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In Re: K.R.P.L. Chockalingam Chettiar - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtChennai High Court
Decided On
Reported in(1960)2MLJ425
AppellantIn Re: K.R.P.L. Chockalingam Chettiar
Cases ReferredDr. Khare v. State of Delhi
Excerpt:
- - 11. the case for the accused was that for about 25 to 30 years he has been paying the salaries to the labourers and obtaining a commission from the management for the actual disbursements, that in december, 1954, his business failed, that he paid to the management whatever amount he had in the bank and came away to india as his wife was ill and that he did not go back because his visa had expired. in the united states it is well settled that independently of statutory or treaty provision, no authority exists in any branch of the government to surrender a fugitive criminal to a foreign government, although in 1864 mr. ) 19. there is an interesting study of extradition on the soviet union and eastern europe in the recent two-volume publication 'government, law and courts in the.....ordersomasundaram, j.1. this is a revision against an order passed by the collector and additional district magistrate of ramanathapuram at madurai on a letter from the home department, madras, to the additional district magistrate, madurai, which letter in turn was necessitated by a communication from the ministry of external affairs, government of india, for the extradition of the petitioner herein, against whom a complaint was laid before the chief magistrate, colombo, in c.c no. 28703/a on his file for the offence of criminal breach of trust. under the memorandum, the. additional district magistrate was to make an enquiry under sectibn 3 of the indian extradition act, the communication from the ministry of external affairs, new delhi, was one under section 9 of the indian extradition.....
Judgment:
ORDER

Somasundaram, J.

1. This is a revision against an order passed by the Collector and Additional District Magistrate of Ramanathapuram at Madurai on a letter from the Home Department, Madras, to the Additional District Magistrate, Madurai, which letter in turn was necessitated by a communication from the Ministry of External Affairs, Government of India, for the extradition of the petitioner herein, against whom a complaint was laid before the Chief Magistrate, Colombo, in C.C No. 28703/A on his file for the offence of criminal breach of trust. Under the Memorandum, the. Additional District Magistrate was to make an enquiry under sectibn 3 of the Indian Extradition Act, The communication from the Ministry of External Affairs, New Delhi, was one under Section 9 of the Indian Extradition Act. The Additional District Magistrate, after making an enquiry, has held that a prima facie case has been made out arjd has committed the petitioner to prison to await the orders of the Central Government under Section 3(4) of the Indian Extradition Act.

2. Mr. Kasturi, appearing for the petitioner, contends that the order passed by the Additional District Magistrate is wholly without jurisdiction and that as the law stands at present, the petitioner cannot be extradited to Ceylon. His main contention, is that none of the provisions of the Indian Extradition Act of 1903, that is, neither Chapter II, nor Chapter III, nor Chapter IV 'will apply to the facts of the case.

3. The Indian Extradition Act was passed before the attainment of Independence of India when India was a British possession. At the time when this Act was passed there were two Acts passed by the Parliament in England; they were the Extradition Acts of 1870 and 1873 and the Fugitive Offenders Act of 1881. The Extradition Acts, 1870 and 1873, applied only to cases of those foreign States with whom England had entered into treaty for the rendition of criminals. The Fugitive Offenders Act was passed for the British Colonies and Dominions, including British possessions in India. The procedure to be followed before surrendering criminals in the case of Foreign States is different from the procedure to be followed in the case of Colonies and British possessions. Apart from the Foreign States and the British Colonies and possession there was another set of States which did not fall under either of the above categories. There were the Native States in India. Native States were neither Foreign States for England rior were they Colonies within the British Empire. The Extradition Acts of 1870 and 1873 and the Fugitive Offenders Act, 1881, will not therefore apply to them. It is in this context that the Indian Extradition Act was passed including therein another provision contained in Chapter III. Chapter II applied to those States to which the Extradition Act of 1870 and 1873 will apply. The Fourth Chapter will apply to the Dominions to which the Fugitive Offenders Act will apply. As there is now a third set of States to which neither of the two Chapters will apply, i.e., the Indian States, Chapter III was included. That is why it is stated there that the Chapter will apply to States not being a Foreign State. Now, after the attainment of independence the provisions of the Fugitive Offenders Act which related to the group of British Dominions have been held to be inapplicable as India does not form part of that group. If the Fugitive Offenders Act does not apply, then we are left with the two Chapters, Chapters II and III. Chapter II, as already stated, will apply only to Foreign States with which England has entered into treaty. Chapter II therefore will not apply to Ceylon as it was a Dominion; and Chapter III, as already stated, will apply only to those States which are. not Foreign States. Now, so far as India is concerned, Ceylon neither forms part of the group of States to which the Fugitive Offenders Act will apply,'nor can it be said that Chapter II will apply because, England has not entered into treaty with Ceylon. But, Ceylon is a Foreign State so far as India is concerned, Chapter III, will not, therefore be applicable. to extraditions applied for from Ceylon. But in Ceylon the Fugitive Offenders, Act has been amended, so as to include India; but, there is no such enactment so far as India is concerned, and, as the law stands at present, it looks as though jthe law does not permit rendition of a criminal on an application made by the State of Ceylon though Ceylon has, on its part, passed an enactment to render a criminal when applied for by India. The question is an important one and on account of the importance of the question, the learned Advocate-General suggests that the matter may be referred to a Full Bench.

4. I direct that the papers be placed before my Lord, the Chief Justice for orders as to posting before a Bench or a Full Bench.

5. The question to be decided is :

Whether the extradition can legally be made under Section 7 or Section 9 of the Indian Extradition Act, 19O3> to any country to which Section 19 of the Act and the Fugitive Offenders Act, 1881, was applicable.

When the case came on for hearing before a Full Bench consisting of (Sqma-sundaram, Ramaswami and Anantanarayanan, JJ., the Court expressed the following opinions.

Somasundaram, J.

6. I had the privilege of perusing the judgments of my learned Brethren Ramaswami and Ananthanarayanan, JJ. They have dealt with the point fully, ably and exhaustivelythat I do not think it necessary to add anything to it. I entirely agree with the opinion expressed by my learned Brethren.

7. The answer to the reference will be in the affirmative.

Ramaswami, J.

8. On a reference made by our learned brother Somasundaram, J., whether Chapter III of the Indian Extradition Act, 1903, continues to be applicable to this case of extradition from India to Ceylon, this Full Bench has been constituted by the learned Chief Justice.

9. The facts leading to this reference are : The petitioner Chockalingam Chettiar, a native of Karidavarayanpatti Village, Tiruppatur Taluk in Ramanathapuram District was employed as an agent of'Chetty' by the Gonakelle, El Teb and Damme-ria Estates. The practice is for the Superintendents of these Estates to draw cheques in favour of this Chockalingam Chettiar on the Imperial Bank of India and the Mercantile Bank of India at Colombo and Chockalingam Chettiar would cash those cheques and disburse the amounts to the labourers employed in the said Estates who apparently are mostly Tamilians. Three such cheques were issued by the respective Superintendents of these three Estates Messrs. Deaker, Percy and Horn. for a total sum of Rs. 1,10,000. It is the case for these Estates that the said Chockalingam Chettiar after cashing in the amounts dishonestly converted to his own use roughly Rs. 6o,ooo and decamped to his native place in India. Thereupon complaints have been given to the Colombo Police for an offence under Section 392 of the Ceylon Penal Code (corresponding to Section 409, Indian Penal Code) an extraditable offence and they have been investigated and a charge-sheet has been filed before the Chief Magistrate of Colombo. On account of this Chockalingam Chettiar having left for India, the Chief Magistrate, Colombo, recorded the evidence in his absence and has apparently reported the matter to the Government of Ceylon. The Government of Ceylon have sent a requisition to the Government of India for the extradition of this Chockalingam Chettiar. Thereupon, under instructions from the Ministry of External Affairs, Government of India, the Madras State Government, Home Department, in their Memo., dated 25th July, 1959, directed the Additional District Magistrate of Ramanathapuram to hold an enquiry and to report the result to the Government.

10. The accused Chockalingam Chettiar was apprehended by the issue of a warrant by Sri E.C.P. Prabhakar, I.A.S., and released on bail. The learned Magistrate supplied the accused with copies of all the documents on which the prosecution relied on 21st August, 1959. The accused at the next hearing was asked to explain the circumstances appearing against him as found in the requisition. The accused was represented by an advocate. On the examination of the accused being over, the Inspector of Police, Ceylon, who filed the charge-sheet before the Chief Magistrate of Ceylon was examined and cross-examined. The written statement of the accused was filed on 5th September, 1959 and both the parties closed their case.

11. The case for the accused was that for about 25 to 30 years he has been paying the salaries to the labourers and obtaining a commission from the management for the actual disbursements, that in December, 1954, his business failed, that he paid to the management whatever amount he had in the bank and came away to India as his wife was ill and that he did not go back because his visa had expired.

12. The learned Additional District Magistrate Sri Prabhakar found that from the evidence, both oral and documentary aprima facie case had been made out in support of the requisition and he committed the accused to prison awaiting the orders of the Central Government under the provisions of the Indian Extradition Act. A revision has been preferred by the accused Chockalingam Cbettiar and on a reference made by our learned brother Somasundaram, J., before whom the Revision came in the first instance, the matter is coming up before this Full Bench.

14. I agree with the judgment of my learned brother Anantanarayanan, J., but on account of the importance of the subject I shall add the following:

Extradition, as defined in Halsbury's Laws of England, Third Edition, Volume 16 page 560, is the delivery on the part of one State to another of those whom it is desired to deal witn for crimes of which they have been accused or convicted and are justiciable in the Courts of the other State. In 25 Corpus Juris, page 254, extradition has been defined to be the surrender by one State or nation to another of an individual accused or convicted of an offence outside of its own territory, and within the territorial jurisdiction of the other, which, being competent to try and punish him, demands the surrender. Similarly in 22 American Jurisprudence, page 244, Section 2. It, must be distinguished from transportation and from deportation, which also result in the removal of a person from the country.

15. The foundation of extradition, which is the delivery on the part of one State to another of those who have fled from justice, is founded on the principle that the reciprocal surrender of criminals is in the common interest of civilised communities : per Russell, L.C.J., In re Arton.

16. The early History of the practice of extradition in Roman Empire, England and France will be found set out in Sir Edward Clarke's Law of Extradition, Third edition Chapter II, page 16 and following (1888).

17. The basis and extent of extradition differ in different countries. The law of England with regard to extradition depends entirely upon statute. A fugitive criminal found in the United Kingdom may be surrendered to a foreign State only in accordance with the provisions of the Extradition Acts, 1870 to 1935 by proceedings which are authorised and regulated by those Acts. The Extradition Acts did not apply in the case of any foreign State unless Her Majesty so directs by Order in Council. The Acts extend to the Channel Islands and the Isle of Man as if they were part of the United Kingdon, and when applied to a Foreign State, unless the Order in Council otherwise provides, extend, subject to certain modifications, to every British possession (See Halsbury's Laws of England), Third Edition, Volume 16, page 560.

18. The basis and extent of extradition in the United States of America is set out in 25 Corpus Juris, pages 273 to 275 (Sections 52 and 53) as follows:

There is no obligation upon a Government, under the law of nations, to surrender fugitive criminals to a foreign power, and the sovereign power upon which demand is made may exercise its discretion and may investigate the charge upon which the surrender, is demanded. In the United States it is well settled that independently of statutory or treaty provision, no authority exists in any branch of the government to surrender a fugitive criminal to a foreign government, although in 1864 Mr. Seward, Secretary of State of the United States, with the sanction of President Lincoln, directed the arrest of a fugitive from Cuba as a purely executive act in a case in which this country had no extradition treaty with the country from which the criminal had fled and there are text-Writers and dicta in some cases which assert that it is the duty of one nation to surrender fugitive criminals upon the demand of another nation, especially in the case of the more heinous offenders as a matter of international comity in the absence of treaties. It is the present doctrine in England and Canada that the extradition of a fugitive criminal cannot be granted in the absence of specific legal authority. As the United States does not surrender fugitive criminals in the absence 01 treaty stipulation, its practice is to decline to request extradition from a foreign Government with which this Government has no treaty providing for surrender, although there are isolated cases in which this Government has requested of foreign governments the surrender of fugitive criminals as an act of comity, but in these cases, the request has always been accompanied by the statement that under our law reciprocity cannot be granted. As no authority exists in any branch of this government to surrender a fugitive criminal in the absence of a treaty stipulation extradition can be granted, where a treaty exists, only for an offence enumerated in the treaty and this government will request extradition from a foreign Government only for an offence included in the treaty; and the same rule of law has been laid down by the Canadian Courts, although there appears to be some authority for the doctrine that the existence of an extradition treaty between two countries does not prohibit the surrender by either Government of a person charged with a crime not enumerated in the treaty. Where a person charged with a crime not provided for by treaty is delivered to the authorities of the United States as an act of comity, such person is not entitled to be discharged on habeas corpus and none of his personal rights has been violated. It is within the power of Congress to provide by statute for the extradition of fugitives from the justice of a foreign country without regard to any reciprocal treaty obligation, and this power is not affected by the character of the criminal procedure of the foreign country or by the fact that the alleged offender is a citizen of the United States.

International extradition in the United States is based on treaty stipulation. The United States has treaties of extradition with most governments. A treaty stipulation on the part of the Government of the United States to surrender fugitives from justice is a lawful stipulation, and within the authority of the treaty making power. The treaties of Great Britain with the United States have been extended to include the surrender of the fugitive offenders between the State of North Borneo and the Philippine Islands or Guam.' (See also 22 American Jurisprudence, page 244--Basis of Right of Extradition.)

19. There is an interesting study of Extradition on the Soviet Union and Eastern Europe in the recent two-volume publication 'Government, Law and Courts in the Soviet Union and Eastern Europe' published by Stevens & Sons, Limited, London, and edited by Vladimir Gsovski and Kazimierz Grzybowski (1959). The provision in the Soviet Law dealing with extradition is Para. 2 of Section 16, 'Basic Principles of Criminal Procedure of the Union and the Soviet Republics.' It reads:

Section :6 (para. 3).--The extradition of persons against whom the investigation is pending or who are committed for trial or convicted by judicial bodies and whose extradition is requested by a foreign government from the Government of the U.S.S.R. shall be permitted only in cases and in the manner established by the treaties, agreements and conventions of the U.S.S.R. with foreign Governments, or by a special agreement of the Government of the U.S.S.R. with foreign Governments, as well as by a special law, enacted in the form of federal legislation.

20. The Soviet Union has entered into treaties with their associate States of Eastern Europe from 1957.

21. Closely akin to, though not in strictness part of the law of extradition, is the question of the surrender of fugitive offenders between different possessions of the former British Empire.-

22. Prior to the Extradition Act, 1870, (33 and 34 Viet. Ch. 52) there was no general Statute giving legal validity to extradition treaties concluded with Foreign States by His Majesty the King, and a separate Aqt had to be passed on the occasion of each new treaty. This Statute, as subsequently amended--it was the subject-matter pf a review by Royal Commission appointed in 1877 consisting of eminent jurists like Cockburn, Seiborne, Esher, etc., has been the foundation of the law of extradition for the whole British Empire, except in the case of Canada where by Order in Council, dated 6th July, 1907, issued under Section 18 of the Act, the operation thereof in Canada was suspended so long as Part I of Chapter 155 of the Revised Statutes of Canada 1906, and (now the Revised Statutes of Canada, 1953, c. 322) continues in force.

23. The Extradition Acts of 1870 to 1935 did not apply in the case of any foreign State unless Her Majesty so directs by Order in Council. The Acts extend to the Channel Islands and the Isle of Man as if they were part of the United Kingdom, and when applied to a Foreign State unless the Order in Council otherwise provides, extend, subject to certian modifications, to every British possession. Where an arrangement has been made with any Foreign State with respect to the surrender to that State of any fugitive criminals, the Order in Council applying the Extradition Acts to that State or any subsequent Order,1 may be limited in operation and may be restricted to fugitive criminals who are in, or suspected of being in, the part of Her Majesty's Dominions specified in the Order and its operation may be subject to conditions, exceptions, and qualifications. The Order mustrecite or embody the terms of the arrangement and will hot remain in force for. a longer.period than the arrangement. Every Order must be laid before Parliament and must be duly published.

24. The application of the Act of 1870 to British possessions outside the United Kingdom has been provided for by Section 17, while Section 18 provides fdr the saving of laws of British possessions, which was amended in relation to India by the Gpyernment of India Adaptation of Acts of Parliament Order, 1937 S.R. & O. 1937 No. 230, Article 2 and Schedule Part II, see now the Indian Independence Act; 1947 (10 and 11 Geo. VI, C. 30, Section 18(1)(2), Halsbury Third Edition, Vol. 5, page 68). By an Order in Council, dated the 7th March, 1904, published in the Manual of Procedure Relating To Extradition, corrected up to 1st December,; 1940, Third Edition (Published by Authority, at page 86, it was declared that Chapter II of the Indian Extradition Act will have effect in British India as if it were part of the Extradition Act, 1870: Vide Section 18 of that Act). This Chapter was intended to substitute the Indian Procedure for that contained in Sections 7 to 12 of the Extradition Act, 187O.

25. Section 23 of the Extradition Act, 1870, printed at page 52 of the Manual (ibid) runs as follows:

Nothing in this Act shall affect the lawful powers of Her Majesty or of the Governor-General of Indiaa (or, as the case may be, of the Governor of Burma) b to make treaties for the extradition of criminals with Indian Native States, or. with other Asiatic. States coterminous with British India, (or with Burma) or to carry into execution the provisions of any such treaties made either before or after the passing of this Act.

26. Section 25 states:

For the purposes of this Act, every colony, dependency and constituent part of a foreign State, and every vessel of that State, shall (except where expressly mentioned as distinct in this Act) be deemed to be within the jurisdiction of and to be part of such foreign State.

27. To recapitulate the application of the Extradition Acts of the United Kingdom to British possessions, in the language of Halsbury

When the Extradition Acts are applied by Order in Council under any treaty, unless by such order it is otherwise provided, they extend to every British possession J but with certain necessarym odi-fications in procedure2 which are stated subsequently. This, however, is subject to a saving for the laws of British possession under which the operation of the Extradition Act, 1870, may be suspended, or the law of the British possession may be given effect as part of the Act. Moreover, no Act of the United Kingdom Parliament passed since the Statute of Westminister, 1931, extends to a'dominion3 as part of the law of that dominion unless it was expressly declared in the Act that the dominion had requested and consented to the enactment thereof.

But if by law or ordinance1 of the legislature of any British possession, provision is made for the surrender of fugitive criminals to foreign countries, the operation of the Extradjtiqn, Acts'.may be suspended6 by Order in Council or the.law or ordinance may be directed,to;hayejeffect as. if it were part of the Extradition Act.6

(1) By Section 26 the term British possession means any colony, plantation* island, -territory, or settlement within Her Majesty's dominions, and :not within the United Kingdom, the Channel Islands, and the Isle of Man; and all colonies, plantations, islands, territories, and settlements under one legislature are deemed to be one British possession. Until the federal legislature, by law provides otherwise, the Extradition-Acts, 1870 to 1935, have effect ira relation to the Federation of Rhodesia and Nyasaland as if there were no federal legislature for these territories : see the Federation of Rhodesia and Nyasaland (Constitution) Order in Council, 1953-, S.I. 1953 No. -199, Section 13(1).

(2) The Republic of Ireland (formerly the Irish Free State) is no longer part of Her Majesty's dominions (Ireland Act, 1949 (13, 13. and 14, Geo. 6, c. 41), Section 1(1), but. until the United. Kingdom Parliament or some' other competent authority, provides to the contrary, any enactment made before 2nd June, 1949, in so far as it operates as part of the law of any part of the United Kingdom, or: colony, protectorate or trust territory of the United Kingdom, is construed bo that references in' Hie1 enactments to the territory which is or includes the Republic of Ireland shall continue to refer -to; it or so'as to include it; Section 3(2) (a).

(3) This means Australia, Canada (including Newfoundland) Ceylon, India,. New, Zealand, Pakistan and the Union of South Africa.

(4) Statute of Westminister, 1931 (22 and 23 Geo. 5, c. 4) Section 4. Tile provisions of that section have been followed'in recent orders in Council applying the Extradition Acts to foreign States.- and separate orders in Council have been made applying the Acts, as regards thq dominions to. the foreign states. Orders in Council mentioned above as relating to India relate also to Pakistan); see the Indian Independence Act, 1947(10 & 11 Geo. 6, e. 30), Section 18(1) India amd Pakistan have become Republics while remaining members of the Commonwealth, but until provision. to the contrary is made by the authority having power to alter the law all existing law has the same operation in India and Pakistan as if they had' not become Republics : see the India (Consequential. Provisions) Act, 1949 (12, 13 Geo.:6, c. 92), Section 1, (1), and the Pakistan (Consequential Provision) Act, 1956 (4. & 5 Eliz,

2. c, 31), Section 1(1)

(5) The operation of the Extradition Acts has been suspended in Canada so long as Part I of Chap. 155 of the Revised Statutes of Canada (now the Extradition Act, Revised Statutes of Canada, 1952, c. 322) continues in force (Ordeir in Council dated 6th July, 1907, Si R. & O. 1907 No.J 546), By proclamation dated 28th May, 1952 made under Section 18(2) of the British,North American Act, 194.9, (12, 13 & 14 Geo. 6, c. 22) and published in the Canada Gazette, 1952, Part II, p. 502, the Canadian Extradition Act applied to Newfoundland.

(6) Ceylon (Order in Council dated 4th February, 1878; India' (Consequential Provisions) Act, 1949, Pakistan (Order in Council dated 21 st November, 1895,S.R. & O. 1895N0. 568, 7th March, 1904. S.R. & O., 1904 No. 317, Indian Independence Act, 1947 (10 & 11 Geo. 6, c. 30). Section 18.

28. The question ay the surrender of the fugitive offenders between the various possessions of the British Empire was also subject to Imperial Statute, viz.', the Fugitive Offenders Act, 1881, 44 and 45 Viet. & 69 and' as in the case of the Extradition Act, 1870, provision has been made by Section 32 thereof for the recognition of Acts of the legislatures of British possessions providing for the application and carrying into effect within those possessions of the Act in question. In the case of British India, this power has been exercised by the Order in Council, dated the 7th March, 1904, recognising Chapter IV of the Indian Extradition Act, 1903, and declaring that it should be given effect to through out His Majesty's dominions and on the high seas, as if it were part of the Fugitive Offenders Act, 1881.

29. Part I of the Act provides the procedure similar to that under the Extradition Act, 1870, while Part II provides a more rapid procedure within the groups of British possessions to which that part has been applied by Order in Council. In regard to the application to British dominions, Halsbury has the following to say, (Vol. 16, page 383.)

For the purpose of the Act the United Kingdom, the Channel Islands, and the Isle of Man form one part of Her Majesty's dominions; and a British possession is any part of Her Majesty's dominions exclusive of the United Kingdom, the Channel Islands and the Isle of Man. All territories and places within Her Majesty's dominions which are under one legislature are deemed to be one British possession and one part of Her Majesty's dominion.7 The Act remains in force as part of the law of the Republic of Ireland.

(7) Fugitive Offenders Act, 1881. The Act remains in force as between the United Kingdom and the Republic of India (Re. Government of India and Mubarak AH Ahmed., (195a) I All E.R. 1060 applying the India (Consequential Provision) Act, 1949 (12, 13 & 14, Geo. 6, c. 92).

30. The Indian Legislature enacted the Indian Extradition Act of 1903. Its history falls into three parts (1) 1903 to 1947; (2) 1947-1950; (3) 1950 upto date. I shall follow this division in examining its provisions.

31. The English Extradition Acts have been justly praised. Piggott (C.J. Hongkong) in his 'Extradition' preface remarks:

The Extradition Act stands, I think as a monument of successful draftsmanship, it has so established itself that almost one has come to believe it could take rank as a doctrine inherent to scientific law-making. The successful statute makes little fuss, causes little arguments in the Courts. And judged by the standard (the brevity of the case-law arising under it), this statute must be pronounced to be very successful.

30. Part one.--The Indian Legislature in enacting the Indian Extradition Act, 1903, has, in addition to the modifications of these Imperial Statutes in their application to British India in a manner necessary to adapt them to the circumstances of this country, also provided for cases not covered by the Imperial Statutes. It will be convenient to summarise the provisions of this Act, which is made up of provisions which fall into several classes.

(1) The provisions of Chapter II which are part of the Extradition Act, 1870, and deal with the surrender of fugitive criminals to Foreign States to which that Statute applies.

(2) The provisions of Chapter III which deals with the surrender of fugitive criminals to States other than those to which that Statute applies.

(3) The provisions of Chapter IV which deals with the application of the Fugitive Offenders Act, 1881, to British India and are strictly not part of the law of extradition proper at all.

(4) The provisions of Chapter VI which provide for the execution of commission issued by criminal Courts outside British India which is also a subject outside the strict scope of the law of extradition.

31. In applying the provisions of Chapter II of the Indian Extradition Act, 1903, therefore, the fact must always be borne in mind that these provisions are part of the general extradition law of the (former) Empire. As has been pointed out above, the provisions of Chapter III only apply to those States to which the Extradition Acts of 1870 and 1873 do not apply, that is, to those States in respect of which His Majesty in Council has not made an Order in Council under Section 2 of the Extradition Act, 1870. The provisions, therefore, of that Chapter constitute express statutory provision applying to British India only for the extradition of criminals in cases not provided for by the general extradition law of the (former) Empire.

32. It may be convenient here to exhibit in tabular form as : Muddiman has done in his Law of Extradition (1914 Edition), a general conspectus of the law regarding the rendition of offenders from British India.

33. Rendition of Fugitive Offenders,

1. States outside the Empire. Law applicable.

(a) to States where the Extradition The Extradition Act, 1870 and Chapter II of the

Statutes apply. Indian Extradition Act, 1903.

(b) to States where they do not apply. The Indian Extradition Act, 1903, Chapter III.

2. British possession:

The Fugitive Offenders Act, 1881, and Chapter IV of the Indian Extradition Act, 1903.

34. Certain Sections of the Indian Extradition Act may now fitly engage our attention. That examination will show that this Act is not an arbitrary or capricious imperialistic piece of legislation but is on the other hand the careful product of a striving between what is due by way of reciprocal international courtesy to achieve the common objective of suppression of crime and what is due by way of protection of one's own citizens before being delivered up for trial in a foreign country whose laws they were accused of having broken. The Act while maintaining the rights of the individual as far as possible, does not overlook the rights which the public and the State are entitled to claim. Thus the Extradition Act is a harmonious combination of what is agreeable to our Constitution and laws and the voluntary exercise of the power to surrender a fugitive from justice to the country from which he has fled and which it has been said 'it is under a moral duty to do so'. (22 Am. Jurist, page 245) citing Factor v. Laubenheimer L.R. (1896) 1 Q..B. 108.

35. The objects of the Indian Extradition Act are stated as follow:

(a) to provide for the more convenient administration of the Extradition Acts, 1870 and 1873, and of the Fugitive Offenders Act, 1881 (in British India, omitted by A.L.O. 19.50).

(b) to amend the law relating to the extradition of criminals in cases to which the Extradition Acts, 1870 and 1873, do not apply.

36. In Section 2 (c) ' Foreign State ' is defined as meaning 'a State to which for the time being, the Extradition Acts, 1870 and 1873 apply '. In other words, in course of time States included would get excluded from this category and States not included may get included in this category. The heading of Chapter II is.'Foreign States' the heading of Chapter III is ' Other than Foreign States ', the heading of Chapter IV is 'Dominions' and the heading of Chapter V is ' At Sea '. Section 2 (b) defines 'extradition offence' as meaning 'any such offence as is described in the First Schedule ', and can be equated to Section 26 of the English Act wherein it is stated that the term ' extradition crime 'means'a crime which, if committed in England or within English jurisdiction, would be one of the crimes described in the First Schedule to this Act'. Chapter II of the Indian Act, Sections 3 to 6 deals with surrender of fugitive criminals in case of foreign States. But in regard to Chapter III, Sections to 18, surrender of fugitive criminals in case of States other than foreign States, the expression ' extradition offence ' is defined in Section 2 (b) and Schedule I. Thus, between Chapter II and Chapter III, all possible permutations and combinations of the countries in the world are dealt with, provided that any. demanding State must either be a 'Foreign State' or 'not a Foreign State'.

37. Section 3 is the most important section and in reference to which several terms have to be carefully considered.

38. The 'requisition' need not be in any particular form but it should be accompanied by some evidence that the person whose surrender is demanded is a fugitive criminal of the State making the demand. It may be made by a diplomatic representative of the State asking for the surrender or by any person recognized by the Government of India as the Consul-General, Consul or Vice-Consul or (if the fugitive criminal has escaped from a colony or dependency of the Foreign State. on behalf of which the requisition is made) as the Governor of such colony or dependency.

A fugitive criminal of that State' means a person accused or convicted of an extradition crime committed within the jurisdiction of that State, c.J., Section 26, Extradition Act, 1870.

38. In order to constitute an extradition crime defined in Section 26 of the English Act, it is not essential that the fugitive should be a subject of the State which demands his extradition. Unless there are treaty arrangements to the contrary, a requisition by State B for the surrender of a subject of State A who committed a crime in State B and has fled to State C, is valid. It is not even necessary that the person accused of an extradition crime should have been ill the Foreign State at the time the crime was committed : R. v. Ganz 290 U.S 276 : 78 L.Ed. 315.

39. Accessories equally with principals are liable to be surrendered': see Section 3, Extradition Act, 1873.

May if it thinks fit ' : The words are permissive; but if the law and the treaty provisions are complied with, it seems that the order would be as of course.

Issue an order' : The only Government competent to issue the order for enquiry is the Government to which the Foreign State has made the requisition : Per Mookerjee, J., in Rudolf Stallman (1911) I.L.R. 39 Cal. 164

Such evidence as may be produced ' : It is the duty of the Magistrate to hear evidence on behalf of the fugitive criminal. If the Magistrate does not give the fugitive criminal an opportunity of defence this is not a mere irregularity but goes to the jurisdiction of the Magistrate. RudolfSla.llman2, Mansur Khachar v. Ram Khachar (1907) 4 Cri. L.J. 136.

A prima facie case' : c.f. Section 10 of the Act of 1870. Such evidence (subject to the special provisions of the Act) as in the case of a fugitive criminal accused of an extradition crime would justify his commitment for trial if the crime had been committed within the local limits of the Magistrate's jurisdiction.

40. Reference to High Court; Provision is made for reference to the High Court where the report of the enquiring Magistrate or the written statement of the accused raises an important question of law. It cannot be regarded as a substitute for the right to apply for a writ of habeas corpus and on which topic see D.M., Trivandrumv. K.C. Mamman Mappillai 4.

41. In regard to the enquiry by the Magistrate two matters should be referred to, viz., (1) pleas open to the arrested person and the judicial determination of the same and (2) Revision by the High Court. When an accused has been arrested and produced before the District Magistrate or the Chief Presidency Magistrate, as the case may be, such a Magistrate has to record any statement made by the accused. At this stage the accused may (1) point out to the Magistrate that the warrant does not, on its very face, fulfil the requirements of Section 7; (2) allege that he is not person directed to be arrested, under the warrant; (3) point out that the warrant has not been executed according to law; and (4) apply under Section 8-A and pray that a report may be made to the Central Government for the cancellation of the warraut and that he may be released under the provisions of Section 15. When the accused does so, the Magistrate is called upon to decide the points raised before him judicially and in the last three cases mentioned above may have to take evidence on oath. When he decides any of the points raised by the accused, it is a judicial order and as such open to revision by the High Court; H.K. Lodhi v. Shyam Lai : AIR1948All129 , as it is a valuable right of a citizen that he should not be sent out to a foreign jurisdiction without the law relating to extradition being strictly complied with. The decisions are uniform that a Court must give a strict interpretation to the provisions of the Extradition Act : Ram Par Gas v. Emperor : AIR1948All129 , Emperor v. Guilt A.I.R. 1914 Cal. 22, Santabir v. Emperor : AIR1935Cal122 .

42. The term ' Political Agent ' in Section 7 has to be read with Section 3(40) of the General Clauses Act, and includes a principal officer representing the Government in any territory or place beyond the limits of British India and any officer of the Government of India or of any Local Government appointed by the Government of India or the Local Government to exercise all or any of the powers of a Political Agent for any place not forming part of British India under the law for the time being in force relating to foreign jurisdiction and extradition : Hadibandhu Padhah v. Emperor (1947) 48 C.L.J. 40. The Political Agent in all cases before issuing warrant has to satisfy himself by preliminary enquiry or otherwise that there is a prima facie case against accused : C.P. Mathen v. D.M., Trivandrum .

43. The enquiry to be held under Section 9 has already been referred to when dealing with Section 3. The Statement of Objects and Reasons states:

Clause 9.--In order to meet, the case of other than Foreign States we have by this clause applied to such States the provisions of Clause 3 of our revised Bill, which were of general application in the Bill as introduced. The clause further makes it a condition that, where there is a Political Agent in or for any such State, the requisition for the surrender of the accused person must be made through the Agent '. (Select Committee's Report).

44. When neither a warrant nor a requisition has been received, the Magistrate is empowered to issue a warrant under Section 10. It is an essential ingredient of this procedure, that there should be a warrant. Under Section 10 the jurisdiction is distinctly conferred on the Magistrates in British India to make preliminary enquiries and to take evidence on the information given or complaint laid in regard to the offence alleged to have been committed by the native Indian or British subjects of His Majesty within and beyond the limits of British India not being a foreign State as defined in the Act and to order warrant to issue for arrest of such accused persons.

45. Section 18 lays down:

Nothing in the Chapter shall derogate from the provisions of any treaty for the extradition of offenders, and the procedure provided by any such treaty shall be followed in any case to which it applies, and the provisions of this Act shall be modified accordingly.

46. Therefore, nothing in Chapter III of the Act shall derogate from the provisions of any treaty, that is, it incorporates in effect provisions of such treaty in the Municipal Courts of India. When therefore the treaty says that offenders shall be extradited on demand, it is not open to a Municipal Court to say that they shall not be delivered up until some form of procedure, initiated, prescribed and sanctioned by itself alone and not agreed upon by the contracting parties is satisfied : Muthu Reddi v. Emperor A.I.R. 1930 Mad. 981. The Extradition Act is the law of land, not so far as the Third Chapter is concerned, to be applied for this or that country by Order in Council or by any special means. If some special procedure has been arranged by treaty, Section 18 of the Act provides that it may be followed; but if the Government chooses to exercise the powers given by the Act, no Municipal Court can interfere on the ground that the Government had undertaken to act otherwise by treaty; Moonga Lai v. Emperor : AIR1933Pat295 . In other words, a Government or State is entitled if it so wishes to hand over persons subject to the law of another State, at the request of that State. All that the section provides is that the Act shall not work against the will of either party so as unduly to impose any liability on such party. It does not prevent their co-operation in a friendly action according to the comity of nations : Jamna v. Emperor : 1950CriLJ1153 .

47. The discussion of the provisions of the Sections of the Indian Extradition Act can be completed by citing an extract from the Statement of Objects and Reasons:

The present Bill is exclusively confined to the subject of extradition. The legislation required in this country has to make provision for the extradition of criminals in cases of two different kinds. The Government here may, in the first place, be asked by a friendly State to surrender a person in fulfilment of the obligations imposed by a treaty to which the Extradition Act, 1870 (33 & 34 Viet. c. 52) applies; and, where this is so, it seems expedient that the provisions of the English Statute and more especially those which are intended for the protection of accused persons--should be followed as closely as may be. In the second place, the surrender of an accused or convicted person may be sought by a Native State in India, or by a neighbouring Asiatic State, in pursuance of the terms of a treaty or a friendly understanding to which the Government of India is a party; and in such a case, it is desirable and sufficient that the procedure prescribed should be both simple and expeditious. The distinction has been observed in the present Bill.' (See the Statement of Objects and Reasons, Gazette of India, 1901 Part V, page 24, printed at page 1073 of the M.L.J. Criminal Court Manual Central Acts (Minor Acts) Vol. Ill and pages 4024-4025, Vol. 4, A.I.R. Manual (Civil and Criminal.)

48. Turning to the Fugitive Offenders Act, Halsbury has the following to say:

The Courts in any part of Her Majesty's dominions have jurisdiction to cause the return of a fugitive offender to any other part of those dominions, including the United Kingdom, where he is accused of an offence to which Part I of the Fugitive Offenders Act, 1881, applies. A Judge of a superior Court or the Governor of a British possession may endorse the warrant, if satisfied that it was issued by the proper authority, for the apprehension of the fugitive, who may then be taken before a Magistrate. A Magistrate there may issue a provisional warrant of which he must send a certified copy, with a report of the case, to the Governor. The jurisdiction to hear a case and to commit a fugitive to prison to await his return is exercised in a British possession by any Judge, justice of the peace or other officer having the like jurisdiction as one of the metropolition police magistrates at Bow Street, or by such other Court, Judge, or Magistrate as may be named for the purpose of local legislation. After the completion of Court proceedings, the Governor may, if he thinks it just, issue a warrant for the return of the fugitive, but if the fugitive has not left within a month a superior Court may, unless cause is shown to the contrary, order him to be discharged from custody.

49. Part I of the Fugitive Offenders Act, 1881, applies to treason, piracy and every other offence, however classified, which is for the time being punishable, where committed, by imprisonment with hard labour for twelve months or more or by any greater punishment. A superior Court has power to release a fugitive where the case appears trivial or his return would be unjust.

50. Part II of the Fugitive Offenders Act, 1881, provides that in groups of contiguous British possessions to which that part may be applied by Order in Council, a more rapid procedure for the return of fugitive offenders between possessions in the same group may be in force. The warrant is ' backed ' in the possession in which the fugitive is found and he is sent for trial without any hearing in that possession.

51. There is power to extend the provisions of the Fugitive Offenders Act, 1881, by Order in Council. to any place under the protection of Her Majesty and to any place where Her Majesty has jurisdiction, as if it were a British possession.' (Halsbury's Laws of England, Third Edn., Vol. 5, pages 679-80.)

52. To sum up for extradition from Britisn India, the procedure to be adopted for securing the extradition of a fugitive offender varied according to the class of State which sought to obtain the 'surrender. The first division was into (i) States to which the Extradition Acts, 1870 and 1873, applied and (ii) States to which the Extradition Acts, 1870 and 1873, did not apply.

53. The States to which the Extradition Acts applied are by Section 2 (b) of the Indian Extradition Act, 1903, for the purpose of that Act, defined to be 'Foreign States '. They are the foreign countries with which the English Crown had concluded extradition treaties, and to which the Extradition Act has been applied by Order in Council under Section 2 of the Act of 1870. A separate list of these countries with the date of the treaty and the Order in Council applying the same, so far as India is concerned, is given in Appendix B of Muddknan's 'Law of Extradition' (1914 Edition), and a Hat is given in Halsbury's 'Laws of England', (Vols. 5 and 16) and the substance of these treaties themselves is reproduced in Piggott's ' Law of Extradition,' Appendix II, page 25 and following. It will be seen that it includes all the free civilised nations. The procedure to be adopted on an application by a State of this class is that laid down in Chapter II of the Indian Extradition Act, 1903. In the case of States to which the Extradition Act did not apply, i.e., States which are not Foreign States for the purpose of the Indian Extradition Act, 1903, a further division must be made, viz., (1) Staces with which there is a treaty and (ii) States with which there is not a treaty. Section 18 provides that where a treaty is in force, the procedure laid down therein shall be followed, and that the procedure laid down by Chapter III of the Indian Extradition Act shall be modified to that extent. Where there is a treaty, it is necessary to consult its provisions. Where no treaty exists, then the procedure laid down in Chapter III of the Indian Extradition Act, 1903, must be followed; but here again States can be divided into (i) States where there is a Political Agent in or for such State; and (ii) States without such an officer. In the case of the first class alternative procedures are available viz-, () to apply to the Political Agent for the issue of a warrant under Section'7 of the Indian Extradition Act, 1903, or (b) to make requisition to Government for surrender under Section 9 of that Act. In the case of the second class only the latter procedure is available. Besides these two categories, we have the Fugitive Offenders Act. Section 36 of the Fugitive Offenders Act, 1881, allowed that Act to be applied by Order in Council, subject to such conditions, etc., as may be specified, to any place outside the dominions of the Grown in which the Crown exercises jurisdiction; and where such an order has been made the surrender of persons who have fled to British India will be regulated by the Act read with the Order in Council.

54. Thus, we arrive at this position, viz., that at the time of the passing of the Indian Extradition Act, 1903, there were three enactments side by side, viz., (1) Parliamentary Extradition Act applicable with English Treaty and Order in Council; (2) Indian Act, Chapter III, applicable for any country to which item I does not for the time being apply; and (3) Fugitive Offenders Act.

55. Thus, the correct view is that the English Extradition Act, Chapter II and the Indian Extradition Act, Chapter III, exhaust all the countries. The Fugitive Offenders Act is a special Act which made special provision for one category out of Chapter III. Chapter III is the genus (not foreign States and Fugitive Offenders) and Chapter IV is the species, prescribing a special procedure for British possessions formed into a group by reason of their contiguity or otherwise.

56. As Chapter III would apply to any country in the world so long as the Parliamentary Extradition Act does not apply, it is a complete Indian enactment on the subject of extradition supplementing, the Parliamentary Extradition Act wherever the latter is not applicable or even becomes not applicable. We have to bear in mind the significant words ' Foreign States for the time being'.

57. In this connection three points have got to be noted. The Preamble of the Indian Act states that it is an Act to amend the law in cases to which the Parliamentary Extradition Act does not apply for the time being. The words ' for the time being ' make the meaning of Foreign State ambulatory and as a necessary result make the meaning of the words 'State not. being a Foreign State', in Sections 7 and 9 ambulatory. On this basis the Fugitive Offenders Act is a law relating to a species, viz-, British Dominions, out of the genus being tne larger category, namely, any State not being a State to which the Parliamentary Extradition Act, applies.

58. In these circumstances, the logical conclusion is that Dominions also are within the ambit of Chapter III. The reason why the Fugitive Offenders Act is applicable to Dominions was because it is a special provision relating to Dominion. But for this provision these Dominions also would be within the ambit of Chapter III.. Therefore, when a special provision fails, because the Fugitive Offenders Act is held inapplicable to India after 1950, the case of Dominions would be governed by Chapter III.

59. Part Two.--The Indian Independence Act of 194.7 provides that in consequence of the setting up of the new Dominion of India as from the appointed day, His Majesty's Government in the United Kingdom will have no responsibility as respects the Government of any of the territories which immediately before that day, were included in British India and that no Act of Parliament of the United Kingdom passed on or after the appointed day shall extend or be deemed to extend to the new Dominion, unless it is extended thereto by a law of the Legislature of the Dominion. No Order in Council made on or after the appointed day under any Act passed before the appointed day, and no order, rule or other instrument made on or after the appointed day under any such Act by any United Kingdom Minister or other authority, shall extend or be deemed to extend, to the new Dominion as part of the law of that Dominion. Therefore, the British Government cannot bind us by reason of anything done after the appointed day regarding extradition. Now the Indian Independence Act, 1947, and the Government of India Act, 1935, together with all the enactments amending or supplementing the latter Act, were repealed under Article 395 of the Constitution of India. But Article 372 of the Constitution continues, subject to the other provisions of the Constitution, all the laws in force in the territory of India immediately before the commencement of the Constitution. Such laws include personal laws like those governing the Hindus, and Mohammadans. It should, however, be observed that to the extent that the laws thus continued contain provisions inconsistent with or repugnant to the Fundamental Rights guaranteed in Part III of the Constitution, those provisions would be treated as repealed and inoperative by reason of Article 13 of the Constitution. By virtue of Clause (2) of Article 372 of the Constitution of India, the President made the Adaptation of Laws Order, 1950, published in the Gazette of India, Extraordinary, page 449, dated the 26th January, 1950. The Indian Extradition Act was one of those Acts so adapted.

60. Part Three.--Subsequenty in The State of Madras v. C.G. Menon and Anr : 1954CriLJ1322 , the Supreme Court had to consider the continued applicability of the Fugitive Offenders Act, 1881, which was applicable to India as a British possession prior to Independence : see Section 12. By Orders in Council under this enactment, British India as a British possession was grouped along with Ceylon, etc. Within this group special provision was made for the backing of warrants for the arrest of offenders. The question which was considered by the Supreme Court was whether a warrant issued by a Magistrate in Malaya could be executed without any enquiry on an endorsement of a Magistrate in Madras. Their Lordships answered the question in the negative. In this connection the decision in Re: Government of India 2, may be referred to. It related to the motion for the issue of a writ of habeas corpus by a Pakistani national. The applicant had been charged with having committed forgery in India and while the trial was proceeding in Bombay, he broke his bail and fled to Pakistan and thence went to England. At the instance of the Government of India, the Metropolitan Magistrate at Bow Street, arrested the applicant under the provisions of the Fugitive Offenders Act, 1881, and the motion for the writ was grounded on the contention that the Fugitive Offenders Act, 1881, ceased to govern the relations between India and the United Kingdom when the former became a Republic, though continuing as a member of the Commonwealth. This contention was rejected and the application refused by a Divisional Court, the judgment being delivered by Goddard, CJ. The learned Chief Justice referred to the Order in Council of 1904, issued under Section 12 of the Fugitive Offenders Act, applying the Act to India when it was then part of the Sovereign's dominions and to the changed status of India, a Republic and added that the Act continued to operate by virtue of Section 1(1) of the India (Consequential Provisions) Act, 1949, which provided for the continuance of all existing laws, until provision to the contrary was made by the authority having power to alter the law to have the same operation in relation to India and to persons and tilings in any way belonging to or connected with India, as it would have if India had not become a Republic. He, therefore, held that the Magistrate had jurisdiction to effect the arrest.

61. Having examined the provisions of the Indian Extradition Act its scope and operation from 1903 to 1947 and 1947 to 1950 and 1950 down to Menon's Case1 let me examine the five contentions of Mr. T.M. Kasturi in support of his submission that the Extradition Act in so far as it applies to rendition of fugitive offenders to a fresh Government is ultra vires and the enquiry of the petitioner based upon G.O., dated nth April, 1956, is not legal.

62. The first contention of Mr. T.M. Kasturi is that the Parliamentary enactments which applied to British India should be held to be inoperative in India after India became a Republic on a proper construction of Section 18(3) of the Indian Independence Act. It is unnecessary for us to discuss this contention at great length, because on a similar contention in regard to another Act containing similar provisions, Indian Copyright Act (III of 1913), Rajagopala Ayyangar,J., in Macmillan & Co. v. Little Flower Co., (1952) 1 All E.R. 1060 has negatived this contention. In regard to the Indian Independence Act, by Section 6, Clause (4), Acts of Parliament made on or after the appointed date (15th August, 1947) were not to extend to the Dominions as part of the law of that Dominion. This phrase ' part of the law of the Dominion ' refers to Parliamentary enactments which extend to India and therefore, are part of the law of India. The contrast may be seen in Section 18 which preserves existing laws and corresponds to Article 372 of the Constitution. Clause (1) of Section 18 refers to Act of Parliament made before the 15th August, 194.7, which operates otherwise than as part of the law of British India and provides for adapting them. Sub-section (3) continues the ' Law of British India '. Therefore, with reference to Parliamentary enactments made before 15th August, 1947, they are classified by the Independence Act into those which operate as part of the law of India, that is, laws which by their own force extend to India and others which operate otherwise than.: as part of the law of British India. Thus, all Parliamentary enactments which are' part of the law of India continue in force in India under Section 18(4) of the Indian Independence Act. Those which would have effect in England but are not part of the law of India would in their application to India have to be construed with reference to the division of India into two Dominions.

63. Even after 15th August, 1947, Paliament can make laws which would in England have effect with reference to Indian matters. They would be laws operating otherwise ihan as part of the law of India. Illustrations of this are : The Citizenship Act, 1949, in its impact on Indians; the India and Burma Consequential Provisions Act, 1949.

64. Then when the Constitution of India came into force on 26th January, 1950, it did not mean that the laws which existed in India prior to the Constitution, notwithstanding that they trace their origin to either Indian Legislatures constituted under British enactments or enactments of British Parliament which either extended of their own force or were made applicable by ancillary Indian Legislation, stood automatically wiped out. Article 372 of the Constitution provided for the continuance in force of the existing laws. The reference to the law-making bodies in the. definition of existing law in Aritcle 366(10) of the Constitution is wide enough to include an outside body like the Parliament of the United Kingodm. It is an accepted view in International Law that the emergence of a new State or change of sovereignty in a State does not bring about a break or interregnum in law. A law once established continues until changed by some competent legislative power. It is not changed merely by change of sovereignty: (Hyde in his 'International Law', at page 397). Once created it persists until a new sovereign by a legislative Act creates a change : see also Armstrong v. Wickland (1934) 2 L. R. 139. India continues to be a member of the Commonwealth and the Court should not so adapt the Indian Extradition Act, 1903, as to eliminate the provisions in the enactment worked into it, merely because those incorporations operated by virtue of tne legislation of the United Kingdom. Therefore, Chapter III of the Indian Extradition Act will continue to operate until the Indian Legislature chooses to legislative on the subject.

65. The next contention of the learned'advocate Mr. Kasturi is, that by virtue of the decision in The State of Madras v. C.G. Menon and Anr : [1955]1SCR280 , the Indian Extradition Act must be deemed to have been struck down by the Supreme Court. But the judgment of the Supreme Court itself makes clear that only Part II of the Fugitive Offenders Act, has been struck down. Their Lordships point out:

We do not think that it is necessary in the present case to enter into a discussion of the question whether British possessions with which India was grouped (e.g., Ceylon) under Part II of the Fugitive Offenders Act, 1881, should now be treated as foreign States qua India and that offenders apprehended can be surrendered under the Indian Extradition Act or 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, and it is not the practice of this Court to decide questions which are not properly raised before it or which do not arise directly for decision.

66. Therefore, Chapter III of the Extradition Act has not been struck down by the decision of the Supreme Court in the above case.

67. The third contention of the learned advocate Mr. Kasturi is that Chapter III of the Extradition Act is not separable from the part struck down. But as pointed out by the learned Advocate-General, applying the principle of separability laid down in a Bench decision of this Court in Achar v. State of Madras (1954) 1 M.L.J. 102 : I.L.R. (1954) Mad. 908, the part struck down is clearly separable from Chapter III of the Indian Extradition Act and this is indicated in the extract from the judgment of the Supreme Court just now set out above. In Achar v. State of Madras : 1954CriLJ1322 , the learned Chief Justice has examined this doctrine of separability referring to Willoughby on the 'Constitution of the United States,' Second Edition, at pages 36-37; Cooley in 'Constitutional Limitations', 8th Edition, page 360 and following and the Privy Council decisions in The Initiative and Referendum Act, In re2, and Attorney-General for British Columbia v. Attorney-General for Canada I.L.R. (1959) Mad. 484, and held that the test in all these cases should be whether omitting the offending provisions the remaining provisions can stand on their own. In this case it cannot be said that all these provisions are connected in subject-matter dependent on each other and operating together for the same purpose or essentially and inseparably connected in substance so that when the unconstitutional portion is struck down that which remained is incomplete and in itself incapable of being executed. The two provisions are certainly not interwoven and it cannot be said that if one portion failed the other portion cannot stand on its own. Even if there was no Fugitive Offenders Act, Chapter III will apply as a dominion will not become a foreign State. Therefore, Chapter III of the Extradition Act cannot be deemed to have also been struck down by reason of its inseparability from the part struck down by the Supreme Court relating to a special procedure, backing of warrants applicable to a group of possessions.

68. The learned advocate Mr. Kasturi next delicately and tactfully suggested that when the Ceylon Government has been widely reputed to be less than fair to the Indian citizens why should we lean over backwards and surrender our citizens? But without delving into a province which is not ours, the Ceylon Government as a matter of fact it may be pointed out has made an advantageous reciprocal arrangement in regard to the surrender of fugitive offenders in Ceylon to India. The Ceylon Government has included India as one of the countries which can extradite fugitive offenders to India by mere backing of warrants. In other words, whereas we can get extradition of fugitive offenders from Ceylon by the simple procedure of backing of warrants without enquiry, Ceylon can extradite fugitive offenders to Ceylon from India only after an enquiry. Therefore, there is certainly no want of reciprocity. On the other hand, the Ceylon Government is more generous in this respect than India.

69. The final argument of Mr. Kasturi seems to assume that by extraditing fugitive offenders to Ceylon we are somehow impairing the Fundamental Rights conferred by our Constitution on the Indian Citizens and ' that we are impairing the liberty of the Indian citizens by putting him in jeopardy without due process of law' (See Memorandum of Revision.) But this is not a correct view. Ail nations are equally interested in the suppression of crime. Therefore, the handing over of a fugitive from justice by the country in which he is found to the country demanding him is nothing more than a reciprocal surrender of criminals in the common interest of civilised communities. In bygone times common criminals had rarely the opportunity of escaping and only the so-called political criminals sometimes succeeded. Quick transporation has altered radically this state of things. Then on account of the variations in the definition of crime in different countries there had been a reluctance to Surrender persons who have not committed offences against the laws of the country in whichtheyare actually present. (Encyclopaedia Brittanica (1951 edition.): Extradition Act, Vol. 9, page 1 and following). Therefore, in course of time treaties have been entered into and Extradition Acts have been enacted which obviate these impediments in the way of surrender of fugitive offenders. In the present case, it will be noticed Chockalingam Chettiar is not a political criminal and the offence of which he is accused, viz., under Section 392 of the Ceylon Penal Code corresponds exactly to Section 409 of the Indian Penal Code. Therefore, no question of any infringement of Fundamental Rights is involved and in fact as Piggott points out:

The duty to extradite as a common law duty of the Executive in aid of a general system of punishment of criminals is a pleasant myth; at the best it is a political duty....it is involved in that large word ' comity' ' [Extradition, 1910, P. 8].

The principle is that a State against whose laws a person subject to their obligations has committed an offence is entitled to ask as a matter of international courtesy that the authorities of the place in which he has taken a refuge shall assist in his being brought to justice by surrendering him to the country whose tribunals are entitled to punish the offence committed.' (Clarke, p. 223).

70. The consequence of disregard of that comity will only lead to virtual exclusion of citizens of this country from all foreign countries, because no country is going to tolerate Indian citizens coming and injuring their citizens, and then escape and become untouchable; and secondly this country will be helpless if culprits committing offences here slip out to contiguous countries. It would lead to an unenviable state of things all round. In fact as Bentham wittily pointed out in another connection

If all the criminals of all countries had assembled and framed a system after their own wishes is not the abolition of Extradition the very first which they would have established for their security?

71. The net result is that Chapter III of the Indian Extradition Act has not been struck down and is applicable and under its provisions fugitive offenders in India on requisition after due compliance with the provisions prescribed thereunder and if a prima facie case is made out, can be extradited to Ceylon.

72. I wish to acknowledge my indebtedness to the exhaustive arguments of the learned advocate Mr. T.M. Kasturi and the luminous exposition of the Law of Extradition by the learned Advocate-General, which were of great assistance.

Anantanarayanan, J.

73. This is a reference by our learned brother (Somasundaram, J.) arising from a revision proceeding before him against the order of the Collector and Additional District Magistrate of Ramanathapuram at Madurai. The facts are that a complaint was laid before the Chief Magistrate of Colombo (Ceylon) in C.C. No. 28703/A on his file against the revision petitioner (K.R.P.L. Chockalingam Chettiar) for an alleged offence of criminal breach of trust upon several counts. The Ceylon Government made requisition for the extradition of this person, who was then atTiruppattur Taluk of Ramanathapuram district. The position appears to be that though there is no treaty for extradition between the Republic of India and Ceylon, that country has specifically enacted (by the Extradition (India) Act XV of 1954) that the Fugitive Offenders Act of 1881 was applicable in their relations to India. Thereupon, the Madras State Government (Home Department) issued a memorandum requesting the Additional District Magistrate to make an enquiry under Section 3 of the Indian Extradition Act (XV of 1903). The learned Magistrate made ah enquiry and after holding that a prima facie case was established, committed the prisoner to prison to await the orders of the Central Government under Section 3(4) of the Indian Extradition Act.

74. It was contended before the learned Judge (Somasundaram, J.) that the Indian Extradition Act was enacted prior to the attainment of Insependence by India, when India was a British possession, and that Chapter II of the Indian Act was applicable to those States to which the Engligh Extradition Acts of 1870 and 1873 applied, while Chapter IV was made specifically applicable to those Dominions to which the Fugitive Offenders Act, 1881, and particularly the procedure laid down in Part II of that Act, had relevance and application. After the attainment of Indpendence by this country, the provisions of the Fugitive Offenders Act of 1881, and specifically Part II of that Act, have been held to be inapplicable and void of force, since India could not be described as a British possession in the term of that statute, nor grouped by an Order in Council amongst those possessions (State of Madras v. C.G. Menon and Anr.) : [1955]1SCR280 . But if the Fugitive Offenders Act did not apply, and Chapter II did not apply for the sufficient ground that Ceylon was not one of those Foreign States with which England had entered into treaty, by virtue of the English Extradition Acts of 1870 and 1873, we were left with Chapter III of the Indian enactment alone. It was sought to be contended before the learned Judge that Chapter III was, in its intendment, enacted to secure the facilities of extradition in respect of those States which were neither Foreign States with whom treaties had been concluded (Chapter II) nor Dominions (Chapter IV), but were in a class apart, namely, Native States. But, since Ceylon was not such a State, Chapter III could not apply. The unilateral invocation of the Fugitive Offenders Act by the Ceylon Government, would not clothe the authorities here with jurisdiction to make an enquiry and to extradite the petitioner, the Fugitive Offenders Act being void in respect of India. This must hence be construed as a casus omissus, a contingency not provided for, either by Chapter II or by Chapter III, Chapter IV having been excluded by virtue of the Supreme Court decision in Menon's case.1 The learned Judge (Somasundaram, J.) was of the view that this question was an important one, and formulated the reference to this Full Bench in the following terms:

Whether the extradition can legally be made under seetion 7 or Section 9 of the Indian Extradition Act, 1903, to any country to which section ig of the Act and the Fugitive Offenders Act, 1881, was applicable?

75. We have since had the benefit of elaborate arguments upon all aspects of the question by the learned Advocate-General for the State of Madras, and learned Counsel for the revision petitioner (Sri T.M. Kasturi). I desire to commence with an analysis of the situation as it was when the Indian Extradition Act, XV of 1903, was enacted and the relation between this comprehensive Act and the English Extradition Acts of 1870 and 1873 (33 and 34 Viet., Ch. 52 and 36 and 37 Viet., Ch. 60) on the one hand, and the Fugitive Offenders Act, 1881 (44 and 45 Viet., Ch; 69) on the other. We may then proceed to scrutinise how this situation was affected by the attainment of Indian Independence, by the provisions of the Constitution, and by the dicta of the Supreme Court in Menon's case1. The argument is also advanced before us, which will be taken note of later, to the effect that such proceedings of extradition or rendition of the petitioner to the Ceylon Government will be opposed to his fundamental right of free movement and residence in India, under Article 19 (d) and (e) of the Constitution.

76. At the outset, some observations are essential about the nature of the legal concept of Extradition, and the part that it has played in International Law. The history of the concept, and its significance as a matter of comparative Law affecting the comity of nations, have been dealt with in detail in the judgment of my learned brother Ramaswami, J., and it is not hence necessary that I should dilate upon this aspect. In Oppenheim's ' International Law ' Volume 1 (Eighth Edition, Lauterpacht, page 696, Extradition has been defined as--

the delivery of an accused or a convicted individual to the State on whose territory he is alleged to have committed, or to have been convicted of, a crime, by the State on whose territory the alleged criminal happens for the time to be.

In Halsbury's Laws of England (Third Edition, Simonds, Volume 16, page 560) a more terse, but equally clear definition, is furnished in the following terms:

Extradition is the delivery on the part of one State to another of those whom it is desired tc-deal with for crimes of which they have been accused or convicted and are justiciable in the Courts of th other State.

77. It will be found that in Corpus Juris Secondum (vol. 35, page 380) a very similar definition is given, in somewhat less academic language. When we review the history of this concept, we find that Grotius expressed a very clear opinion as to the existence of this duty between Sovereign States (See passage cited in Clarke upon ' Extradition.

78. Fourth edition, page 2) Vattel also propounded the doctrine in explicit terms. But, as Oppenheim observes, the treaties stipulating extradition between Sovereign States really relate to the 18th and particularly the 19th centuries. Further, States have generally upheld their right to grant asylum to foreign individuals as an inference from their territorial supremacy. Many States such as France and Germany, have adopted the principle of' never extraditing one of their own subjects to a foreign State, but themselves punishing their own subjects for grave crimes committed abroad. Some States have enacted special Municipal Laws, which enumerate those crimes for which extradition shall be granted and asked in return, and which, at the same time, regulate the procedure in Extradition cases. Thus, as Oppenheim points out (Section 330, page 700):

A conflict between International and Municipal Law may arise if a certain individual must be extradited according to an extradition treaty, but cannot be extradited according to Municipal Law of the State from which extradition is demanded.

79. Practice is also very widely variant between the Sovereign States. Some States, such as Great Britain, have not adopted the principle that one of their own subjects should never be extradited by a foreign State and make no distinction between their own subjects and other persons who are alleged to have committed extraditable crimes abroad. It is noteworthy that the United States, though they did not press, for extradition of Italian subjects who, after committing a crime in the Unrfed States returned to Italy, nevertheless considered themselves bound by the Treaty of 1868, to extradite to Italy such American subjects as had committed crimes in Italy. (Oppenheim, Section 330, page 700, Footnote.)

80. When we now turn to the situation when the Indian Extradition Act XV of 1903; was enacted, we find that it is as follows: The Extradition Act, 1870 (33 and 34 Viet., Ch. 52) provided under Section 17 of that Act that, when applied by Order in Council, it extended to every British possession in the same manner as if throughout the Act, the British possession were substituted for the United Kingdom or England subject to certain modifications. Similarly, under Section 18, if the Legislature of any British possession had enacted, a law or ordinance providing for extradition of fugitive criminals, Her Majesty's Government could either (1) suspend the operation within any such British possession of the Act of 1870 or any part thereof or (2) direct that such law or ordinance should have the effect in such British possession, as if it were part of the Act itself. We are not, for the moment, concerned with the procedures provided for in the English Act. But, when we turn to the Fugitive Offenders Act (44 and 45 Viet., Ch. 69) 1881, we find that a certain procedure is provided, including an enquiry by a Magistrate, under Part I of this Act, but that under Section 12 (with which Part II commences), there was a separate and far more expeditious procedure for the backing of warrants issued by any member of the group of possessions to which this part of the Act was made applicable by the Crown by Order in Council. As we shall see later, it is this part of this statute which has been struck down in Menon's case,1 as incompatible with the sovereign status of Republic of India.

81. When we now turn our attention to the Indian Extradition Act (XV of 1903), we notice that the very Preamble states that the intendment is,

to provide for the more convenient administration of the Extradition Acts, 1870 and 1873, and of the Fugitive Offenders Act, 1881. and further, that the intendment is equally to amend the law relating to the extradition of criminals in cases to which the Extradition Acts 1870 and 1873, do not apply.

82. As we shall see later, this part of the Preamble has only one possible construction namely that it explains the enactment of Chapter III, separately from both Chapter II and Chapter IV. When we turn to the definitions, we note that under Section 2 (c) 'Foreign State' is defined as

a State to which, for the time being, the Extradition Acts, 1870 and 1873, apply.

83. This is of great importance, with reference to the present facts, for, as the learned Advocate-General stresses, the very definition has an ambulatory content, in the sense that the treaties so concluded by the Grown with individual Foreign States may either cease, or fresh treaties with them or with other States may spring into existence. If we glance at Part IV, Appendix I of the Extradition Manual, 1940, (page 141), we discover a list of countries with which the Grown had effected Extradition Treaties, which therefore applied to India, as on 1st January, 1938. It may be convenient to mention, in this context itself, that Chapter II deals with the surrender of fugitive criminals in the case of such 'Foreign States', and that under Section 18 of the Act of 1870, an Order in Council was issued by the Crown, dated 7th March, 1904, declaring that this Chapter was to have effect in British India, as if it were part of the English Extradition Act of 1870. ' Extradition Offence ' is defined in Section 2 (b) and ' Offence' is defined in Section 2 (e). When we come to Chapter III, we shall see that these respective terms have been used in different Sections of that Chapter. Since Chapter II applies to 'Foreign States', and provides for the relevant extradition procedure, we may leave this part of the Act aside, for a moment, and turn to Chapter IV. Here, we note that the provisions are expressly enacted (under Section 19) forHhe carrying into effect in British India of the provisions of the Fugitive Offenders Act, 1881. We also find that under Section 32 of the Fugitive Offenders Act, i88r7an Order in Council was issued by the Crown dated 7th March, 1904, declaring that this Chapter was to be given effect to throughout the Dominions, and the relations of this country with the Dominions were governed by the provisions of this Chapter in the matters relating to extradition.

84. Chapter III, which is the vital part, of the Act for our interpretation, concerns the 'surrender of fugitive criminals' in cases of States other than 'Foreign States'. Section 7(1) with which this Chapter commences, runs as follows:

Where an extradition offence has been committed or is supposed to have been committed by a person in a part of India to which this Act does not extend, 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 extends, and the Political Agent in or for such State issues a warrant addressed to the District Magistrate of any district in which such person is believed to be....for his arrest and delivery.... such Magistrate shall act in pursuance of such warrant and may give directions accordingly.

85. Section 9 of this Chapter, which is equally significant is in the following terms:

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 prescribd by Section 3....

86. Two remarks are essential here, before we pass on. The first is that both under Section 7 and under Section 9, this Chapter provides for specific procedures by the concerned Magistrate; but obviously, Section 7 requires that the Political Agent of the State outside India has to be satisfied that it is necessary to issue a warrant for the extradition of the offender, whereas Section 9 is in wider terms, and refers merely to a requisition to be issued by the State concerned. But Section 7 relates to 'Extradition Offence' whereas Section 9 refers to an 'Offence'. Before leaving this Chapter, it is also important to note Section 18, which runs as follows:

Nothing in this Chapter shall derogate from the provisions of any treaty for the extradition of offenders, and the procedure provided by any such treaty shall be followed in any case to which it applies, and the provisions of this Act shall be modified accordingly.

87. We are now able to view the problem before us, in a clearer light. If we assume that the Indian Extradition Act broadly deals with two categories (1) States to which the English Acts of 1870 and 1873 applied, which are hence ' Foreign States' and governed by treaties and the provisions of Chapter II and (2) all other States which are not 'Foreign States' so defined, which might be Dominions to which the specific provisions of Chapter IV applied or not as the case may be, the argument of the learned Advocate-General becomes clear. The argument is that the schematic representation of this Act should indicate allnon-'Foreign States' as a genus, of which Dominions would only constitute a species. Though Ceylon is such a Dominion, the provisions of Chapter IV no longer apply between this country and Ceylon, since the Fugitive Offenders Act of 1881 has been declared by the Supreme Court to be void and not in force, after the attainment of Indian Independence. Therefore, automatically Ceylon would fall within the wider class of non-'Foreign States' dealt with in Chapter III, the definition of 'Foreign State' itself being a technical one, and there being nothing in the express language to warrant an inference that Chapter III was of restricted application to Native States alone, in the days prior to the attainment of Independence. Per contra, the arguments of Sri T.M. Kasturi could be set forth as consisting of the following branches, which ought to be logically distinguished from each other. Firstly, learned Counsel contends that Chapter III was, in its intendment, purposively enacted to apply to Native States alone. Consequently, the provisions of this Chapter cannot be invoked to govern extradition relations between this country and Ceylon, which is a Dominion. Chapter IV alone would apply, and since its provisions are nullfied by the effect of the dicta in Merlon's case1, the present instance would reduce itself to a casus omissus, until there is a new and formal understanding between this country and Ceylon. Next learned Counsel urges, upon the strength of the same dicta in MenorCs case1, that Chapier II is also rendered nugatory, because the very category of 'Foreign States' with its ambulatory content (Section 2 (c)) depends upon a classification made, or treaties effected, by a power outside the Republic of India; the argument is that this is in derogation of the sovereignty of this country. Since most of the enactmnt is thus rendered invalid, it is argued that 4jje enactment itself is not saved by virtue of Article 372 cf the Constitution, and is no longer in force. Thirdly, learned Counsel claims that, in any event since the Ceylon Government admittedly moved for extradition of the petitioner, with reference to the Fugitive Offenders Act, 1881, and the provisions of Chapter IV are invalid, the case does not survive to be dealt with under Chapter III at all. In other words, this argument necessarily involves the contention that Chapters III and IV are different in genus or species altogether, and are mutually exclusive.

88. We shall first deal with the argument that Chapter III was of restricted scope, in intendment, and that it was to apply only to the Native States, as they then were, a class not falling either within the group of Dominions or ' Foreign States ' as denned in the Act. We think it very probable that Chapter III was enacted, having the special case of the Native States also in mind, and, undoubtedly, the very Statement of ' Objects and Reasons ' (printed at page 1073 of the Criminal Court Manual (Central Acts, 6th Edition)) makes reference, inter alia, to this purpose. But the statement itself shows, if indeed it is necessary to look into this, when the language is so clear and explicit, that the ambit of the Chapter is much wider. learned Counsel (Sri T.M. Kasturi refers to the principle of construction laid down in Maxwell), to the effect that the intention of the framers of a statute should be borne in mind, as a canon of interpretation. But the very passage does not support him in the present context, and, since it is of interest and significance, may be cited here:

A statute is the will of the Legislature, and the fundamental rule of interpretation, to which all others are subordinate, is that a statute is to be expounded ' according to the intent of them that made it.' If the words of the statute are in themselves precise and unambiguous, no more is necessary than-to expound those words in their natural and ordinary sense, the words themselves in such case best declaring the intention of the Legislature.' (Maxwell on the Interpretation of Statutes, 10th Edition, Page 1).

89. Again, in Muddiman, ' The Law of Extradition from and to British India ' (2nd Edition, 1927), we find a discussion which throws a clear illumination upon the matter. With reference to the facts of the Portuguese possessions in India, which call for special notice in certain ways, the learned author observes that the Portuguese Treaty Act (IV of 1880) having expired, the Act had been repealed, so that these possessions would come within the category of non-'Foreign States ' (Chapter III).

Apparently, therefore, a requisition under Section 9 of the Indian Extradition Act, 1903, is the only course now available.

90. The learned Advocate-General conceded, with fairness, that this observation by the learned author may not be conclusive by any means. But it certainly supports the plain and ex facie interpretation of the language used. It is urged that, since Section 7 refers to a warrant to be issued by a Political Agent, the Native States were meant. We need only point out that there are no grounds for the assumption, that Political Agents were not also stationed at that time in other States such as Nepal, or in French possessions like Pondicherry, etc. Further, Section 9 itself bears evidence that the ambit of the Chapter is much wider, and that it cannot be so restricted in scope.

91. In other words, our interpretation of the scheme of these Chapters points to the necessary inference that Chapter II deals with the category of' Foreign States ' technically defined, and Chapter III deals with all other States, constituting a genus. Chapter IV is a special procedure applicable to Dominions, which seem entitled to the preference of a more expeditious extradition, including the ' Backing of Warrants.' We may now turn to Menon's case1, in order to see how far the argument is sustainable that the dicta in that case should have the effect of rendering the Indian Extradition Act itself nugatory, after the attainment of Indian Independence.

92. We may first refer to the Supreme Court decision in Dr. Baku Ram Saksena v. The State (1954) 1 M.L.J. 102 : I.L.R. (1954) Mad. 908. This is instructive on account of the fact that, in spite of the existence of an extradition treaty under which the other party had more restricted obligations in the matter of rendition of criminals, the Supreme Court held that, because it provided for additional offences, the Extradition Act of 1903 did not derogate from those provisions. As observed by Patanjali Sastri, J., (page 579):

This statutory authority to surrender cannot of course enlarge the 'obligation of the other party where an extradition treaty has been entered into, and this is made clear by Section 18. But it is equally clear that the Act does not derogate from any such treaty when it authorises the Indian Government to grant extradition for some additional offences, thereby enlarging, not curtailing, the power of the other party to claim surrender of criminals.

93. We would stress this aspect of the matter, in order to emphasise the necessity for a liberal and beneficient construction of the provisions of the Indian Extradition Act, in the interest of the comity of nations, particularly where, as in a case like this, there is full reciprocity from the other State. Of course, the matter would be wholly different, if the revision petitioner had not committed any offence or offences prima facie, as defined in our Municipal Law, namely, according to the Indian Act and its Schedules. But it is not claimed that that is the case.

94. When we now come to Menon's case,1 particular stress is laid by learned Counsel for the petitioner upon the following two passages in the judgment of M.C. Mahajan, C.J. Their Lordships laid down at page 287:

The situation completely changed when India became a Sovereign Democratic Republic. After the achievement of Independence and the coming into force of the new Constitution, by no stretch of imagination could India be described as a British possession, and it could not be grouped by an Order in Council amongst those possessions. 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... Article 372 of the Constitution cannot save this law because the grouping is repugnant to the conception of a Sovereign Democratic Republic.

95. We note that the decision actually strikes down the provisions of Part II of the Fugitive Offenders Act, 1881, and that it is specific authority for the view that the Indian Extradition Act, 1903, though adopted under the provisions of Article 372 of the Constitution, has not kept those provisions alive. But, undoubtedly, the effect of the observations of the Supreme Court, even though obiter, must be given effect to by the High Courts as far as it lies in their power; and there can be no question that even obiter observations of the Supreme Court are authoritative as pronouncements of the law laid down. But we are quite unable to see how these observations, even by implication, warrant any inference that the Indian Extradition Act itself does not survive, because the provisions of Chapter IV of that Act are in derogation of Indian Sovereignty. A very similar argument was put forward before Rajagopala Ayyangar, J., in Macmillan & Co. v. Little Flower Co. (1954) 1 M.L.J. 102 : I.L.R. (1954) Mad. 908, and the learned Judge pointed out, with reference to Menon's case1, that:

It would not be correct to regard that the Fugitive Offenders Act, 1881, had ceased to operate for all purposes as far as India is concerned. Menon's case1 was concerned with the political ties brought into being between disperate units of the British Empire by Legislation of the Imperial Parliament.. I am unable to find any basis for the argument that the only laws in force at the date of the Consitution and which survived the emergence of India as a Dominion or as a Sovereign Republic were those laws which were enacted by the Indian Legislature and that British Parliamentary legislation therefore applicable to India automatically ceased to operate....If the argument of learned Counsel were pushed to its full length, it would follow that as the British Indian Legislatures were themselves the creatures of British Parliament, the laws passed by them would have to suffer a similar eclipse.

96. Again, as the learned Advocate-General points out, it is not as if the further validity of the Indian Extradition Act implies that the British Parliament still retains the initiative, even after the attainment of Indian Independence, to make extradition treaties which would bind this country. Had that been the case, the argument is certainly tenable that such provisions are in derogation of the sovereignty of this country, and, since they have the effect of virtually reducing this country to a British possession, in that respect, are invalid. Such an argument quite overlooks the true constitutional position after the attainment of Indian Independence. As stated in Halsbury (Third Edition), Simonds, Volume 5, page 529)

From 15th August, 1947, the United Kingdom Government ceased to have responsibility for any of the territories in British India, and the suzerainty of the Crown over the States lapsea, and with it all treaties, and agreements between the Crown and their Rulers and all functions? rights and obligations of the Crown in relation to them.

97. Under Section 6, Clause (4) of the Indian Independence Act of 1947, Acts of Parliament on or after the appointed day (15th August, 1947), were not to extend to the Dominions as part of the law of that Dominion ' unless it is extended thereto by a law of the Legislature of the Dominion '. With reference to Parliamentary enactments prior to 15th August, 1947, those which are classified by this Act as part of the law of India, continue in force in India under Section 18(4). But after 15th August, 1947, Parliament cannot make any laws or exercise any powers which would operate as part of the law of India in India, and the rights of this country with regard to the making of extradition treaties, or regulating extradition procedures, are therefore unfettered and absolute. It is sufficient to add that ' Extradition ' is a subject specifically provided for as the object of Legislation, as Item 18 of the seventh Schedule, List I, in the Constitution of India. We would also refer to Section 18 of the Indian Extradition Act itself, cited earlier.

98. With regard to the effect of a pronouncement that certain provisions of this Act, such as those relating to Part II of the Fugitive Offenders Act, 1881, enacted as Chapter IV, were rendered nugatory as in derogation of the sovereigns, status of India, upon the rest of the Act, or the Act considered as a whole, reference might be made to the decision of this Court in A.R.V. Ackar v. State of Madras : [1950]1SCR519 . Applying the test laid down in this decision, there can be no doubt that the provisions of Chapter III, with which we are now concerned, are perfectly valid and can stand by themselves, even if certain provisions in Chapter IV are to be considered as struck down. Again, we are unable to see how any other construction is possible, since that would really involve the assumption of a total vacuum in the law relating to Extradition and Extradition procedures governing this country, and all other countries in relation to this country, of the comity of nations; for the argument would equally strike down not merely the Act itself but all previous treaties and international agreements. We have hence no hesitation in concluding that the Indian Extradition Act, and Chapter III thereof, do survive, and are part of the law of this country, as saved by the effect of Article 372 of the Indian Constitution. We must further hold that, in the present case, since the procedure, relevant to the Fugitive Offenders Act of 1881 does not apply, the case must fall within the wider ambit of Chapter III itself, and be governed by the provisions of Section 7 or 9 of the Gpapter, as the case may be. The rendition of the revision petitioner to the Ceylon Government, under Chapter III, after compliance with the necessary procedure and formalities, would therefore, be perfectly proper, and in accordance with the law.

99. We accept the arguments of the learned Advocate-General upon the schematic analysis of the Indian Extradition Act, that Chapter III constitutes the genus of non-'Foreign States ' of which the ' Dominions ' (Chapter IV) form a species. Nor have we the slightest warrant for the assumption that Chapters III and IV are mutually exclusive categories.

100. The final argument of learned Counsel for the petitioner that such rendition constitutes an infringement of the fundamental rights guaranteed under Article 19 (c) and (d) of the Constitution, appears to be based upon a misconception of those rights. As was held in A.K. Gopalaris case1, itself by the Supreme Court, the imprisonment of a criminal, or of a person who is arrested and detained according to law for an alleged crime, does not offend any fundamental right. To hold otherwise, would result in a virtual paralysis of the administration of criminal justice. Since ' Extradition ' is a specific subject for the exercise of legislative competence under ihe Constitution, it follows that the rendition of offenders for extraditable offences cannot be in derogation of the fundamental rights of freedom of movement or residence, and that this restriction is 'in the interests of the general public ',. (Section 19(5)). This is not a case of externment, like Dr. Khare v. State of Delhi1 (1950) S.C.J. 174 : (1950) 2 M.L.J. 42 but a case of rendition for trial to another country, in accordance with International Law and the Municipal Law of this country. We overrule this contention accordingly.

101. In the result, we would answer the reference by the conclusion that, in the circumstances under which the reference was made, extradition is legally permissible under the provisions of Section 7 or Section 9 of the Chapter III of the Act, though the provisions of the Fugitive Offenders Act, 1881, invoked by the Ceylon Government, are no longer in force in this country.

102. We desire to acknowledge our indebtedness to the learned Advocate-General and the learned Counsel for the Revision-Pedtioner (Sri T.M. Kasturi) for the great care and pains taken to elucidate the problems of interpretation arising from this reference.

103. After the Full Bench answered the reference, the petition came on for disposal before Somasundaram, J. The Court made the following

Order

104. The question that was referred to the Full Bench has been answered against the petitioner. There is no other ground for interference. The Petition is dismissed.


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