STATE OF WEST BENGAL v. JUGAL KISHORE MORE & Anr.

The functions which the Courts in the two countries perform are therefore different. The Court within whose jurisdiction the offence is committed decides whether there is prima facie evidence on which a requisition may be made to another country for surren der of the offender. When the State to which a requi~ition is made agrees consistently with its international commitments to lend its aid the requisition is transmitted to the Police author:ities, and the Courts of that country consider, according to their own laws whether the offender should be surrendered-the enquiry is in the absence of express provisions to the contrary relating to the prima facie evidence of the commission of the offence which is extraditable, the offence not being a political offence nor that the requisition being a subterfuge to secure custody for trial for a political offence. Prior to January 26, 1950, there was in force in India the Indian Extradition Act 15 of 1903, which as the preamble ex pressly enacted was intended to provide for the more convenient administration of the Extradition Acts of 1870 and 1873, and the Foreign Jurisdiction Act of 1881-both enacted by the British Parliament. The Act enacted machinery in Ch. II for the sur render of fugitive criminals in case of Foreign States i.e .. States to which the Extradition Act of 1870 and 1873 applied and in Ch. II for surrender of fugitive offenders iill case of "His Majesty's ~ominions". The Extradition Acts of 1870 and 1873 sought to give effect to arrangements made with foreign States with respect to !he surrender to such States of any fugitive criminals Her Ma1esty may by Order in Council, direct and to prescribe the pro cedure for extraditing fugitive offenders to ~such foreign states. As observed in Halsbury's Laws of England Vol. 16, 3rd Edn., para 1161 at p. 567 : "Whe_,n a tr.e~ty has been made with a foreign State and th~ Extrad1t10n Acts have been applied by Order in Council, one of Her Majesty's principal Secretaries of ·State may, upon a requisition made to him by some per son recognized by him as a diplomatic representative nf 328 SUPREME COURT REPORTS (1969] 3 S.t.R. • that foreign State, by order under his hand and seal, signify to a police magistrate that such a requisition has been made and require him to issue his warrant for the apprehension of the fugitive criminal if the criminal is in or is suspected of being in, the United Kingdom." The warrant may then be issued by a police magistrate on receipt of the order of the Secretary of State and upon such evi dence as would in his opinion justify the issue of the warrant if the crime had been committed or the criminal convicted in England. fugitive offenders The procedure for extradition of "British possessions" was less complicated. When the Extradition Act was applied by Order in Council unless it was otherwise pro vided by such Order, the Act extended to every "British posses sion" in the same llllliOOer as if throughout the Act the "British possession" were substituted for the United Kingdom, but with certain modifications in procedure. Under Part I of the Fugitive Offenders Act 1881 a warrant issued in one part of the Crown's Dominion for apprehension of a fugitive offender, could be endorsed for execution in another Dominion. After the fugitive was apprehended he was brought before the Magistrate who heard the case in the same manner and had the same jurisdiction and powers as if the fugitive was charged with an offence committed within the Magistrate's jurisdiction. If the Magistrate was satisfied, after expiry of 15 days from the date on which the fugitive was committed to prison, he could make an order for surrender of the fugitive on the warrant issued by the Secretary of State or an appropriate officer. There was also pro vision for "inter-colonial backing of warrants" within groups of "British possessions" to which Part I of the Fugitive Offenders In such groups Act, 1881 has been applied by Order in Council. a more rapid procedure for the return of fugitive offenders between possessions of the same group was in force. Where in a "British possession", of a group to which Part II of the Act applied, a warrant was issued for the apprehension of a person accused of an offence punishable in that possession and such term is or was suspected of being, in or on the way to another British possession of the same group, a magistrate in the last-mentioned possession, if satisfied that the warrant was issued by a person having lawful · authority to issue the same, _was bound to endorse ~tich warrant, and the warrant so endorsed was sufficient authority to apprehend, within the jurisdiction of the endorsing magistrate the person named in the warrant and to bring him before the endorsing magis t~ate or some other magistrate in the same possession. If . the magistrate before whom a person apprehen.ded was broug~t was satisfied that the warrant was duly authenticated and was 1ss~ed A B c J) E G WEST BENGAL V, JUGAL KISHORE (Shah, J.) 329 A by a persoo having !awful authority to jssue it, and the identity of the prisoner was establ, ished he could order the prisoner to be re turned to the British possession in which the warrant was issued and for that purpose to deliver into the custody of the persons to whom the warrant was addressed or of any one or more of them, and to be held in custody and conveye<j to that possession, there to B be dealt with acco~ to Jaw as if he had been there apprehended. This was in brief the procedure prior to January 2!l, 1950. The President of India adapted the Extradition Act 1903, in certain particulars. The Fugitive Offenders Act, 1881 and the Extradition Act, 1870, in their application to India were however not repealed by the Indian Parliament and to the extent they were consistent with the constitutional scheme remained applicable. In order to maintain the continued application of laws of the British Parliament, notwithstanding India becoming a Republic, the British Parliament enacted the India (Consequen tial Provision) Act 1949 which by s. 1 provided : " ( 1) On and after the date of India's beconiing a republic, all exis~g law, that is to say, all law which, whether being a rule of law or a proyision of an Act of Parliament or of any other enactment or instrument whatsoever, is in force on that date or has been passed or made before that date and comes into force there after, shall, until provision to the contrary is made by the authority having power to alter that law ancl subject to the provisions of sub-s. (3) of this section, have the same operation in relation to India, and to persons and things in any way belonging to or connected with India, if India had not become a as it would have had republic. ( 3) His Majesty may by Order in Council make pr~vision. for such satisfaction of any existing law to which this Act extends as may appear to him to be necessary or expedient in view of India's becoming a republic while remaining a member of the Common wealth, and sub-s. ( 1) of this section shall have effect in relation to any such law as modified by such an order in so far as the contrary intention appears in the order. An Order in Council under this section- · (a) may be made either before or after India· be comes a republic, and may be, revoked or varied by a subsequent Order in Council; and c D E F G H 330 SUPREME COURT REPORTS (1969] 3 S C.R. (b) shall be subject to annulment in pursuance of a resolution of either House of Parliament." A In 1954 this Court was called upon to C!ecide a case relating to extradition to Singapore, a British Colony, of a person alleged to be a fugitive offender The State of Madr¥S v. C. G. Menon In that case Menon and his wife were appre and Another('). hended and produced before the Chief Presidency Magistrate, Madras, pursuant to warrants of arrest issued under the provisions of the Fugitive Offenders Act, 1881. Arrests were made in pur suance of requisition made by the Colonial ,Secretary of Singapore requesting the assistance of the Government of India to arrest and return to the Colony of Singapore Menons under warrants issued by the. Police Magistrate of Singapore. Menons pleaded that the Fugitive Offenders Act, 1881, under which the action was sought to be taken against them was repugnant to the Cons· titution of India and was void and unenforceable. The Chief Presidency Magistrate referred two questions of law for decision of the High Court of Madras : (1) Whether the Fugitive Offenders Act, 1881, applies India to India after 26th J:i,nuary, 1950, when became a Sovereign Democratic Republic· and (2) Whether, even if it applied, it or any of its provi sions, particularly Part II thereof, is repugnant to the Constitution of India and is therefore void and or inoperative. The High Court held that the Fugitive Offenders Act was in consistent with the fundamental right of equal protection of the laws guaranteed by Art. 14 of the Constitution and was void In to that extent and unenforceable against the petitioners. • appeal brought to this Court it was observed : I . provisions "It is ·plain from the . ·of the Fugitive Offenders Act as well as from the Order in Council that British Possessions which were conti guous to one another and between whom there was frequent inter-communication were treated for pur poses of the Fugitive Offenders Act as one integrated territory and a summary procedure was adopted for the purpose of extraditing persons who. had committed offences in these integrated territories. As the laws prevailing in those possessions were substantially the same. the requirem!)nt that no fugitive will be surren dered unless a prima facie case was made against him Indian Extradition was dispensed with. Under the (\) [\955] 1 S.C.R. 280. B c D E .F G H WEST BENGAL v. JUGAL KISHORE (Shah, J.) 33I A Act, 1903, also a similar requirement is insisted upon before a person can be extradited. B c D E F G H independence and the The situation completely changed when India be came a Sovereign Democratic Republic. After the achievement of coming into force of the new Constitution by no stretch of imagina tion could India be described as a British Possession and it could not be grouped by an Order in Council speaking, it be amongst those Possessions. Truly came a foreign territory so far as other British Posses sions are concerned and the extradition of persons tak ing asylum in India, having committed offences British Possessions, could only be dealt w~th by an arrangement between the Sovereign Democratic Re public of India and the British Government and given effect to by appropriate legislation. The Union Parlia ment has not so far enacted any law on the subject and it was not suggested that any arrangement has been arrived at between these two Governments. The Indian Extradi tion Act, 1903, has been adapted but the Fugitive Offenders Act, 1881, which was an Act of the British Parliament has been left severely alone. The provisions of that Act could only be made applicable to India by incorporating them with appropriate changes into an Act of the Indian Parliament and by enacting an Indian Fugi 'tive Offenders Act. In the absence of any legislation on those lines, it seems difficult to hold that section 12 or section 14 of the Fugitive Offenders Act has force in India by reason of the provisions of article 3 72 of the Constitu tion. The whole basis for the applicability of Part II of the Fugitive Offenders Act has gone : India is no longer a British Possession and no Order in Council can be made to group it with other British Possessions. . . The political ba~~ground and shape of things when Part ff of the Fug11Ive Offenders Act, 1881, was enacied ~n~ envisage~ by ~at Act h~ving completely changed, 11 1s not possible without radical legislative changes to adapt that Act to the changed conditions. That being so, in our opinion, the tentative view expressed by the Presidency Magistrate was right. " . After this judgment was delivered, the Government of India Ministry of External Affairs, issued a notification on May 21' 1955, to all. State Go~ernments of Part A, B, C & D States. It was stated m the nollfication that : " .... in a certain case of extradition of an offen der, the Supreme Court of India recently ruled that in .332 SUPREME COURT REPORTS [!969) 3 S.C.R . the changed circumstances, the English Fugitive Offen ders Act, 1881, is no longer applicable to India. There can therefore, be no question of issuing a warrant of arrest, addressed io a foreign police or a foreign court, in respect of persons who are residing outside India ex ·cept in accordance with the Code of Criminal Proce ·dure, 1898.

#2. In the circumstances, to obtain a fugitive offen der from the United Kingdom and other Commonwealth ·countries, the following procedure may be· adopied as long as the new Indian Extradition law is not enacted and the Commonwealth countries ·continue to honour our requests for the surrender of the fugitive offenders notwithstanding decisions of the Supreme Court; (a) The Magistrate concerned will issue a warrant for the arrest of the fugitive offender to Police officials of India in the usual form prescribed under the Code of ·Criminal Procedure, 1898. (b) The w0 rrant for arrest, accompanied by all such documents as would enable a prima facie case to be established ,against the accused will be submitted by the Magistrate to the Government of India in the Minis try of External Affairs, through the State Government <:oncerned.

#3. This Ministry, in consultation with the Ministries .of Home Affairs, and Law, will make a requisition for the surrender of a fugitive offender in the form of a letter, requesting the Secretary of State (in the case of dominions, the appropriate authority in the dominion) to get the warrant endorsed in accordance with law. This letter will be addressed to the Secretary of State (or other appropriate authority in case of Dominions) through the High Commissioner for India in the United Kingdom/Dominion concerned and will be accom panied by the warrant issued by the Magistrate at (a) of para 2 above and other documents received there with." The Chief Presidency Magistrate Calcutta made out the warrant for the arrest of More pursuant to that notification and sent the warrant to the Secretary, Home (Political) Department, Govern ment of West Bengal. Validity of the steps taken in accordance with the notification by the Chief Presidency Magistrate is ques tioned in this appeal. To complete the narrative, it is· necessary to refer to the Ex tradition Act 34 of 1962. The Parliament has enacted Act 34 A B c D E F G H A B c D E F G H WEST BENGAL V. JUGAL KISHORE (Shah, J.) 333 of 1962 to consolidate and amend the law relating to the extradi· It makes provisions by Ch. II for ex tion •f fugitive criminals. tradition of fugitive criminals to foreign States and to common wealth countries to which Ch. III does not apply. Chapter III deals with the return of fugitive criminals to commonwealth countries with extradition arrangements. By s. 12 it is provided : "(I ) This Chapter shall apply only to any such. commonwealth country to which, by reason of an extra dition arrangement entered into with that country, may seem expedient to the Central Government to apply the same. (2) every such application shall be by notified order, and the Central Government may, by the same or any subsequent notified order, direct that this Chapter and Chapters I, IV and V shall, in relation to any such commonwealth country, apply subject to such modifica tions, exceptions, conditions and qualifications as it may think fit to specify in the order for the '" ' 'e of imple· menting the arrangement." Section 13 provides that the fugitive crimi:.:'L; from common wealth countries may be apprehended and returned. Chapter IV deals with the surrender or return of accused or convicted persons from foreign States or commonwealth countries. By s. 19 it was provided that- ( 1) A requisition for the surrender of a person accused or convicted of an extradition offence commit ted ,in India and who is or is suspected to be, in any foreign State or a commonwealth country to which Chapter Ill does not apply, may be made by the Cen tral Government- ( a) to a diplomatic representative of that State or . country at Delhi; or (b) to th~ Gov7rnment of t~at State or country through the d1plomatlc representative of India in State or country; ~d if neither of th~se modes is convenient, the requisi tion shall be made m such other mode as is settled by arrangement made by the Government of India with that State or country. · (2) A w~rrant issued by a magistrate in India for the ap~rehens10n of any person who is, or is suspected to be, m any commonwealth country to which Chapter III applies shall be in such form as may be prescribed." R Sup Cl/69-3 334 ~:Ul'REME COURT REPORTS [1969] 3 S.C. R By cl. (a) of s. 2 the expression "commonwealth country" means "a commonwealth country specified in the First Schedule and such other commonwealth country as may be added to that Schedule by the Central Government by notification part, colony or Official Gazette, and includes every constituent specified or dependency of any added : ". But in the Schedule to the Act "Hong Kong" is not specified as one of the commonwealth country and no notification has been issued by the Government of India under s. 2(a) add ing to the First Schedule "Hong Kong" as a commonwealth country. provisions of the Extradition Act, 1962, could not be resorted to for making the requisition for surrender of the fugitive offender from Hong Kong, and no attempt was made in that behalf. It is common ground between the parties that commonwealth country so Validity of the action taken by the Chief Presidency Magis trate must therefore, be adjudged in the light of the action taken 'Pursuant to the notification issued by the Government of India on May 21, 1955. Counsel for the respondent More urged that the warrant issued by the Chief Presidency Magistrate was in tended fo be and could in its very nature be a legal warrant en forceable within India : it had no extra-territorial operation, and · could not be enforced outside India, and when the Central Magis trate Hong Kong, purported to endorse that warrant for enforce ment within Hong Kong he had no authority to do so. But this Court has no -authority to sit in judgment over the order passed by the Hong Kong Central Magistrate. The Magistrate acted in accordance with the municipal law of Hong Kong and agreed to the surrender of the offender : his action cannot be challenged in this Court. It may also be pointed out that Form II of the warrant pres cribed in Sch. V of the Code of Criminal Procedure only issues a direction under the authority of the Magistrate_ to a Police Officer to arrest a named person and to produce him before the Court. It does not state that the warrant shall be executed in any desig nated place or area. By s. 82 of the Code of Criminal Procedure a warrant of arrest may be executed at any place in India. That provision does noi impose any restriction upon the power of the Police Officer. The section only declares in that every warrant issued by any Magistrate in India may be executed at any place in India, execution of the warrant is not restricted to the local limits of the jurisdiction of the Magistrate issuing the warrant or of the Court to which he is subordinate. In Emperor v . .Vinayak Damodar Savarkar and Ors.(') the Bombay High Court considered the question whether a person who was brought to the country and was charged before a Magis- (I) I.LR. 35 Born. 225. A B c D E F G H A B c D E F G H WEST BENGAL v. JUGAL KISHORE (Shah, J.) 335 trate with an offence under the Indian Penal Code wa• entitled to challenge the manner in which he was brought into the country from a foreign country. Savarkar was charged with conspiracy under ss. 121, 121A., 122 and 123 of. the Indian Penal Code. He was arrested in the United Kingdom and brought to India after arrest under the Fugitive Offenders Act, 18 81. When the ship in which he was being brought to India was near French territory Savarkar escaped from police custody and set foot on French territory at Marseilles. He was arrested by the police officers without reference to the French police authorities and brought to India. It was contended at the trial of Savarkar that he was not liable to be tried in India, since arrest by the Indian police officers in a foreign territory was without jurisdiction. Scott, C.J., who delivered the principal judgment of the Court rejected the con tention. He observed : "Where a man is in the country and is charged be fore a Magistrate with an offence under the Penal Code it will not avail him to say that he was brought there ille gally from a foreign country." It is true that Savarkar was produced before the Court and he raised an objection about the validity of the trial on the plea that he was illegally brought to India after unlawful arrest in foreign territory. In the present case we are concerned with a stage an terior to that. The respondent More though arrested in a foreign country lawfully by the order of the Central Magistrate, Hong Kong, had not been surrendered and the invalidity of the warrant issued by the Chief Presidency Magistrate is set up as a ground for refusing to obtain extradition of the offender. But on principle of Vinayak Damodar Savarkar's case(') the contention about the invalidity of the arrest cannot affeci the jurisdiction of the Courts in India to try More if and when he is brought here. The Indian Extradition Act 15 of 1903 which was enacted to provide for the more convenient administration of the English Extradition Act, 1870 & 1873 and the Fugitive Offenders Act. 1881, remained in operation. But after January 26, 1950, India is no longer a "British Possession." Jn C. G. Menon's case( 2 ) it was decided by this Court that application of ss. 12 and 14 of the Fugitive Offenders Act, 18 81, for surrendering an offender to a Commonwealth country in pursuance of a requisition under the Fugitive Offenders Act, 1881, is inconsistent with the political It is somewhat unfortunate that the Court hear status of India. ing that case was not invited to say anything about the operation of the India (Consequential Provision) Act, 1949. But C. G. Menon's case(') was a reverse case, in that, Colonial Secretary of Singapore had made a (1) I.LR. 35 Born. 225. (2) [1955j 1S.C.R.280. requisition for 336 SUPREME COURT REPORTS [!969] 3 S.C.R. surrender of the offender for trial for offences of criminal breach of trust in Singapore. Whether having regard to the political status of India since January 26, 1950, the Fugitive Offenders Act, 18 81, insofar as it purported to treat India as a "British Possession" imposed an obligation to deliver offenders in pur suance of the India· (Consequential Provision) Act 1949 is a question on which it is not necessary to express an opinion. By the declaration of the status of India as a Republic, India has not ceased to be a part of the Commonwealth and the United King dom and several Colonies have treated the Fugitive Offenders Act, 1881, as applicable to them for the purpose of honouring the requisition made by the Republic of India from time to time. In Re. Government of India and Mubarak Ali Ahmrd(') attempt to resist in the High Court in England the requisition by the Republic of India to surrender an offender who had. com mitted offences in India and had fled justice failed. Mubarak Ali a native of Pakistan was being tried in the Courts in India on charges of forgery and fraud. He broke his bail and fled to Pakistan and thereafter to England. He was arrested on a pro- , visional warrant issued by the London Metropolitan Magistrate on the application of the Government of India. After hearing legal submissions the Metropolitan Magistrate made an order under s. 5 of the Fugitive Offenders Act, 1881, for Mubarak Ali's detention in custody pending his return to India to answer the charges made against him. Mubarak Ali then filed a petition for a writ of habeas corpus before the Queen's Bench of the High It was held that the Fugitive Offenders Act, 1881, was Court. in force between India and Great Britain on January 26, 1950, when India become a republic and it was continued to apply by virtue of s. 1 (I ) of the India (Consequential Provision) Act, 1949, and, therefore, the Magistrate had jurisdiction to make the order for the applicant's return. Pursuant to the requisitions made by the Government of India, Mubarak Ali was surrendered by the British Government. Mubarak Ali was then brought to India and was tried and convicted. One of the offences for which he was tried resulted in his conviction and an appeal was brought to this Court iiil Mobarik Ali Ahmed v. The State of Bombay('). There are other cases as well, in which orders were made by the British Courts complying with the requisitions made by the Governments of Republics within the Commonwealth, for extra dition of offenders under the Fugitive Offenders Act, 1881. An offender from Ghana was ordered to be extradited pursuant to (Consequential Provision) Act, 1960, even after the Ghana Ghana became a republic Re. Kwesi Armah('). On July 1, 1960, Ghana while remaining by virtue of the Ghana (Consequential (2) (1958] S.C.R. 328. (I) (1952] I All E.R: 1060. . (3) (1966] 2 All E.R.1006. A. B c D E F G H WEST BENGAL V, JUGAL K.ISHORE (Shah, J.) 3 37 A B c D E F G H Provision) Act, 1960, a member of the Comonwealth became a Republic. Kwesi Armah who was a Minister in Ghana fled the country in 1966 and took refuge in the United Kingdom. He was arrested under a provisional warrant issued under the Fugitive Offenders Act, 1881. The Metropolitan Magistrate being satis fied that the Act of 1881 still applied to Ghana and that a prima facie case had been made out against the applicant in respect of two alleged contraventions of the Ghana Criminal Code, 1960, by corruption and extortion when he was a public officer, commit ted K wesi Armah to prison pending his return to Ghana to undergo trial. A petition for a writ of habeas corpus before the Queen's Bench Division of the High Court was refused. Edmund Davies,' J., was of the view that the Act of 1881 applied to the Republic of Ghana, in its new form, just as it did before the coup d'etat of February 1966. The case was then carried to the House of Lords; Armah v. Government of Ghana and Another('). The questions decided by the House of Lords have no relevance in this case. But it was not even argued that a fugitive offender from a republic which was a member of the Commonwealth could not be extra dited. under the Fugitive Offenders Act, 1881. There is yet another recent judgment of the House of Lords dealing with repatriation of a citizen of the Republic of Cyprus : Zacharia v. Republic of Cyprus and Anr.(2). Warrants were issued against Zacharia on charges before the Courts in Cyprus of offences of abduction, demanding money with menaces and murder. Under the orders issued by a Bow Street Magistrate under s. 5 of the Fugitive Offenders Act, 1881, Zacharia was _ committed to prison pending his return to Cyprus. An applica tion for a writ of habeas corpus on the ground that the offences alleged against him were political and that the application for the return of the fugitive was made out of motive for revenge was rejected by the Queen's Bench Division and it was ordered that Zacharia be repatriated. The order was confirmed in appeal to the House of Lords. Merely because for the purpose of the extradition procedure, in a statute passed before the attainment of independence by the former Colonies and dependencies, certain territories continue to be referred to as "British Possessions" the statute does not be come inapplicable to those territories. The expression "Bijtish Possession" in the old statutes merely survives an artificial mode of reference, undoubtedly not consistent with political realities, but does not imply for the purpose of the statute or otherwise political dependence of the Government of the territories referred It is not for the Courts of India to take umbrage at expres to. sions used in statutes of other countries and to refuse to give effect to Indian laws which govern the problems arising before them. (1) [1966] 3 All E.R. 177. (2) [1962] 2 Ail E.R. 438. 338 SUPREME COURT REPORTS [1969] 3 S.C.R. It is interesting to note that by express enactment the Fugitive Offenders Act, 1881, remains in force as a part of the Republic of Ireland : , see Ireland Act, 1949 (12, 13 and 14 Geo. 6 c. 41). In Halsbury s. Laws of England, 3rd Edn., Vol. 5 Art. 987, p. 433-m dealmg with the expression "Her Majesty's Dominions" m old statutes, it is observed : A ''The term 'Her Majesty's dominions' means all the territories under the sovereignty of the Crown and the In. speciai cases it territ~)fial water~ a~jacent thereto. may mclude terntones under the protection of the Crowri and mandated and trust territories. References to Her Majesty's dominions c~ntained _in statutes passed before India became a republic are still to be construed as in cluding !ndi~; it is _u~ual t.o name Jndia separately from Her Ma1esty s donumons m statute!. passed since India became a republic." In foot-note ( 1) on p. 433 it is stated, British India, which in cluded the whole of India except the princely States; and che Government of India Act, 1935 as amended by s. 8 of the India and Bunna (Miscellaneous Amendments) Act, 1940, fanned part of Her Majesty's dominions and was a British possession, although it was not included within the definition of "colony". The territory comprised in British India was partitioned between the Dominions of India and Pakistan (Indian Independence Act, 1947), but the law relating to the definition of Her Majesty's dominions was not thereby changed, and it was continued in being by the India (Consequential Provision) Act, 1949 ( 12, 13 & 14 Geo. 6 c. 92), passed in contemplation of the adoption of a re publican constitution by India. India is now a sovereign republic, but that by itself does not render the Fugitive Offenders Act, 1881, inapplicable to India. If the question were a live question, we would have thought it necessary to refer the case to a larger Bench for considering the true effect of the judgment in C. G. Menon's case('). But by the Extradition Act 34 of 1962 the Extradition Act, 1870 and the latter Acts and also the Fugitive Offenders Act, 1881, have India of been repealed and the question about extradition by fugitive offenders under those Acts will not hereafter aris.e. We are not called upon to consider whether in exercise of the power under the Fugitive Offenders Act a Magistrate in India may direct extradition of a fugitive offender .from a "British Possession". who has taken refuge in India. It is sufficient to observe that the Colonial Secretary of Hong Kong was according to the law appli cable in Hong Kong competent to give effect to the warrant issued· by the Chief Presidency Magistrate, Calcutta, and the Central (!) [1955] l S.C.R. 280. 8 c D E F G H WEST BENGAL V. JUGAL KISHORE (Shah, ].) 339 A B c D E F G H through that the notification fault can be thought Magistrate, Hong Kong, had jurisdiction under the Fugitive Offen ders Act, and, after holding inquiry, to direct that ~ore be s~r­ rendered to India. The order of surrender was valid according to the law in force in Hong Kong, and we are unable to appreciate the grounds on which invalidity can be attributed to the warrant issued by the Chief Presidency Magistrate, Calcutta, for the an:est of More. That the Chief Presidency Magistrate was com petent to issue a warrant for the arrest of More agains~ whom there was prima facie evidence to show that he had committed an offence in India is not denied. If the Chief Presidency Magistrate had issued the warrant to the Commissioner of Police and the Commissioner of Police had approached the Ministry of External the local Gov Affairs, Government of India, either to secure ernment or directly with a view the assistance of the Government of Hong Kong for facilitating extradition Qf More, no found. But Gupta, J ., and Mukherjee, J ., Government of India setting out the procedure to be followed by a Magistrate, where the offender is not in Indian territory and his extradition is to be secured, amounted to an invasion on the autho rity of the Courts. We do not think that any such affront is intend ed by issuing the notification. The Fugitive Offenders Act, 1881. had not been expressly repealed even after January 26, 1950. It had a limited operation: the other countries of the Common wealth were apparently willing to honour the itntemational com mitments which arose out of the provisions of that Act. But this Court on the view that since India had become a Republic, held that the Fugitive Offenders Act could not be enforced in this country, presented to the Government of India a problem which had to be resolved by devising machinery for securing the presence of offenders who were fugitives from justice. The notification issued was only in the nature of advice about the procedure to be followed and did not in any manner seek to impose any executive will upon the Courts in matters judicial. Observations made by Mukhcrji, J., that the notification issued by the Central Govern to issue the ment authorising the Chief Presidency Magistrate warrant in the manner he had done, came "nowhere near the law" and "to a Court of law it is waste paper beneath its notice" appear to proceed upon an incorrect view of the object of the notification. issued by The Chief Presidency Magistrate had the power to issue the warrant for the arrest of More, because there was prima facie evidence before him that More had committed certain offences which he was competent to try. The warrant was in Form TI of Sch. V of the Code of Criminal Procedure. If the warrant was to .be successfully executed against More who was not in India. It aSSJStance of the executive Government had to be obtained. is not an invasion upon the authority of the Courts when they are informed that certain procedure may be followed for obtaining 340 SUPREME COURT REPORTS (1969] 3 S.C.R. the assistance of the executive Department of the State in securing through diplomatic channels extradition of fugitive offenders. In pursuance of that warrant, on the endorsement made by the Cen tral Magistrate, Hong Kong, More was arrested. The warrant was issued with the knowledge that it could not be enforced within lndia and undoubtedly to secure the extradition of More. Pur suant to the warrant the Ministry of External Affairs, Government of India, moved through diplomatic channels, and persuaded the Colonial Secretary of Hong Kong to arrest and deliver More. Issue of the. warrant and the procedure followed in transmitting the warrant were not illegal, not even irregular. One more argument remains to be noticed. It is true that under the Extradition Act 34 of 1962 no notification has been issued including Hong Kong in the list of the Commonwealth countries from which extradition of fugitives from justice may be secured. The provisions of the Extradition Act, 1962, cannot be availed of for securing the presence of More for trial in India. But that did not, in our judgment, operate as a bar to the requisi tion made by the Ministry of External Affairs, Government of India, if they were able to persuade the Colonial Secretary, Hong If the Colonial Kong, to deliver More for trial in this country. S--.cretary of Hong Kong was willing to hand over More for trial in this country, it cannot be said that the warrant issued by the Chief Presidency Magistrate for the arrest of More with the aid of which requisition for securing his presence from Hong Kong was to be made, was illegal. We are unable to agree with the High Court that because of the enactment of the Extradition Act 34 of 1962 the Government of India is prohibited from securing through diplomatic channels the extradition of an offender for trial of an offence committed within India. There was, in our judgment, no illegality committed by the Chief Presidency Magistrate, Calcutta, in sending the war rant to the Secretary, Home (Political) Department, Government of West Bengal, for transmission to the Government of India, Ministry of External Affairs, for taking further steps for securing the presence of More in India to undergo trial. A B c D E F The appeal must therefore be allowed and the order passed by the High Court set aside. The writ petitioq filed by More must be dismissed. G Y.P. Appeal a/l~wed.