1. The applt. Nanaka Alias Nanga Singh of village Bisonda in Dholpur Sub-division Bharatpur, was arrested on 26-11-1949 on the requestion of the police Kheragarh, Dist., Agra, in Uttar Pradesh, dated 11-9-1949, for an alleged offence Under Section 397/365, Penal Code. Later on, he was let off on bail on 17-2-1950. He makes this appln. Under Section 491, Cr. P. C. on the ground that his arrest & detention were illegal as there was no law of extradition in force in Dholpur State at the time of his arrest. His conditional release on bail was therefore, not justified. He is entitled to be released unconditionally & is not liable to be surrendered to Uttar Pradesh. The bail bonds be therefore cancelled.
2. It may also be mentioned that the appct. was later on informed that he was detained in connection with some local case also. But he was ultimately discharged. This has, however, no bearing on this case.
3. We have heard learned counsel for the appct. as well as the Govt. Advocate. It has been argued on behalf of the appct. that there was no extradition Act in force in Dholpur State before its merger into Matsya State & thereafter in the United state of Rajasthan. There was only a treaty between the former Dholpur State & then British India entered into in 1869. This treaty consists of 8 articles. None of them authorises the extradition of a Dholpur subject from Dholpur State for an offence committed outside Dholpur State. Moreover this treaty remained a mere treaty & was never incorporated in the municipal law of Dholpur. It has therefore no effect against a subject of Dholpur State. Even after the formation of the United State of Rajasthan & the merger of Dholpur state therein, no municipal law regarding extradition came into force. The appct. cannot therefore be extradited & is entitled to unconditional release. A ruling of this Ct. in the case of 'Beerma v. State' decided by a D. B. of this Ct. . on 17-3-1950, was cited in support of the appct's. contention. A judgment of the final Ct. of appeal Udiapur in the case of 'Mangilal v. Sarkar' was also reld. upon.
4. On behalf of the state, the learned Govt. advocate conceded that no statutory recognition was given to the treaty of 1869 entered into between the former Dholpur State & the then British India. He however, argued that Dholpur subjects committing extraditable offence in British India according to the said treaty have, even since it was entered into been extradited to British India. This shows that the law was adopted in Dholpur. He refers to 'The Dholpur Extradition Guide' by Sardar Ranbir Singh, a Ses. J. of Dholpur State, to show that the law of extradition in the terms of the treaty was adopted in Dholpur state. He also takes his stand on the principle of reciprocity & argues that it would be unfair & inequitable if Uttar Pradesh were bound to surrender offenders to Dholpur State according to the treaty, but Dholpur State or for the matter of that the United state of Rajasthan be not bound to surrender offenders to Uttar Paradesh. Reliance was placed upon a recent decision of S. C. in the case of 'Dr. Ram babu v. King' in Cr. Appeal No. 11 of 1949. It was further argued that the treaty of 1869 authorised the extradition of a Dholpur subject to British India for an extraditable offence committed therein.
5. We have considered the arguments of the learned counsel for both the parties. We do not wish to pronounce any opinion on the question whether the treaty of 1869 authorised the extradition of a Dholpur subject to the erstwhile British India for an extraditable offence under the treaty committed in British India, as the appct. succeeds on the ground that there was no law in force on the subject of extradition in Dholpur, nor was it in force in the united state of Rajasthan when the appct. was arrested on 26-11-1949. It has been conceded by the Govt. Advocate that there was no statutory law in force on the subject of extradition in the former Dholpur state. It is therefore, clear that the treaty of 1869 remained a mere treaty so far as Dholpur state was concerned. It is true that offenders were extradited to British India & some Indian states in accordance with the treaty of 1869. But this practice cannot give a mere treaty the force of law.
6. An exactly similar case has been recently decided by a D. B. of this Ct. consisting of Ranawat & Mehta JJ. It is 'Beerma v. State (cr. Mis. appln. No. 3 of 1950) decided on 17-3-1950. There, too, the petnr. was arrested under orders of the Dist. Mag. Dholpur on the requisition of U. P. Govt. Under Section 395, Penal Code. One of the contentions raised by the petnr. was that the treaty of 1869 had not been incorporated into Municipal law of the land & therefore did not bind the subject. The contention was accepted by the learned Judges. They have given the following extracts from the able judgment of the Ct. of final appeal Udiapur which was composed of Shri K. M. Munshi & two other Judges & which has been refd. to above, to support their view.
'Mere execution of a treaty for extradition cannot by itself be treated as equivalent to enacting a law carrying it into effect. Treaties which are part of international law do not form part of the law of the land unless expressly made so by the legislature. (Oppenheim International Law Vol. 1 p. 38). The same is the position under the Govt. of India Act 1935. Implementing of treaties & extradition Schedule VII, list 1, item 3, are both matters for which there must be legislation before action can be taken.'
7. In the above Udiapur case a similar question arose in as much as the petnr. was requisitioned by Gwalior Govt. for an extraditable offence under a treaty between Mewar & Gwalior Govt. The treaty was, however, not incorporated into the Municipal law of Mewar. The extradition was refused & the petnr. released. The following observations are worth quoting.
'The Mewar Govt. appears to have proceeded throughout on the basis that merely signing of the treaty & issue of executive orders to district officials was sufficient to make its stipulations binding upon its subjects, the Cts. & officials. But the official publication of a treaty by the Govt. under international law will be sufficient only if the Municipal law of that state justified it. It appears that the Mewar Govt. have been acting for many years on the footing that the treaty & the orders of Shriji (H. H. the Maharaja Udaipur) operate as Municipal law. Even the treaty with the British Govt. made on 16-12-1869 & found in Aitcheson's Treaties, Vol. III, p. 36 does not appear to have been brought into operation by legislative enactment. Under Article 24, Clause 4(1) of the constitution (Mewar constitution of 1947), all laws in force on the date of this promulgation have been continued as such after its promulgation, but to be a law which is continued by the constitution.
('In our opinion a practice of the kind aforesaid cannot be deemed to be a law which is continued by the constitution.')
Note : -The words in the bracket are mine.
8. The judgment above refd. to has sought support from several authorities, British as well as American. The view propounded therein, has been followed, in the D. B. judgment of this Ct. above refd. to. As has been said above, in the D. B. case. also the case came from Dholpur & the question was whether the treaty of 1869 authorised the extradition of a Dholpur subject to British India for an extraditable offence committed therein, without the treaty being incorporated in the Municipal law of Dholpur. The learned judges observed as follows:
'It may be noted that the treaty between the British Govt. & the Dholpur state, after it was signed, was not given the form of law by means of a legislative enactment, but it was being acted upon by the Dholpur state authorities upto the time the state was merged into the united state of Matsya as if it was a good law. Perhaps nobody may have questioned its legality. All laws that were in force in the then Dholpur state & subsequently in the united state of Matsya, continued to be the laws in force in the area of former Dholpur state, firstly under the provision of the ordinance No. 1 of the united state of Rajasthan & subsequently by virtue of Section (Article) 372, Const. Ind. Treaties, which are part of the international law, do not form part of the law of the land., unless expressly made so by the legislative authority. In the present case, the treaty remained a treaty only & no action was taken to incorporate it into a law. That treaty cannot, therefore, be regarded as a part of the Municipal law of the then Dholpur state, & the practice of surrendering fugitive criminals, which was being folld. by the former Dholpur state, cannot be deemed to be a law that can be continued Under Section (Article) 372, Const. Ind. Section (Article) 21, Const. Ind. lays down that no person shall be deprived of his life or personal liberty except according to the procedure established by law. When the extradition treaty of the Dholpur state is, as discussed above, held not to possess the force of law, the liberty of a citizen of India cannot be taken away under it. The detention of the petnr. under the provision of the treaty cannot, therefore, be held valid because it cannot be said to be according to the procedure established by law'.
N. B. The words in bracket are mine.
9. The last mentioned case is on all fours with the present case. It is also a judgment of the D. B. of this Ct. & cannot be lightly dissented from the learned Govt. advocate, however, argued that in that case it was not consd. that in the former Dholpur state His Highness the Maharaja Rana of Dholpur was the highest executive as well as the legislative authority, & therefore the judgment therein has no binding effect on the Bench. It is true that in the then state of affairs His Highness the Maharaja Rana was the highest executive as well as the legislative authority. This however, does not mean that any executive act of the Maharaja Rana amounted to a legislative act. Entering into a treaty with British India was an executive act & the treaty, to have a binding effect upon a subject, had to be incorporated into a Municipal law. Of course, the Maharaja Rana could have himself done it, but he never did so. It may be an oversight, but or that subject cannot be bound by a mere executive act of the Maharaja Rana. In the Udaipur case, which has been cited above, exactly the same argument was made, but it was refuted, as would appear from the extract of the judgment given above.
The Dholpur Extradition Guide composed by a Ses. J. of that state refd. to by the learned Govt. Advocate does not show that any law was passed in Dholpur state relating to extradition. It only gives the treaties & shows that a practice of extradition obtained in the state.
10. Again it was argued that the authority of the D. B. ruling of this Ct. cited above, has not been shaken by the ruling of the S. C. in the case, 'Dr. Rambabu v. King' (Cr. Appeal No. 11 of 1949) given as recently as 4-5-1950. We have very carefully gone through this ruling which is binding upon us. However, we do not find anything in the judgment which is contrary to the view of the learned Judge of this Ct. in the above mentioned case. In 'Dr. Sexena's case' the question was whether the U. P. Govt. could extradite a person alleged to have committed an extraditable offence tinder the Indian Extradition Act, but not under a treaty of 1869 arrived at between British India & Tonk state. His Lordship Shastri J. held that the U. P. Govt. could not be compelled to extradite such a person, but there was no bar to its surrendering him, if it so, liked. There is an essential difference between the facts of that case & the facts of the present case. In that case the alleged offender was being requisitioned by Rajasthan Govt. from U. P. Govt. The Indian Extradition Act applied to U. P. & the alleged offence was an extraditable offence under the Act. The subject could not, therefore, say that there was no law in force in U. P. according to which he could be extradited. Here in Rajasthan, or former Dholpur state, no act similar to the Indian Extradition Act was in force when the appct. was arrested. He was requisitioned merely on the strength of the Treaty of 1869 which was not incorporated into any municipal law upto the date of his arrest. He was, therefore, entitled to say that there was no law in force, under which he could be extradited. The ruling of the S. C. cited on behalf of the state has no application to the facts of the present case.
11. It was also argued that in accordance with the principle of reciprocity when an offender can be requisitioned from U. P. by Dholpur State, or for the matter of that Rajasthan, under the Treaty of 1869, it would be unfair if the offenders are not extradited from on the basis of the same treaty. This is really unfortunate, but subject cannot be bound by a mere treaty not incorporated into municipal law. simply because it has been incorporated into the Municipal Law of another state, or because there is a statutory law regarding extradition in the latter state. It was for the then Govt. of British India to press Dholpur Durbar to pass an Extradition Act in accordance with the treaty of 1869, but some how it escaped the attention of that Govt. The appct. cannot, therefore, be extradited to Uttar Pradesh for the alleged offence in the absence of any such law prevailing in Rajasthan on the date of his arrest. We have no reason to differ from the D. B. ruling of this Ct. cited above.
12. According to Article 21 of the Const. Ind. no person can be deprived of his personal liberty except according to procedure established by law, The appct. is therefore, entitled to be released unconditionally.
13. The appln. is allowed & it is ordered that he will not be extradited for the alleged offence & his bail bonds are cancelled.
14. I agree,