Authored By : Jwala Prasad, Robert Lindsay Ross, Jwala Prasad, Robert Lindsay Ross

Jwala Prasad, J.

1. The case raises a very important question relating to the power of the High Court with respect to ugitive offenders. The petitioner was arrested in Nepal on a charge of abetment of murder and was put in Birgunj Jail within the jurisdiction of Nepal Government. He, however, managed to escape from the jail and came to the neighbouring British territory in Bheriharwa, within the jurisdiction of the Bhaura Police Station. The Sub-Inspector of Bhaura, on 12th April 1921, reported the above fact to the Sub-Divisional Officer of Bettiah requesting him to communicate with the Hakim of Birgunj and to pass an order for the Arrest of the petitioner. On 14th April the Hakim of Birgunj wrote to the Sub-Divisional Officer of Bettiah requesting him to have the petitioner arrested and promising to send the evidence of nationality and criminality to the Sub-Divisional Officer of Bettiah. Thereupon, under the orders of the Sub-Divisional Officer the petitioner was arrested on the 16th April 1921 and was remanded to Jail Hajat till the 1st May 1921. He remained in jail till the 31st May 1921 when he was released on bail under the orders of the Sessions Judge of Muzaffarpur. On the 11th June 1921 the Hakim of Birgunj forwarded to the Sub-Divisional Officer of Bettiah the evidence of nationality and criminality referred to in his letter of the 14th April 1921. The British Envoy at the Court of Nepal sent the extradition warrant under S. 7 of Act XV of 1903 (Indian Extradition Act) dated the 1st August 1921 to the District Magistrate of Champaran for the arrest and delivery of the petitioner to the Nepalese Officer of the Birgunj Amini Court. The petitioner was then arrested on the 2nd September 1921 and was remanded to Hajat pending arrangements for escort from Nepal authorities.

2. His petition for bail having been rejected on the 3rd September 1921 the Sub- Divisional Officer cancelled his order of the 2nd September and sent his report and finding to the District Magistrate to be forwarded to the higher authorities under S. 3 (3), Cl. 6 of the Extradition Act, The District Magistrate forwarded the papers of the case to the Commissioner of the Tirhut Division by his letter No. 8176, dated the 30th September 1921 pointing out that the coder of the Magistrate sending the case to the District Magistrate for reference to the higher authorities under S. 3 (3), Cl. 6 was wrong as well as his omission to report the detention of the accused for more than two months. The District Magistrate thought that the case was governed by S. 7 of the Extradition Act, that the accused was arrested under S. 10 of the Act, that the Magistrate was bound to execute the warrant and to fort ward the petitioner to the Nepal authorities as directed therein, and that the petitioner's only course was to move the Local Government under S. 15 of the Act. The Commissioner agreed with the District Magistrate and returned the papers to him with the result that the matter has not been referred to the Local Government and the petitioner is now in Bettiah Jail to be forwarded to the Nepal authorities. In the meantime the petitioner came up to this Court with a petition challenging the jurisdiction of the Bettiah Magistrate to arrest him and detain him in the jail as stated above. A rule was accordingly issued by this Court upon the District Magistrate to show cause and the case has now come before us.

3. The warrant in execution of which the petitioner has been arrested is expressed to have been issued under. 7; Act XV of. 1903 (The Indian Extradition Act) and is addressed to the District Magistrate of Champaran, Motihari. It runs as follows:

4. "whereas Jaipal Bhagat, being a Nepalese subject, accused of absconding from jail has fled from Nepal to British territory and is at present in your jurisdiction this warrant is to authorise you to arrest end deliver the above-named person to the Nepalese Officer of the Biraganj Amini Court at Birganj in Nepal." S.7 applies only to an, "extradition offence". "Extradition offence" has been defined by S. 2 of the Act to mean "any such offence as is described in the First Schedule" Absconding from jail is not one of the offences mentioned in that Schedule. Therefore, S. 7 has no application at all and the warrant in question issued by the British Envoy at the Court of Nepal for the arrest of the petitioner is without jurisdiction. The report of this District Magistrate to the Commissioner referred to above shows that the petitioner was arrested under the provisions of S. 10 of the Act; but that section could only apply if the warrant under S. 7 was legal; but, as shown above, the warrant was wholly illegal and without jurisdiction, Therefore, the arrest of the petitioner also was without any authority

5. No doubt, S. 15 of the Act empowers the Government of India and the Local Government to stay any proceedings taken under Chapter III of the Act and to direct any warrant to be cancelled and the person arrested to be discharged. But that does not necessarily oust the jurisdiction of this Court to interfere in a case where the action under the Act has not been taken under a valid warrant.

6. In Rudolph Stallman, In re (1912) 39 Cal. 164 =15 C.W.N. 1058=12 I. C. 273=14 C. L. J. 375. it was pointed out that the section does not take away the power of the Court to issue a habeas corpus or directions in the nature of that writ, inasmuch as neither that section nor any other provision of the Act has expressly taken away the power of the Court with respect to habeas corpus. Similar was the view expressed in the case of Emperor V. Haseinaly Nizally (1905) 7 Bom. L.R. 463. Russell, J., observed as follows :-" As was pointed out by Mr. Branson in his argument, there was some difficulty in ascertaining what the accused really were praying for; but Mr. Dabar in his reply put it thus:-' This Court can order the District Magistrate to hold his hand until the warrant is shown to be legal.' The objection to this, however, is that by S. 15 of the Extradition Act it is the Government of India or the Local Government and (not the High Court) who may, by order, stay any proceedings taken under this Chapter and may direct any warrant issued under this Chapter to be cancelled. I his section ousts the jurisdiction of this Court to inquire into the propriety of the warrant but leaves open the question of this Court's power to interfere with a Magistrate's action, if it was proved that such action was consequent upon a warrant issued by a Political Agent which was plainly illegal,"

7. The above remark exactly applies to the present case. The procedure for requisitioning the surrender of any person accused of having committed any offence, not necessarily an extradition crime, is laid down in S, 9 of the Act but the requisition in such a case has to be made 11 to the Government of India or to any Local Government." In the present, case no such requisition was made, therefore, the warrant in question, which was addressed to the District Magistrate of Champaran, cannot possibly be supported under S. 9 either vide also Gulli Sahu v. Emperor (1914) 41 Cal. 400=21 I. C. 998 18 C.W. N.869.

8. The contention of the learned Counsel on behalf of the petitioner as to the illegality of the warrant and the want of jurisdiction of the Magistrate of Champaran to arrest the petitioner and detain him in jail under the authority of that warrant appears to us to be substantial. We, however, do not think that there is any substance in the other contentions the learned Counsel. If proper action was taken under S. 9 of the Act, perhaps the objection of the learned Counsel as to legality of the arrest and detention of the prisoner would not have been valid nor his contention that a fugitive offender of the Nepal territory could not be arrested in British India for offences other than those enumerated in the Treaty between the Nepal Government and the British Government, dated the 10th February 1855 A. D., together with memorandum, dated 24th June 1881 supplemented thereto.

9. Reliance is placed upon S. 18 of the Extradition Act to show that S. 9 should be deemed to have been controlled by the Treaty, inasmuch as nothing in the Act has been declared to derogate from the provisions of the Treaty for the extradition of offenders. That contention does not appear to be sound. If the Treaty prohibits extradition for offences not specified therein, such prohibition overrides the provisions of the Schedule by 'virtue of S. 18, but there is no such-prohibition in the Treaty and, therefore, S. 9 does not in-any way derogate from the provisions of treaty. The Act practically enhances the power of the Nepal Government to requisition the authorities in the British territories to arrest and deliver fugitive offenders of their territory.

10. There appears to be some misapprehension of the offence said to have been committed by the prisoner in Nepal. The report of the District Magistrate says that the petitioner escaped from the Nepal territory where he was kept awaiting trial for murder. The evidence forwarded by the Nepal Government to prove the criminality of the prisoner disclose " would only at the best " a charge of abetment of murder. Abetment of murder is not one of the offences mentioned in the Treaty. Section 13 of the Act, however, makes the provisions of Chapter III apply to abetment of offences also. The evidence, however, forwarded by the Nepal authority does not disclose anything against the petitioner beyond a vague hearsay evidence of his having offered to certain people some money to cause murder of certain persons.

11. The matter raised in this application is of great importance and we do not think that we would be justified in passing final orders in this case until we hear the learned Government Advocate. We, therefore, request the learned Government Advocate to go through the papers of the case and to appear in the case at an early date.

Robert Lindsay Ross, J.

12. I agree.

Jwala Prasad and Robert Lindsay Ross, JJ.

13. We have heard the learned Government Advocate who says that he has considered the law and authorities in the case and that he cannot take any exception to the view expressed in our decision of the 23rd November 1921.

14. We, therefore, hold that the petitioner was arrested under an illegal warrant and we, therefore, direct that he be released at once.