Jenkins, C.J. and Teunon J.
1. The applicant, Gulli Sahu, has obtained a Rule calling in question the legality of his arrest under the Indian Extradition Act of 1903. The Rule was granted with some hesitation for great doubt was felt as to the Court's jurisdiction to interfere in the exercise of its re visional powers. This doubt was well-founded. The powers of the Act were set in motion by the Political Agent in and for the State of Nepal who issued a warrant addressed to the District Magistrate of Darbhanga for the arrest of the applicant Gulli Sahu, and his delivery as in the warrant described.
2. The applicant is a Nepalese subject who had fled from Nepal to British territory. The case against him is that he has committed, or is supposed to have committed, murder and that is an extradition offence. The proceedings thus fell within Section 7 of the Act. Subsection (1) empowers a Political Agent to issue a warrant addressed to a District Magistrate for the arrest of a person 'by whom an offence has been committed, or is supposed to have been committed. Subsection (2) provides that the warrant so issued shall be executed in the manner provided by the law for the time being in force with reference to the execution of warrants.
3. It has not been suggested that we should or could revise what was done by the Political Agent; but we have been asked to interfere with, the proceedings of the District Magistrate in British India. But the District Magistrate's sole function was to execute the warrant and, notwithstanding his eccentric procedure and pronouncement, this in effect is what lie has done. And as in so doing he performed in accordance with his legal duty an executive act, we have no power to interfere in the exercise of our revisional powers. That this is the true effect of the Indian Extradition Act, 1903, is we think apparent from an examination of its scheme. Chapter II of the Act deals with the surrender of fugitive criminals in the case of Foreign States, and where a requisition is made for such surrender, the Government may issue an order to a Magistrate to enquire into the crime. The method of inquiry is described, and a power to commit the fugitive criminal to prison to await the orders of the Government, or to release him on bail, is vested in the Magistrate.
4. Then it is enacted that the Magistrate shall report the result of his inquiry to the Government, and a power is given to the Government to refer to the High Court any important question of law. But it rests with the Government to decide as to the surrender of the fugitive criminal, and Section 5 empowers the Government to stay proceedings under the Chapter and to direct any warrant issued under it to be cancelled, and the person for whose arrest a warrant has been issued to be discharged.
5. Chapter III, on the other hand, deals with the surrender of fugitive criminals in case of States other than Foreign States. Nepal is such a State, so that it is with this Chapter that we are concerned. In cases falling under this Chapter a simpler procedure is prescribed where proceedings are initiated by a Political Agent. In that case no enquiry is directed and the determination of the Political Agent is regarded as sufficient subject to the Government's power of interference under Section 15.
6. Where, however, a State not being a Foreign State, itself makes a requisition for the surrender of an accused person then the procedure of Section 3, which is in Chapter II, is prescribed including the enquiry and report by the Magistrate. An examination of the whole Act and a comparison of its provisions confirm the view that, where a warrant is issued by a Political Agent under Section 7, its execution by the District Magistrate in accordance with the Act is an executive act, and the Court cannot interfere in revision with such execution. There is nothing in this view which in any way conflicts with the power of the Court to interfere otherwise than by way of revision. Thus the power of the Court to interfere under Section 491 is untouched by this decision, for that is a power not created by the Extradition Act or exercisable by way of revision, but vested in Presidency Courts to protect the liberty of the subject in appropriate cases, whatever may be the occasion of the deprivation of which complaint is made.
7. If a fugitive criminal arrested under Section 7 of the Indian Extradition Act considers himself aggrieved, he can invoke the action of the Government under Section 15. This Court, however, has no power of revision and so the Rule must be discharged.