentioned in the schedule in case of a person extradited to Rajasthan is not available to the accused. The learned Sessions Judge acted on the understanding that the Indian Ex-tradition Act was in force in the State of Rajasthan which is not the case.

18. The two Indian enactments of the Central Legislature--the Code of Criminal Procedure & the Indian Penal Code--have also not been extended to Part B States by the Adaptation of Laws Order 1950, but have only been applied to Part A or Part C States. In this behalf, the Adaptation of Laws Order 1950 provides as follows :

'The Indian Penal Code (XLV of 1860) -- Preamble -- For 'the Provinces of India' substitute ' the whole of India except Part B States;'

'The Code of Criminal Procedure, 1898 (V of 1898) -- after clause (t) insert -- (tt) 'State' means a Part A State or a Part C State, and 'States' means all the territories for the time being comprised within Part A States and Part C States.'

Hence the Penal Code and the Criminal Procedure Code that are in force in the State of Rajasthan having been enacted by the Rajasthan State prior to the establishment of the Union of India and having been continued by virtue of Article 372 of the Indian Constitution have got to be applied unless it can be shown that some special law prevents the trial of the accused for non-extraditable offences. The counsel for the accused has not been able to show any provisions of law in his favour, which may help the case of the accused in this behalf, except the opinion of experts on the aspect of the International law, and the case of -- 'United States v. William Rauscher', 1886-119 U.S. 407 referred to above.

19. It may be observed here that the decision in Rauscher's case mostly revolves on the interpretation of the treaty between Great Britain and the United Stales, though in support of the judgment some extracts from the articles on International Law by eminent jurists have also been referred to. Such opinions can be helpful only in cases where there is no Municipal law on the point. But where there is a specific provision of the Municipal Law, opinions of experts however eminent cannot be regarded as overriding the provisions of the Municipal law. According to Section 177 of the Criminal Procedure Code, all offences committed or alleged to have been committed by an accused person in the limits of the State of Rajasthan whether extraditable or not are to be tried by a competent court in the State of Rajasthan irrespective of the fact that the accused was extradited only for the trial of extraditable offences. The case reported in -- 'Dhanna v. Chamna', 8 Jaipur LJ 4, also cannot ' help the accused, because the decisiontherein is based on the interpretation of the terms of the treaty between the two States, and in the present case, there is no such treaty to be taken into account. The survival of the extradition treaty between the Tonk State and the British Government, after the merger of the Tonk State into Rajasthan and after the establishment of the Indian Union may well be doubted in view of the majority decision of the Supreme Court delivered by His Lordships Mukherjea J., reported in--'Dr. Ram Babu Saksena v. State', AIR 1950 SC 155. Moreover, atreaty cannot take the place of a Municipal law.It has been conceded by both the parties thatno law on the subject of extradition was enactedby the Tonk State or by the State of Rajasthanthereafter.

20. A certified copy of the judgment of K.N. Wanchoo J. of the Allahabad High Court,dated the 7th of September, 1950, has been produced by the Government Advocate, which wasgiven in the case -- 'State v. Shyamlal', inwhich it has been held as follows: 'If action had been taken on the warrant is--sued by the Regional Commissioner before the 26th of January 1950, the proceedingswould have been legal, vide -- 'Dr. Ram Babu Saksena v. State', AIR 1950 SC 155. But no action was apparently taken on thiswarrant till the 2nd of February, 1950. Onthat date, the Constitution of India havingcome into force, the proper course was forthe court, where the case was pending, to send a warrant under the Criminal Procedure Code for service. Under these circumstances, Iallow this application and order that ShyamLal need not surrender on the basis of thewarrant issued on the 12th of January 1950.At the same time, I should like to make itclear that it is open to the court in MadhyaBharat where the case is pending to send awarrant under the Code of Criminal Procedure for the arrest of the applicant.'It has been argued in the light of this decisionof the Allahabad High Court that even thoughprevious to the 26th January 1950, there mighthave been a necessity for the extradition of persons from and to the State of Rajasthan, butunder the law now in force it is no longernecessary to have any extradition proceedings,and consequently the objection raised on be-half of the accused regarding his asylum in theUnited Provinces has lost its force.

21. It may be observed in this connection that the view adopted in the judgment of the learned Judge of the Allahabad High Court is in conflict with the position of law as evidenced by the Adaptation of Laws Order, 1950. As has already been discussed above, the Indian Extradition Act has not been applied to the Part B States and it has been made applicable to the rest of India. Under the provisions of Section 7 of the Indian Extradition Act for the extradition of fugitive offenders, a warrant under Section 7 has got to be issued by the Regional Commissioner of the Part B States. Further the Penal Code and the Criminal Procedure Code in force in the rest of India have not been extended to the Part B States with the result that the Indian Penal Code and the Criminal Procedure Code in force in the State of Rajasthan are not the same as the laws in force in the rest of India on this subject. No warrant of arrest can be issued by a court in Rajasthan for the arrest of a person outside it under the Criminal Procedure Code in force in the rest of India, and a warrant of arrest can be issued under the Criminal Procedure Code in force in Rajasthan only for the arrest of persons found in the State of Rajasthan. The intention of the legislature therefore is to keep the law of extradition in force for the exchange of fugitive criminals between the Part B States and the rest of India. The inclusion of the State of Rajasthan in the Indian Union therefore does not make any difference in the position of law relating to the extradition of theoffenders from other parts of India to Rajasthan. But at the same time, it may be pointed out that so far as the State of Rajasthan is concerned, it is conceded by both the parties that the Indian Parliament has not up till now enacted any law on the subject of extradition of the fugitive offenders who, after having committed offences in other parts of India, take asylum in Rajasthan. Nor was there any such law of the State of Rajasthan in force on this subject at the time the Indian Union was established, which could have been continued under the provisions of the Constitution of India. This is rather anomalous, but it is so. To secure extradition of an accused person from the rest of India to the State of Rajasthan, a warrant under Section 7 of the Indian Extradition Act is necessary, but it is not certain what procedure would be available for extradition of offenders from the State of Rajasthan to the rest of India. The argument advanced in this behalf by the learned Government Advocate therefore does not in any way assist his case.

22. Regarding the point whether the accused had any right of asylum vested in him at the time of his extradition, which cannot be taken away from him, the learned Government Advocate has referred to the case in -- 'Emperor v. Vinayaka Damodar', 10 Ind. Cas. 956 (Bom.). In that case, the accused after his arrest escaped and went over to a foreign country, but he was again arrested by the Indian Police perhaps in contravention of the laws of that country and at the trial a plea was raised by the defence that as the arrest of the accused in the foreign country was illegal, the accused could not be tried for the offences alleged to have been committed by him prior to his illegal arrest, because such a trial infringed the right of asylum acquired by the accused by his entry In a foreign country. In that case the following observations were made by the High Court of Bombay, which throw a good deal of light on the points raised in the present case: 'Where a man is in the country and is charged before a Magistrate with an offence under the Indian Penal Code it will not avail him to say that he was brought there illegally from a foreign country. This appears very clearly from Lord Chief Justice Cockburn's charge to the Grand Jury in the -- 'Queen v. Nelson and Brand'. It was held that George William Gordon had been by an illegal and unwarrantable act arrested and conveyed by the Governor and Custos of Kingston in Jamaica to Morant Bay in that island, and there placed before a Military Court-Martial administering Martial Law in Morant Bay but not in Kingston. The Lord Chief Justice, however, held that having' been brought within the ambit of Martial law he was liable to be tried under it. He said (at pages 118 and 119):

'When Mr. Gordon was brought within the ambit or sphere of the Jurisdiction of Martial Law--assuming always, on this part of the case, that there was such a jurisdiction--it seems to me that it was not for the parties administering the Martial law to inquire how he had been brought there. I will illustrate the matter by a case which has happened before now. Suppose a man to commit a crime in this country, say murder, and that, before he can be apprehended, he escapes into some country with which we have not an Extradition Treaty, so that we could not get him delivered up to us by theauthorities and suppose that an English Police Officer were to pursue the malefactor, and finding him in some place where he could lay hands upon him, and from which he could easily reach the sea, got him on board a ship and brought him to England, and the man were to be taken in the first instance before a Magistrate, the Magistrate could not refuse to commit him. If he were brought here for trial, it would not be a plea to the jurisdiction of the Court that he had escaped from justice, and that by some illegal means he had been brought back. It would be said 'Nay, you are here; you are charged with having committed a crime, and you must stand your trial. We leave you to settle with the party who may have done an illegal act in bringing you into this position; settle that with him.' So here, although if Mr. Gordon had been put to death, but had been subjected to some minor punishment, some of those scourging or other things that we have heard of in Jamaica -- if he had come to England and had brought an action for damages against Governor Eyre, it may well be that a Jury of English men, presided over by an English Judge, would have awarded him exemplary damages for the wrong that had been done him; but that does not affect the question we are now considering, namely, whether, having been brought within the ambit of the Martial law, he was liable to be tried under it. I cannot but think that he was.'

'The report of In re Parisol affords two instances in which the same view was taken by the Court upon protests being made by prisoners as to the illegality of the arrests outside the British Islands. In one case the arrest was in Brussels; in the other in Jersey. In -- 'In re Susannah Scott', (1829) 9 B & C 446 the alleged illegality of an arrest in Brussels was held to be irrelevant.'

'The principle upon which these cases are based underlies also Section 188 of the Criminal Procedure Code which, in that Vinayak, a Native Indian subject, is charged inter alia in respect of certain offences committed in London, applies to this case. Under that section it has been held in--'Empress v. Maganlal', 6 Bom. 622 that a Native Indian subject arrested without a warrant by British Indian Police in a Native State and brought to Ahmedabad was 'found' in Ahmedabad so as to give jurisdiction to the Magistrate at that place.'

'This decision followed that of fourteen Judges sitting in the case of -- 'Queen v. Lopez', (1858) 27 LJMC 48 where it was held that a man if 'found' for the purposes of Criminal jurisdiction under 18 and 19 Vict. c 91. Section 21, wherever he is actually present whether or not he has been brought to that place against his will.'

'Mr. Baptista has, however, relied upon the judgment of the Judicial Committee in -- 'Muhammad Yusufuddin v. Queen-Empress', 24 Ind App 137 (PC) as being inconsistent with the cases relied upon by the prosecution since the Judicial Committee held that an arrest of a Hyderabad subject at a station on a Railway line in the Hyderabad State over which the Queen Empress had no general Criminal Jurisdiction was illegal and advised Her Majesty that the warrant andarrest and the proceedings thereon should be set aside.

It is to be observed, however, that the Lord Chancellor in delivering judgment was careful to point out that their Lordships were called upon to pronounce their opinion as to the legality of the arrest, but they hadnothing to do with the question whether or not if the accused had been found within British Territory he could have been lawfully tried and convicted nor with the consequences of the arrest being lawful or otherwise. The judgment does not purport to deal with the question whether an illegal arrest in foreign territory vitiates an inquiry by a Magistrate into an offence against the Indian Penal Code charged against the person arrested when brought before the Court; nor does it appear from the report that the question was argued. That has, therefore, no bearing upon the question now under consideration.'

23. The only distinction between the casereported in -- 'Emperor v. Vinayak Damodar',10 Ind Cas 956 (Bom), and this case is that inthat case there was no question of Extraditionwhereas in the present case extradition of theaccused has been obtained from another State,but, as has already been discussed above, thefact that the accused has been extradited toRajasthan does not make the position of theaccused in any way different from the one itwould otherwise have been, and for the purposeof the trial of the accused, the opinion expressedin that judgment will hold good. No right ofasylum is available to the accused so as tobar his trial in Rajasthan for non-extraditableoffences.

24. The Government Advocate has also cited -- 'Queen Empress v. Khoda Uma', 17 Born 369, but that case does not help much in the decision of this case. In that case, the treaty between the Government of India and the Gaekwar of Baroda related to the extradition of all offences generally. No question therefore could have arisen in it about the legality of the trial of an extradited prisoner for offences which were not extraditable.

25. The learned Government Advocate has also urged that trial of an extradited offender relating to an offence which is not extraditable may offer a case for complaint to the Government of the State surrendering the offender, but it does not give any protection to the prisoner extradited and, in the present case, the Government of the Uttar Pradesh from where the accused was surrendered to Rajasthan has expressly accorded sanction under Section 197 of the Criminal P. C. to prosecute the accused for an offence under Section 161, I.P.C. The learned Sessions Judge has remarked in his judgment that such sanction cannot be taken note of in contravention of the Municipal. Law of the land, but it may be observed in this connection that as has already been discussed above there is no municipal law in force in the State of Rajasthan on thesubject of extradition of fugitive offenders, and it cannot therefore be said that the sanction referred to above accorded by the Government of the U. P. is in conflict with any of the provisions of the Municipal law of the State of Rajasthan. Sanction of the Government of the U.P. was perhaps necessary before the accused could be extradited because he belonged to the Civil Service of U. P. It appears therefore that the State of U. P. has no objectionin the trial of the accused for an offence under Section 161, I.P.C., even though his extradition was obtained for trial under Sections 388 and 420, I.P.C. only.

26. The argument of the learned advocate of the accused that the prosecution cannot approbate and reprobate in the same proceedings does not apply to the present case. The Indian Extradition Act had to be followed by the prosecution in obtaining the extradition of the accused, but once the extradition proceedings are over, that Act cannot be applied to the proceedings in the enquiry or trial of the accused as it is not in force in Rajasthan.

27. In conclusion it may be said that there appears to be no legal restriction against the trial of the accused for an offence under Section 161, Penal Code, even though he was extradited for the trial of offences under Sections 388 and 420, Penal Code and an offence under Section 161, Penal Code is not included in the list of extradition offences in the Indian Extradition Act of 1903.

28. This reference is, therefore, not accepted, and the order of the special Magistrate, rejecting the objection of the accused in this behalf is upheld.


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