Hadibandhu Padhan and Others vs Emperor

Shearer, J.—The petitioners have been arrested under warrants issued, in the case of four of them, by the Political Agent, Eastern States Agency, and in the case of the fifth by the Assistant Political Agent, Eastern States Agency. The warrants against the petitioners Hadibandhu Padhan, Pturna Chandra Padhan and Khetrabasi Behara alias Batu Padhan were issued on 19th April 1943, and required them to fee arrested and sent to the Court of the Special Judge at Talcher to answer a charge u/s 397, Penal Code. The warrant against Ghasinath Behara was issued two days later, and required him to be produced in the same Court to answer the same charge. The warrant against the remaining petitioner, N.K. Murty, was issued on 18th October 1944, and required him to be produced in the Court of the Sub-Divisional Magistrate of Dhenkanal to answer a charge u/s 395, Penal Code. The warrants were in each case addressed to the District Magistrate of Cuttack, and when the petitioners were arrested and brought before the learned District Magistrate they made certain statements.

In consequence of these statements the learned District Magistrate, quite properly, made a report to the Government of Orissa u/s 8A, Extradition Act. In due course the Government of Orissa considered this report and finally directed the learned District Magistrate to send the petitioners to Talcher and Dhenkanal respectively. The learned District Magistrate then called on the petitioners, who had in the meantime been enlarged on bail, to surrender. Instead, however, of surrendering, the petitioners made these applications which were admitted by a Division Bench consisting of Sinha and Das, JJ. I am inclined myself to think that the applications, when made, were clearly premature and that the Bench ought to have directed the petitioners to surrender to their bail and then to have had the applications moved. This point is not, kowever, one of any great importance as there is authority for the view that if this Court cannot, strictly speaking, act u/s 491, Criminal P.C., as the petitioners are not in custody it can act u/s 439 or Section 561-A: In re Bai Aisha AIR 1929 Bom. 81.

Each of the warrants has been duly sealed and it is not denied that they were signed respectively by the Political Agent and the Assistant Political Agent to the Eastern States Agency. It is, however, contended that the warrant in pursuance of which the petitioner N.K. Murty was arrested was ex facie an invalid warrant as it is signed not by the Political Agent but by the Assistant Political Agent. The expression ''Political Agent'' in Section 7, Extradition Act, must, however, be construed in the light of Clause (40) of Section 3, General Clauses Act. That Clause states that

Political Agent shall include...any officer appointed to exercise all or any of the powers of a Political Agent at any place not forming part of British India under the law for the time being in force relating to foreign jurisdiction.

The Assistant Political Agent is, quite clearly, an officer who answers that description, I may say that in order to remove any doubt which might exist on the point we asked the learned Advocate-General to ascertain whether, and the learned Advocate-General has ascertained that, the Assistant Political Agent has been specifically authorised to sign extradition warrants for the Dhenkanal states. The warrants under which the remaining petitioners were arrested are challenged on a different ground, namely, that they were addressed to the District Magistrate of Cuttack, whereas they ought to have been addressed to the Deputy Commissioner of Angul. In enacting Section 7, Extradition Act, the Legislature would seem to have had in mind the provisions contained in Sub-section (1) of Section 10, Criminal P.C. The Angul Subdivision was, however, constituted into a district by the Angul Laws Regulation, 1936, and Clause (c) of Section 2 of this Regulation states that

''Deputy Commissioner'' means the officer appointed by the Local Government to hold chief executive charge of the district by whatever other title he may be designated.

Now, immediately after this Regulation received the assent of the Governor-General, the Government of Orissa issued a notification appointing "the Collector of Cuttack to be the ex officio Deputy Commissioner of Angul." I am somewhat at a loss to understand why this was done or why this particular phraseology was adopted. It is, however, plain that the person who from time to time holds the office of Collector also holds the office of Deputy Commissioner of Angul. The officer to whom the warrants were sent and who caused them to be executed was Mr. L.P. Singh, and under Clause (7) of Section 57, Evidence Act, this Court is entitled to take judicial notice of the notification published in the Orissa Gazette on 30th June 1942, under which Mr. Singh was appointed to be District Magistrate as well as Collector of Cuttack. It is thus perfectly clear ihat the warrants were in fact directed to the officer who alone was competent to execute them, and more-over, that in sending them to Cuttack instead of to Angul the Political Agent was correct, as Section 61 of the Angul Laws Regulation authorises the Deputy Commissioner to hold his Court at any place in Angul or in the District of Cuttack. If the designation of the officer to whom the warrants were addressed was not correctly given, this is a purely technical defect and is cured by the provisions contained in Section 537, Criminal P.C.

As I have said, the learned District Magistrate made reports to the Provincial Government u/s 8A, Extradition Act. Mr. H. Mahapatra, for the petitioners, has pointed out that by the Adaptation of Indian Laws Order the words "Central Government" were substituted for the words ''Local Government'' in that section. Mr. Mahapatra went on to suggest that in making report to the Provincial Government the learned District Magistrate had committed an, illegality, and that any proceedings subsequent to the occurrence of of this illegality should be set aside. It appears, however, that on 1st April 1938, the Government of India issued a notification under Sub-section (1) of Section 124, Government of India Act, 1935, by which it entrusted to all Provincial Governments, with their consent, the functions of the Central Government under certain Sections of the Extradition Act, and among them Section 8A. When this notification was brought to his notice the learned advocate suggested that it was ultra vires as the functions thereby entrusted to the Government of Orissa were not executive but judicial functions. There is clearly no substance in this argument.

In In re Arton (1896) 1 Q.B. 108 Lord Russell of Killowen emphasised the distinction between what he called the political aspect and the strictly judicial aspect of extradition. In this country, as in every other country, the Legislature has imposed restrictions on the power of the executive to send persons abroad to answer charges before a foreign tribunal. For instance, the offence with which they are charged must be an extraditable offence and there must be in existence a warrant which is ex facie a valid warrant. If the executive exceeds its powers, the judiciary, and this Court in particular, will restrain it, but when the conditions laid down by the Legislature as a pre-requisite to extradition are fulfilled, and the judiciary has no power to intervene, the executive is, nevertheless, under no legal compulsion to surrender the prisoner. It retains a discretion in the matter, and may, for reasons which appear to it to be valid reasons, cancel any warrant which has been issued. That is made clear by the provisions contained in Sections 5 and 15, Extradition Act.

In In re Arton (1896) 1 Q.B. 108 the prisoner was charged with having committed embezzlement and certain other offences. One of the grounds on which he resisted the demand for his extradition was that it was not sought in good faith and in the interests of justice but that the charges had been preferred against him merely as a pretext in order to enable the French Government to get control over him and take action against him for his political activities. The depositions which had been sent to England apparently made out a prima facie case that he had committed the offences with which he was charged, and in declining to entertain this ground the Lord Chief Justice said:

This question bears on the political aspect of extradition, and it must be determined upon a consideration of matters into which this Court is not competent and has no authority to enter. Such considerations, if they exist at all, must be addressed to the executive of this country, they cannot enter, and ought not to enter, into the judicial consideration of this question, which in this case turns solely upon the construction of the Extradition Act and the treaty.

I refer to the decision in In re Arton (1896) 1 Q.B. 108, as one of the grounds on which the petitioners resist the demand for their extradition is very similar to the ground which was put forward in that case and which the Court declined to entertain. The petitioner, N.K. Murty for instance, was employed as a station master at a station on the Bengal Nagpur Railway in Dhenkanal. In that capacity he was in a position to know what grain was exported from or imported into the State and by whom it was exported or imported. According to him, he declined to communicate his knowledge to certain dignitaries of the State and thereby incurred their resentment. He admits that while he was in Dhenkanal some kind of fracas occurred between himself and some other railway employees and a youth named Muhammad Ayub, and that in this fracas Muhammad Ayub was either deprived of or lost possession of a cycle. N.K. Murty suggests that this incident has in some way or other been misrepresented to the Assistant Political Agent who issued the warrant for his arrest. If the incident had occurred in a foreign State and not, as it did, in an Indian State, and if the learned District Magistrate had had to deal with the matter under Chap. II, and not, as he did, under Chap. III, Extradition Act, he would, in the first place, have had the depositions of Muhammad Ayub and the other persons, who are to give evidence against the petitioner N.K. Murty, before him, and, in the second place, N.K. Murty would have been entitled not merely to make a statement but also to call the other railway employees who were concerned in the incident, or other persons who saw it, to say what actually occurred. The learned District Magistrate would, on a consideration of the whole of this body of evidence, have had to determine whether or not a prima facie case had been made out. The Assistant Political Agent presumably had the depositions of Muhammad Ayub and the other persons who are to give evidence at the trial before him, and possibly these depositions may have been enough to make out a prima facie case against the petitioner.

If, however, the petitioner had been in a position to appear before the Assistant Political Agent and to call evidence on his behalf, the Assistant Political Agent might have arrived at a very different conclusion. This aspect of the matter will, I have no doubt, be considered by the Provincial Government if an application is made to it by N.K. Murty, or indeed, the other petitioners, to cancel the warrants u/s IS, Extradition Act. It appears that an application u/s 491, Criminal P.C., was made to the Revenue Commissioner sitting as the High Court for Angul and that one of the grounds on which it was dismissed was that the Revenue Commissioner was assured that the tribunals by which the petitioners would ultimately be tried were not likely to be biassed against them, This, I venture to suggest, is a matter of quite secondary importance. The real question at issue is whether or not sufficient grounds have been made out for depriving the petitioners of their liberty and sending them out of British India to answer a charge before the State tribunals.

If they are innocent, they will no doubt eventually be acquitted, but if they have, as they say, incurred the displeasure of the officials of these Darvars, they may, in the meantime, be subjected to much harassment. In leaving it to the Political Agent to decide, on materials which must frequently be quite inadequate, whether or not a prima facie case has been made out, the Legislature has exposed the subjects of the Crown to the risk of being unnecessarily and unjustifiably deprived of their liberty. The only way in which injustice of this kind can be effectively prevented is by Provincial Governments taking care to inform themselves as best they can of the true facts and, where necessary, exercising the power conferred on them by the Legislature to cancel warrants.

With these observations, I would dismiss the applications.

Pande, J.

I agree.