S.K. Ghose, J.
1. The two petitioners have filed an application under Section 491, Criminal P.C., and obtained a rule in their favour in terms of a writ of Habeas Corpus upon the authorities concerned to show cause why the petitioner should not be set at liberty. It appears that there is an allegation that these two petitioners together with three others forcibly seized within British territory a Sepoy of Pashupatinagore Court of Nepal territory, took him into Nepal territory and there assaulted him and took away some money and certain letters which he was carrying. On 2nd September 1934, an information was lodged at Sakiapokra Thana in British territory of an offence under Section 341, I.P.C., but in this matter a final report 'true' was submitted for lack of evidence. Subsequently the lieutenant Hakim of Illam Amin, a Court in Nepal territory, addressed letter No. 16 and bearing the date 16th August 1934, to the Deputy Commissioner of Darjeeling to the effect' that the five accused persons, including the present two petitioners, had come into Nepal territory, and assaulted and robbed the aforesaid Sepoy. The Hakim requested that the men should be arrested and put in jail pending action for their surrender. It also appears that the sepoy was brought to Victoria Hospital, Darjeeling, where he made a statement on 8th August, which was recorded by a Sub-Inspector and that the man died on 28th August. Subsequently another letter bearing the date 19th September 1934, was received from the Lieutenant Hakim of Illam Court intimating to the Deputy Commissioner that the accused were charged with robbery and murder. The Deputy Commissioner ordered the police on 27th August, to arrest the accused, and in pursuance of this order the present two petitioners were arrested in Calcutta on 17th September. They were produced before the Darjeeling Court on 19th September, and then remanded to jail custody. Their application for release was rejected by the Magistrate by his order Sated 29th September.
2. In the course of that order the learned Deputy Commissioner stated that he, 'as Deputy Commissioner ordered the police to arrest the accused on 27th August 1934, and his instructions were carried out.' He considered that the action taken by him was of a purely executive nature under Section 10 and Section 23, (Extradition) Act,' and that he was 'definitely debarred from allowing bail.' He also doubted if the prisoners need be produced after fortnightly intervals, but he directed that the papers should be put up before him after such intervals or on receipt of the necessary requisition from the authorities of Nepal. It does not appear if the fact of the arrest was reported to the Nepal Court. A motion was taken before the learned Sessions Judge of Darjeeling and he, in the course of an order bearing the date 6th October, pointed out that the learned Deputy Commissioner, if he had purported to act under Section 10, Extradition Act, should have issued a warrant as contemplated in Clause (1) and that he had overlooked the provisions of Clause (4), with regard to the granting of bail. But on the merits the learned Judge held that no case had been made out for the release of the prisoners on bail. Thereupon the present petition was filed in this Court and on 10th October 1934, the present Rule was issued as mentioned above. In showing cause against the rule the learned Deputy Commissioner of Darjeeling wrote to say that he had moved the Legal Remembrancer to take steps to represent the Crown and to show cause why the prisoners not be set at liberty. I am constrained to mention that it would have been much better if the learned Deputy Commissioner had followed the rule prescribed by this Court and furnished a proper explanation stating the facts and the grounds on which he relied, so that the petitioners could have the opportunity of examining them.
3. The contention in behalf of the petitioners and upon which the present rule was issued is to the effect that the arrest and the detention of the petitioners are not in accordance with law and in particular with the provisions of the Extradition Act-Act 15 of 1903. The question whether the petitioners are British Indians or Nepalese subjects is of no importance. The provisions of the Extradition Act are meant to ensure that the arrest and the detention of persons, who are alleged to have committed an offence outside British territory, should be in accordance with a certain procedure, and it has been held that the sections of the Act, with reference to that procedure should be construed strictly in favour of the subject. Ch. 3 describes how the surrender of fugitive criminals in case of States other than Foreign States is to be effected. When a warrant has been received in respect of an extradition offence the procedure should be as under Section 7. When a requisition is received in respect of any offence the procedure should be as under Section 9. But when neither a warrant nor a requisition has been received, the Magistrate is empowered to issue a warrant as under Section 10.
4. It is an essential ingredient to this procedure that there should be warrant, because the provision is that the issue of the warrant is to be reported forthwith and there is a time limit of two months for the detention of the persons arrested. In the present case the procedure was clearly not under Section 10. But it is contended that it is covered by Section 23. This argument cannot be supported because that section refers to the case of persons arrested under Section 54, Clause 7, Criminal P.C., that is to say when a person has been arrested not only without a warrant but also without an order from a Magistrate. Section 54 is intended to cover those cases where the Police Officers acts on his own responsibility, that is to say, on suspicion or information as based on facts which the police officer has considered for himself. This was pointed out by Choudhuri, J., in In re, Charu Ch. Majumdar, 1917 Cal 253, and indeed it is apparent from the terms Section 54 itself. On the other hand where the arrest is made in pursuance of an order of a Magistrate it is that order which must determine the legality or otherwise of the arrest. Mr. Chatterjee for the Crown has contended that merely because the Magistrate has given an order, the case is not taken out of Section 54 where the police officer himself has received credible information or has conceived a reasonable suspicion. But this does not seem to be the case here. The learned Magistrate in his order of 29th September expressly says that he as Deputy Commissioner ordered the police to arrest the accused on 27th August and that he considered that the action taken by him was purely of executive nature. Mr. Chatterjee has drawn our attention to a certified copy of an application filed by one Syed Hossein on 18th September 1934, but we are not satisfied that the police in this case effected the arrest on anything except the order of the Deputy Commissioner. Nor does it appear that even if the arrest were by the police on their own responsibility the latter provision in Section 23, Extradition Act, was followed and the detention of the prisoner was made subject to the restrictions as under Section 10 of the Act. In these circumstances it seems to us that the arrest and the detention of petitioners were not in accordance with the provisions of the Extradition Act, and therefore we must direct that the prisoners be released.
5. It has been brought to our notice by Mr. Chatterjee that subsequent to the issue of this rule a warrant was received by the Deputy Commissioner on 13th October 1934, and another warrant was received by the Chief Presidency Magistrate on 24th October 1934. We understand that neither of these warrants has yet been executed. It is open to the Magistrate to take action with reference to Section 7 and to the subsequent sections, including Section 18 of the Act, and the treaty provisions relating to the surrender of prisoners. In so far as the present proceedings on which this Rule is based are concerned we direct that the petitioners be released.
6. I agree.