Ramendra Nath Dutt, J.

1. The Government of Sikkim made a requisition to our Central Government for surrender of the Petitioner, Hari Sankar, for his trial by a Sikkim Court for an offence of murder alleged to have been committed by him in Sikkim. On receipt of this requisition the Central Government issued an order under Section 5 of the Extradition Act, 1962, to the District Magistrate, Darjeeling, directing him to enquire into the case. The Petitioner was thereafter taken into custody and later released on bail on March 18, 1968. One Sri R.K. Debnath, Magistrate, First Class, held the instant enquiry and on January 2, 1969, found that a prima facie case had been made out in support of the requisition of the Government of Sikkim and again took the Petitioner into custody awaiting orders of the Central Government. The result of his enquiry was also directed to be sent to the Central Government. Thereafter, on February 17, 1969, the Petitioner obtained the Rule in Revision Case No. 132 of 1969 calling upon the District Magistrate, Darjeeling, to show cause why the order of Sri Debnath should not be set aside and the proceeding for extradition quashed. Then on March 5, 1969, the Petitioner obtained the Rule in Criminal Misc. Case No. 71 of 1969 for a writ in the nature of habeas corpus against his detention in prison.

2. These two Rules have been heard together as they raise the same question.

3. Mr. Roy first contends that no proceedings under the Extradition Act could be taken against the Petitioner on the requisition of the Sikkim Government as there was no notified order under Section 3(1) of the Extradition Act in respect of Sikkim. Section 3(1) of the Act reads as follows:

The Central Government may by notified order direct that the provisions of this Act other than chapter III shall apply (a) to such foreign state or part thereof; or (b) to such commonwealth country or part thereof to which chapter III does not apply ; as may be specified in the order.

4. It is not disputed that Sikkim is a foreign State as defined in Clause (e) of Section 2 of the Act. Further, it is not disputed before us that-Sikkim is a 'treaty State' as defined in Clause (j) of Section 2 of the Act, which means that Sikkim is a State with which India has an extradition treaty in operation. Mrs. Moitra, who appears for the State in these matters, produces the relevant notified order under Section 3(1) of the Act concerning Sikkim. This is notification No. G.S.R. 1096 dated July 7, 1966, of the Ministry of External Affairs, Government of India. This notification shows that in exercise of the powers conferred by Sub-section (1) of Section 3 of the Extradition Act the Central Government has directed that the provisions of the said Act other than chap. Ill shall apply to Sikkim with effect from the date of the notification. It will thus appear that there is a notified order in respect of Sikkim under Section 3(1) of the Act.

5. Sub-section (3) of Section 3 of the Act is as follows:

(3) Where the notified order relates to a treaty State,-

(a) it shall set out in full the extradition treaty with that State ;

(b) it shall not remain in force for any period longer than that treaty ; and

(c) the Central Government may, by the same or any subsequent notified order, render the application of this Act subject to such modifications, exceptions, conditions and qualifications as may be deemed expedient for implementing the treaty with that State.

Mr. Roy argues that in this notified order the extradition treaty between India and Sikkim has not been set out in full. What has been set out in the notified order is Article IX of the said treaty. He contends that this is not full compliance with the requirements of Section 3(3) of the Act and, as such, the notification in question cannot operate as a notified order under Section 3(1) of the Act. 'Extradition treaty' has been defined in Clause (d) of Section 2 as meaning a treaty or agreement made by India with a foreign State relating to the extradition of fugitive criminals. Under Section 3(3) what is required to be set out in full is the 'extradition treaty'. Now 'extradition treaty' means a treaty or an agreement relating to the extradition of a fugitive criminal. A treaty between India and a foreign State may contain matters other than what relates to the extradition of a fugitive criminal. 'Extradition treaty' is only that part of the treaty which relates to the extradition of fugitive criminals. The rest of the treaty which does not relate to the extradition of fugitive criminals is not an 'extradition treaty' within the meaning of the Act. A treaty between India and a foreign State may relate only to extradition of fugitive criminals, and in that case the entire treaty has to be set out in the notified order. But when the treaty relates to other matters too, what is necessary is that the agreement relating to the extradition of the fugitive criminals or, in other words, that part of the treaty which relates to the extradition of fugitive criminals, should be set out in the notified order. Article IX of the treaty between India and Sikkim relates to extradition of fugitive criminals and that Article has been set out in full in the notified order. We are, therefore, of the view that there has been full compliance with the requirements of Section 3(3) of the Act and, as such, we hold that there is a notified order under Section 3(1) of the Act concerning Sikkim. The instant extradition proceeding is, therefore, a competent proceeding for extradition of the Petitioner.

6. Mr. Roy next contends that since there was a proceeding against the Petitioner under Section 188 of the Code of Criminal Procedure, proceedings for his extradition is barred under the proviso thereunder. This argument is not tenable. True, before the Petitioner was taken into custody on the basis of the requisition from the Government of Sikkim, he was arrested under Section 54 of the Code and produced before a Magistrate who released him on bail. But there was no trial and, if the alleged offence for which he is sought to be extradited was committed in India, subsequent proceeding for his trial would not have been barred. The proviso under Section 188 of the Code is not, therefore, attracted.

7. Mr. Roy then contends that Sri R.K. Debnath had no jurisdiction to make the enquiry and the enquiry made by him cannot be any legal basis for the extradition of the Petitioner. We have said that the Central Government has under Section 5 of the Act directed the District Magistrate to make the enquiry. It appears, however, that the District Magistrate has not himself made the enquiry nor has he directed Sri R.K. Debnath to make the enquiry. What we find is that the District Magistrate forwarded a copy of the Central Government's order directing him to make the enquiry to the Sub-divisional Magistrate for information with request to enquire into the matter and to furnish his report at a very early date. The Sub divisional Magistrate in his turn did not make the enquiry himself but made an order to this effect on August 24, 1968-

Seen copy of the letter No. T. 413/10/67 dated 22. 7. 1968 and its enclosures from the External Affairs Ministry, Government of India, regarding extradition of one Harishankar alias Shib Shankar to Sikkim received through District Magistrate, Darjeeling, with his memo. No. 1859 J. dated 20. 8. 1968. Shri R.K. Debnath, Magistrate 1st class, will kindly hold enquiry into the matter and report in accordance with the provisions contained in Section 7 of the Extradition Act, 1962.

So what we find is that the Sub divisional Magistrate directed Sri R.K. Debnath, Magistrate, First Glass, to hold the enquiry, and on the basis of this direction Sri Debnath held the enquiry. On the face of it, the Sub divisional Magistrate had no authority or jurisdiction to direct Sri R.K. Debnath to make the enquiry. The Central Government directed the District Magistrate to make the enquiry. The District Magistrate should himself hold the enquiry. He has no jurisdiction to direct some other Magistrate to hold the enquiry. True, 'Magistrate' has been defined under Clause (g) of Section 2 of the Act as a Magistrate of the First Class or a Presidency Magistrate. That means that the Central Government could direct any First Class Magistrate to hold the enquiry and the Magistrate who was thus directed would have been competent to hold the enquiry. But in this case the Central Government directed the District Magistrate to hold the enquiry and the District Magistrate has no power to delegate the enquiry to some other Magistrate. Even if the District Magistrate had that power, it was he who could direct Sri Debnath to hold the enquiry, but in this case Sri Debnath has not been directed by the District Magistrate. He has been directed by the Sub divisional Magistrate, who was in his turn directed by the District Magistrate to hold the enquiry. The enquiry made by Sri R.K. Debnath has not, therefore, been in accordance with the provisions of the Extradition Act and, as such, cannot be the basis for surrender of the Petitioner to the Government of Sikkim by the Central Government. The order made by Sri Debnath on January 2,1969, must therefore be set aside.

8. Mr. Roy has taken some other points which more or less relate to the facts of the case. It is not necessary to consider them at this stage in view of the order we propose to make.

9. Since we have found that there is a proper requisition from the Government of Sikkim and there is a proper direction from the Central Government under Section 5 of the Act for an enquiry against the Petitioner, it cannot be said that the Petitioner is being detained without lawful authority. The application under Section 491 of the Code of Criminal Procedure for a writ in the nature of habeas corpus must therefore fail, but the enquiry made by Sri Debnath, the order made by him on January 2, 1969, and the report made by him to the Central Government are however quashed. The District Magistrate will now himself hold the enquiry as directed by the Central Government and proceed in accordance with law. Pending the enquiry the Petitioner be released on bail to the satisfaction of the District Magistrate. The enquiry is to be completed within one month of the receipt of the record by the District Magistrate, and if the District Magistrate proceeds under Section 7(4) of the Act the Central Government should take necessary steps under Section 8 of the Act, within two months thereafter, failing which the Petitioner will be at liberty to move this Court under Section 24 of the Act.

10. In the result, the Rule in Misc. Case No. 71 of 1969 is discharged, but the Rule in Revision Case No. 132 of 1969 is made absolute.

11. Let the records be sent down at once to the District Magistrate, Darjeeling.

A.P. Das, J.

12. I agree.