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TMI Blog1967 (4) TMI 217X X X X Extracts X X X X X X X X Extracts X X X X ..... or of Police of the detective department, one Benoy Kr. Mukherjee, drew up a petition on May 11, 1965, to the address of the same Magistrate, stating inter alia: Jugal Kishore More and others "were parties to a criminal conspiracy in Calcutta between May 1961 and December 1962 to defraud the Govt. of India in respect of India's Foreign Exchange." Sub-inspector Mukherjee therefore, prayed that the Magistrate "would be pleased on perusal of the relevant records and recording necessary evidence to issue non-bailable arrest warrants endorsed to Commissioner of Police, Calcutta" against the said More (omitting the names of other persons not material for the present purpose)" for causing execution" at Hong Kong: vide the second sub-paragraph of paragraph 17 of Sub-Inspector Benoy Kr. Mukherjee's petition dated May 11, 1965, to the address of the Chief Presidency Magistrate, at page 568 of file III of the Magistrate's records of the case. The petitioning Sub-Inspector prayed for a little more too: for the favour of forwarding "the warrants with relevant records and evidence to the Ministry of External Affairs, Govt. of India, through proper c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bengal, who be requested to take all necessary steps with a view to their execution. Fix 30-12-65 as the return able date, X X X X X A copy of this order be sent to Commissioner of Police, Calcutta, for information." 5. What was so ordered was carried out on July 30, 1965. A non-bailable warrant of arrest against Jugal Kishore More, Manager, Premko Traders, of 7 Wyndham Street and 28 King's Road, Hong Kong, duly written up in form No. II, schedule V, to the Code of Criminal Procedure, just the form Section 75. Sub-section (1), read with Section 555 thereof, contemplates, and directed to the Commissioner of Police. Calcutta was signed by the presiding officer, namely, the Chief Magistrate, on July 30, 1965, and forwarded too that very day with a covering letter, also dated July 30, 1965, and bearing No. 2175, over the signature of the Magistrate, to the Secretary to the Government of West Bengal, Home (Political) Department. Along with the warrant of arrest were forwarded too, amongst others, the attested copies of evidence recorded by the Magistrate and the photostat copies of documents tendered by the prosecution, just "in accordance with the procedure laid dow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 26 of Part of the Fugitive Offenders Act, 1881", the last two paragraphs of the endorsement reading: "And whereas Order in Council S. R. & O. No. 28 of 1918, by virtue of which Part II of the Fugitive Offenders Act 1881 was made to apply to a group of British possessions and Protective States including Hong Kong and British India, appears to remain in full force and effect so far as the law of Hong Kong is concerned. Now. therefore, under Section 13 of the Fugitive Offenders Act 1881. I hereby endorse this warrant (the Chief Presidency Magistrate's warrant) and authorise and command you, in Her Majesty's name, forthwith to execute this warrant in the Colony to apprehend the said Jugal Krishna More, son of Hanuman Prosad More, wherever he may be found in the Colony, and to bring him before a magistrate of the said Colony to be further dealt with according to law." B. arrest two days later, namely, on November 24, 1965, at Hong Kong of More, who appeared before the Central Magistrate on the same day, only to be remanded until December 1, 1965. "on HK 510.000,00 bail"; C. the "Ruling" by the Hong Kong Magistrate on April 4, 1966, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... did, and in the manner he did on July 30, 1965, against the petitioner Brother Amaresh Roy finds in favour of such jurisdiction. Brother Alak Gupta does not. 11. On a difference as this, what is apt to call one's attention first is Section 32 of the Procedure Code, which bears: "A warrant of arrest may be executed at any place in India." We all know, and all too well, what is India. But, in the forensic realm, that is not per-haps enough. The question is: what was, a law, India on July 30, 1965, when the Chief Presidency Magistrate had issued the warrant of arrest against the petitioner More? The answer is, in the words of Section 3, Clause 28, of the Central General Clauses Act, 10 of 1897, in so far as it is material here: "India" shall mean, -- (c) as respects any period after the commencement of the Constitution, all territories for the time being comprised in the territory of India. Barring 15 articles of a provisional and transitional nature, which do not bulk large here, the bulk of the Constitution came into force on January 26, 1950. That day, therefore, is the date of the commencement of the Constitution: article 394. And it was years ahead ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which it was never intended? 12. Brother Amaresh Roy holds, it does not. He sees no illegality in what the Chief Presidency Magistrate has done. He does not, for three reasons, the first of which is: "Jurisdiction of the Court of the Chief Presidency Magistrate of Calcutta must be viewed at the present stage only upon the allegations made and not by what may be established at any later stage of the proceeding." What are the allegations made? Again, to Sub Inspector Mukherjee's petition dated May 11, 1965, and filed in the court of the Chief Presidency Magistrate on May 29 next. It bears: Jugal Kishore More and others "were parties to a criminal conspiracy in Calcutta between May 1961 and December 1962 to defraud the Government of India in respect of India's foreign exchange." just what I have extracted out in paragraph 2 ante Upon such allegations, the Chief Presidency Magistrate has undoubtedly the jurisdiction to try or inquire into the offence, according as the prescription of the law is, or the Chief Presidency Magistrate failing some other competent tribunal, e.g., the Special Court, has the obvious jurisdiction to try such offence, just as th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o issue Warrant of Arrest in respect of a person without reference to the territory where that person may be at the date of issue of Warrant Execution of that Warrant as it can be effective in India and not outside by dint of Section 82 Cr P C But that is not a reason to curtail the power to issue the Warrant. If the person can be found in India, he can be arrested by execution of Warrant as it is in India." 14. Let the Procedure Code's some of the relevant provisions, as also the Penal Code's including those referred to by Brother Amresh Roy and by Mr. Dutt in the course of his address before me be submitted to somewhat of a detailed examination first in the context of facts I see before me The second division of chapter 6. captioned B-Warrant of Arrest-, opens with Section 75 in conformity with which the impugned warrant prima facie is. by itself this section presents no difficulty But so soon as you pass on to the next section, Section 76, a difficulty shows its head Section 76 says inter alia: 'A court issuing a warrant for the arrest of any person may direct security to be taken When it pleases the court to direct so and security is, in fact, taken the office ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Kong authorities through the Commission of India at Hone Kong, Proper use indeed of Section 75 and of chapter 6 with vengeance (More of which hereafter in paragraphs 15-17 infra.) Ignoring, for the time being, such extravagant use of Section 75. It is plain that the Commissioner of Police, to whom the warrant is directed under the colour of Section 77 which the Code never intended to be pressed into service in the manner it has been in the present case is incapable of doing what Section 81 requires him to do so lone as the Government of India, a body not even referred to by this catena of sections does not succeed in landing More within the limits of his jurisdiction Thus if the Commissioner of Police is impotent to execute the impugned warrant on his own--and he is so potent to execute a warrant within his jurisdiction--any other police-officer whose name he can endorse upon the warrant, would be equally impotent thereby rendering another section: Section 79 unworkable. What the mandate of Section 82 limiting the periphery within which a warrant may be executed : "at any place in India," has been noticed. (See paragraph 11 ante.) May be noticed too, if only to understan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an offence out of India etc.) 'may be dealt with in respect of such offence as if it had been committed at any place within India at which he may be found." But More is charged with having committed an offence in India, not out of India, as the petitioning sub-inspector (Mukherjee) clearly says, and as the Chief Presidency Magistrate records too no less clearly. So, Section 188 can do no duty here. Even if it be that More has committed an offence out of India and that he is a citizen of India too, Section 188 remains as idle as ever, for the simple reason that he is not found in India. Section 188 is not, therefore, for such a one. It is for one, who may be found in India, no matter that he has committed an offence out of India No matter, because of the legal fiction is Section 188 by which it will be deemed as if he had committed an offence at any place in India at which he may be found. If, fortunately for the prosecution, More were actually found in India, no matter how, the legal "battle" it has been my privilege to see would have been irrelevant. More's arrest would have been then perfectly legal, the manner in which he has fallen into the hands of justi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... traterritorial jurisdiction as respects offences committed (i) by citizens of India in any place without and beyond India, or (ii) by any person on any ship or aircraft registered in India, wherever it may be: a "floating" India, so to say, in any part of the globe. It is only a corollary to Section 4 of the Penal Code which provides for extension of the Code to extra-territorial offences. Again, whereas Section 4 of the Penal Code confines itself to any offence committed (1) by any citizen of India in any place without and beyond India and (2) by any person on any ship or aircraft registered in India, wherever it may be. Its procedural counterpart (section 188) speaking the same language, as it must, there is another section of the Penal Code, Section 3, which also pro-vides for the extra-territorial operation of the Code to any person, liable by Indian law, to be tried for an offence committed beyond India, in the same manner as if it had been committed within India. But. In vain, does one look to these provisions for an authority upon the Chief Presidency Magistrate to issue the warrant in the manner he has done. In spite of such extra-territorial operation the warrant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 75 notwithstanding. It is a case of taking proceedings under the colour of Section 75 which does not and cannot, apply to facts on the basis of which its use was sought by Sub-inspector Mukherjee and permitted by the magistrate. 16. A straightforward course for the learned magistrate would have been to say: 'I am not going to send my warrant under Section 75 to the Home Secretary. I am not, because I do not find any law under which I can do so. I am sending it instead to the Commissioner of Police to whom indeed I have directed the warrant under Section 77. How he will execute it is his business, not mine.' Had he done so, he would not have laid himself open to the charge of exercising his power under the colour of Section 75. And it would have been open to the Commissioner of Police to execute the warrant whenever More was to be found within his jurisdiction. Fully aware of the true facts, the learned magistrate suffered Section 75 to be called in aid, though its aid was never intended by the Code in a situation as this involving transmission of the warrant to a secretary to the State Government instead of to the Commissioner of Police, for further transmission with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... will go a different way unknown to the Code, he has made a colourable exercise of his power thereunder An extreme illustration has been taken in the course of discussions at the Bar. Say a magistrate issues a warrant, which he has the power to do. to arrest a person with a view to lighting his cigarette. Will you strike down such warrant, though the magistrate's power is there? I will, and in half a second More, in order to show my grave displeasure of such an un- pardonable abuse of the process of the court, I shall recommend that such a magistrate, who is a menace to law and society, be divested of his magisterial powers forthwith. So, in the instant case, the magistrate being aware of the purpose for which the warrant is sought -- a purpose the Code has no truck with -- has very much to contribute to the illegality of the impugned warrant, And, in the circumstances, the only conclusion that can be come to, in my judgment, is the conclusion come to by Brother Alak Gupta, if I may say so, with respect : "A warrant under Section 75 is clearly not intended for the purpose for which it is sought to be used in the instant case ..... I am afraid it is not possible to consid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nited Kingdom, British Dominions and foreign countries in which the Crown exercised foreign jurisdiction, Part I of the Act was to be followed before surrendering them. And that invariably meant : no prima facie case, no extradition, even after the apprehension of the fugitive on the foot of a provisional warrant. That is the combined effect of Sections 3-5 in Part I of the Act. Two, extradition inter se between British possessions was treated on a different footing. Such possessions were grouped together according to their contiguity by an Order in Council and regarded as one integrated territory, with the result that the test of a prima facie case, of "a strong or probable presumption that the fugitive committed the offence mentioned in the warrant", to quote from Section 5, was not required. That is Part II of the Act captioned : Inter-Colonial Backing of warrants, and Offences, Section 12 wherein providing that this part shall apply only to those groups of British possessions to which, by reason of their contiguity or otherwise, it may seem expedient to Her Majesty to apply, by periodic Orders in Council, and Section 14 wherein providing that the magistrate, on being ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adition of offenders from Commonwealth countries, it consists of three paragraphs. The first paragraph recalls that "in a certain case of extradition of an offenders" the Supreme Court "recently ruled" on the non-applicability of the Fugitive Offenders Act 1881 "in the changed circumstances" (Obviously the Menons' case is being referred to.) What is, therefore, stressed is the issue of a warrant of arrest for persons residing outside India in accordance with the Code of Criminal Procedure. 1898, there being no further question of the issue of a warrant "addressed to a foreign Police or a foreign Court" Here ends the first paragraph. 21. The second paragraph lays down a procedure which "may be adopted 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 decision of the Supreme Court." The procedure is. In the words of the circular : "(a) The Magistrate concerned will issue a warrant for the arrest of the fugitive offenders to police officials of India in the usual form prescribed under the Code of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s action did not certainly enhance the prestige of the Judiciary of the State." is the second main point on which (sic) learned brothers have differed. 24. With the greatest respect, I prefer Brother Alak Gupta's opinion to Brother Amaresh Roy's. A circular is a circular, no matter what exalted quarters it comes from. It is neither a statute nor a statutory instrument. It cannot be either. If instruction (b). Brother Amaresh Roy objects to, is bad, for precisely the same reason, instruction (a), his Lordship does not object to, must go down as bad. Indeed, one instruction goes with the other. In the expression : "notwithstanding decision of the Supreme Court" the circular uses, I read no disparagement of the Supreme Court. The expression goes with 'other commonwealth countries continuing to honour India's request for the surrender of the fugitive offenders despite such decision.' Then, the circular deals with extraditing fugitive offenders into India, and the decision of the Supreme Court in Menons' case, the circular obviously refers to, deals with extraditing fugitive offenders out of India. Be that as it may, the law, authorizing the Chie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tself into a gross illegality, and the invalidity of the warrant, unsupported by any law, becomes self-evident. I hold just that, differing, with respect, from the view taken by Brother Amaresh Roy. And prejudice? What greater prejudice can there be if you deprive More of personal liberty "except according to procedure established by law", in violation of his fundamental right under article 21 of the Constitution, and bring him here from Hone Kong under arrest, by violating another fundamental right of his : the right to travel abroad and to be at Hong Kong, as is a recent pronouncement of the Supreme Court, not yet come into the reports? With respect. I there-fore see the gravest of prejudice to More, though Brother Amaresh Roy sees none. 25. There is still another consideration, as Mr. Dutt points out, why the learned magistrate could and should not have followed the circular. The procedure, the circular introduces, will receive effect, "as long as the new Indian Extradition law is not enacted." That is in the second paragraph of the circular itself. See paragraph 21 ante. But the new extradition law, hinted in the circular, the Extradition Act, 34 of 1962, d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order, direct that the provisions of this Act other than Chapter in shall apply - X X X X X (b) to such commonwealth country or part thereof to which Chapter III does not apply; as may be specified in the order." Chapter III is being notified earlier than Chapter II. because Chapter II deals with extradition of fugitive criminals to, amongst others, commonwealth countries (Hong Kong being one such) to which Chapter III does not apply. Consisting of ten sections : Sections 12 to 21 : Chapter III provides for return of fugitive criminals to commonwealth countries with extradition arrangements. In the very nature of things, this Chapter cannot reach the case in hand which is a case of extraditing More into India from the commonwealth country of Hong Kong, not a case of extraditing somebody out of India: into a commonwealth country, with which alone this chapter deals. That apart there is no extradition arrangement between Hong Kong and India, and necessarily there has not as yet been application of this chapter by notified order, as is the concession of Mr. Mitra, here and before my learned brothers too. So, Section 12, by its very terms, rules out the application of this Ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... warrant in the manner he has done, as also of the Central Government in sending a requisition to Hong Kong on the foot of that warrant, receives not even a soupcon of support. It must, therefore, be held, as is held by Brother Alak Gupta, that there is no legal basis for the requisition made by the Central Government to Hong Kong for surrender of More or for the warrant the Chief Presidency Magistrate had issued on July 30, 1965,--'-a warrant which cannot but be struck down. This is the opinion I deliver on the third main point on which my learned brothers have not agreed. 29. The unreported decision on June 21, 1963, by a division of this court (Debabrata Mookerjee and Das Gupta JJ.) In Panchanan Pal v. State of West Bengal. Criminal Revn. No. 179 of 1963, referred to at the Bar, remains to be noticed. It lays down no law on the point 1 am on now. All it does is to leave it to the magistrate to decide if the Extradition Act 34 of 1962 could be invoked for issuing a warrant for apprehension of Joydeb Pal, son of the petitioner Panchanan Pal, then in the United Kingdom. I, therefore, leave it at that. 30. The fourth and last main point of disagreement between my learned broth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I have made of the Act shows that More is incapable of being touched thereunder. (ii) What Mr. Mitra quotes from Wheaton's International Law, volume I, 6th edn., cannot carry him far. Suffice it to note the following passage at page 213 : "The constitutional doctrine in England is that the Crown may make treaties with foreign States for the extradition of criminals, but those treaties can only be carried into effect by Act of Parliament, for the executive has no power, without statutory authority, to seize an alien here and deliver him to a foreign power" a passage which is completely destructive of the contention that the executive can act de hors the statute. Without statutory authority, the executive here also cannot request another country to seize a citizen and to send him to India. (iii) Barren too is the reference by Mr. Mitra to article 73 of the Constitution in support of such contention. A clear and solemn law now exists. That law is the Extradition Act 34 of 1962 Sure enough, article 73 does not enable the executive to act against the provisions of such law. Extradition is entry No. 18 in the Union List. So, under article 73, Sub-article (1), Clause ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 1963. about Switzerland, Sweden and U.S.S.R. under Section 3, Sub-section (1), of the Act. See Gazette of India referred to in paragraph 25 ante. 32. My opinion, therefore, is -- and so I record with due deference -- that Brother Alak Gupta's view must prevail over Brother Amaresh Roy's. 33. How Magistrate D. Cons of the Central Magistracy, Hong Kong, has proceeded, treating our mother-land ; the Sovereign Democratic Republic of India, as a British possession, has been noticed : paragraph 7 ante. My learned brothers are agreed, as indeed they have to be that the Hong Kong Magistrate is not amenable to the jurisdiction of this court. What they are not agreed on is the effect of such order of the Magistrate. Whereas Brother Amaresh Roy holds that the view of the Magistrate has taken of the municipal law of his country, namely, the Fugitive Offenders Act, 1881, cannot sully either the sovereignty of India or her honour. Brother Alak Gupta feels strongly about it and observes: "I do not know what led the authorities here to think that Hong Kong would make an exception on the case of the petitioner and not apply the Fugitive Offenders Act which is part of Hons Kong&# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dia) and that the Extradition Act 34 of 1962, came into force on January 5. 1963, repealed it too, the least that can be said is that it discloses a sorry state of affairs, which we have little to be proud of but much to be ashamed of, I share, if I may, with respect, Brother Alak Gupta's indignation about this sort of trifling with our Constitution by those who ought to know better. 34. In sum, my opinion, agreeing with Brother Alak Gupta's, is that this is preeminently a fit case where the rule should be made absolute. Under Section 429 of the Procedure Code, read with Section 439, Sub-section (1), thereof, the case has been laid before me, and the judgment shall follow the opinion I have just delivered. That seen to me to be the plain meaning of Section 429, though, I am aware, there is a conflict of judicial opinion even about it. Indeed, there are authorities both ways. But I cannot make a reference to the Full Bench, as Buckland J. could not in Ishan Chandra Samanta v. Hridoy Krishna Bose. AIR1925Cal1040 : "Under sec, 429, Cr. P. C., the third Judge before whom the case is laid is required to deliver his, opinion and the judgment or order shall follow such opi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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