Haramohan Patnaik vs Emperor

Harries, C.J.—This is an application by one Haramohan Patnaik u/s 491(1)(b), Criminal P.C. On 28th September 1938 the petitioner presented an application to this Court praying that an order passed by a learned Magistrate of the first class at Cuttack directing that the petitioner be sent to Dhenkanal State was illegal and that he should be released from custody forthwith. Notice of this application was served upon the local authorities concerned in Cuttack who have appeared to show cause why this Court should not interfere with the orders which have been passed in this case. The petitioner Haramohan Patnaik is a subject of Dhenkanal State, which is a Native State bordering upon the Province of Orissa. On 23rd September 1938 the petitioner was arrested on the platform of the Dhenkanal Garh Railway Station by the Government Railway Police, who purported to act under a warrant issued by the District Magistrate of Dhenkanal. After arrest the petitioner was brought to Cuttack and produced before the City Magistrate, Mr. Ganesh Chandra Chandra, on 24th September 1938. On inquiry the petitioner admitted that he was a subject of Dhenkanal State, and the learned Magistrate ordered that he should be detained in custody until the Dhenkanal State authorities made arrangements to convey him to Dhenkanal. The warrant of arrest issued by the District Magistrate of Dhenkanal showed that the petitioner was alleged to have committed, within that State, an offence u/s 124-A, I.P.C. It is to be observed that there is no allegation in this case that the petitioner has committed any offence within British India.

On behalf of the petitioner it has been contended that his arrest at the Dhenkanal Garh Railway Station was illegal and that as such vitiates all proceedings taken thereafter. Dhenkanal Garh Railway Station is within the State of Dhenkanal; but it is clear that the Dhenkanal State authorities have no jurisdiction within the limits of railway land in that State. The position with regard to railway lands in the State of Dhenkanal is defined by a Notification No. 754 I.B., dated 28th March 1912, issued by the Governor-General in Council'' in exercise of the powers conferred upon him by the Indian (Foreign Jurisdiction) Order in Council 1902, and of all other powers enabling him in that behalf. The order of 28th March 1912 provides:

(1) Subject to the modification specified in col. 4 of the schedule thereto annexed all laws for the time being in force in the districts or areas specified in col. 3 of the said schedule shall be in force in the lands lying within the states specified in the corresponding entry in column 2 which are occupied by the portions of the railways specified; in the corresponding entry in col. 1 thereof.

(2) The Local Government and all Officers subordinate to it for the time being exercising executive authority within the said districts or areas shall exercise the like authority within the said'', lands, except in connexion with the administration of police which shall be vested in the officer for the time being in charge of Railway Police under the said Local Government.

(3) All Courts having for the time being jurisdiction within the said districts or areas shall have: the like jurisdiction within the said lands.

From a reference to the schedule annexed to this Order, it will be seen that the laws in force in the District of Cuttack shall be in force in the railway lands situate in the State of Dhenkanal and further that the Local Government and officers subordinate to it exercising executive authority in the Cuttack District shall exercise similar authority within the railway lands situate in Dhenkanal State. Further, the police administration within the railway lands situate in Dhenkanal State is vested in the Officer for the time being in charge of the Railway Police. The effect of this order is; to place the railway lands in Dhenkanal State within the jurisdiction of the local, authorities at Cuttack and accordingly it is; argued that the District Magistrate of Dhenkanal has no jurisdiction whatsoever over the land upon which the Dhenkanal Garh Railway Station is situate. It is contended therefore that any warrant issued by the District Magistrate of Dhenkanal could not be directed either to the district authorities exercising jurisdiction over these railway lands or to the Railway Police who were responsible for maintenance of law and order within these railway lands. The warrant for the arrest of the petitioner was direct to the Officer-in-Charge of the Railway Police at Dhenkanal Garh Railway Station, and it directed him to arrest the; petitioner who was alleged to have committed within the State an offence under-Section 124.A, I.P.C.

In my view it is clear that a Magistrate of a Native State cannot issue a warrant directing the Police or Officials in British India to arrest a person accused of committing a crime within a Native State. This has been clearly laid down in a recent decision, Tahilram Kanchand v. Emperor A.I.R (1938) Sind 46. In that case a Magistrate of Nasirbad, which is outside British India, issued a warrant u/s 83, Criminal P.C., for the arrest of a person residing in British India. It was held that such a warrant could not be executed by a Magistrate in British India and that proceedings taken in pursuance of such warrant were illegal and could be quashed by the Court u/s 491, Criminal P.C. Section 83, Criminal P.C., lays down the procedure to be followed when a warrant is to, be executed outside the local limits of the jurisdiction of the Court issuing the same; but this Section, in my view, can have no application to a case such as the present Section 83, Criminal P.C., contemplates cases where a Magistrate in British India issues a warrant for the arrest of a person in some place in British India outside his jurisdiction. It is said that the Criminal Procedure Code has been adopted by the Dhenkanal State authorities; but even so, that would not give the Dhenkanal State authorities a right to issue a warrant and obtain the arrest of a person in the manner directed by Section 83, Criminal P.C.

If the Dhenkanal State authorities have adopted the Criminal Procedure Code, it cannot be said that the same law is applicable to both the State and British India. The effect of the adoption of the Criminal Procedure Code by the Dhenkanal State authorities is to make the provisions of that Code part of the law of Dhenkanal State. It is still a state wholly outside British India and therefore the provisions of Section 83, Criminal P.C., cannot apply to the State in its relation with British India. In my judgment therefore it is clear that the arrest of the petitioner cannot be justified under the provisions of Section 83, Criminal Procedure Code.

It was further argued on behalf of the petitioner that assuming Section 83, Criminal P.C., applied, the production of the petitioner at Cuttack and the subsequent order for detention passed by the Magistrate were wholly illegal. Cuttack is more than thirty miles from the Dhenkanal Garh Railway Station and accordingly it was contended that Section 85, Criminal P.C., applied. It was contended on behalf of the petitioner that if the arrest was legal, then by reason of the provisions of Section 85, Criminal P.C., the petitioner should have been produced before the District Magistrate of Dhenkanal State. In my view, it is unnecessary to consider this aspect of the case, because the arrest cannot be justified under the terms of Section 83, Criminal P.C.

By Notification No. 34 I.B., dated 14th January 1937, the Governor-General-in-Council in exercise of the powers conferred by the Indian (Foreign Jurisdiction) Order in Council, 1902, and of all other powers enabling him in that behalf, directed that

all criminal processes issued in a manner similar to that prescribed by the Criminal Procedure Code, 1898, by a Magistrate having jurisdiction in any State in India shall be acted upon and executed in railway lands lying within such State by all Magistrates and police officers having jurisdiction in such railway lands under the same conditions and in the same manner as if such processes had been issued by a Magistrate having jurisdiction in such railway lands :

Provided further that nothing herein before contained shall require a Magistrate or police officer having jurisdiction in such railway lands to execute any process so issued against any person who is not a subject of the State by the Court of which the process has been issued or be construed as authorizing him to execute any such process against any subject or servant of His Majesty.

The Advocate-General of Orissa who appeared on behalf of the local authorities has contended that the arrest of the petitioner was perfectly legal by reason of this notification. He did not contend that the arrest and subsequent proceedings could be justified under Sections 83 and 85, Criminal P.C. The. Advocate-General argued that the effect of this notification of 14th January 1937, is that all Magistrates and police officers having jurisdiction in the railway lands in the Dhenkanal State must execute a warrant issued by a Magistrate of that State under the same conditions and in the same manner as if such warrant had been issued by a Magistrate having jurisdiction over such railway lands. In other words, he contended that the railway police at Dhenkanal Garh Railway Station were bound to execute the warrant issued by the District Magistrate of Dhenkanal in precisely the same manner as if it has been issued by the District Magistrate of Cuttack who, by the notification of 28th March 1912, has sole jurisdiction over railway lands in the State. In my judgment, the terms of, this notification of 14th January 1937, are clear and in the present case the police at Dhenkanal Garh Railway Station had no alternative but to act upon the warrant issued by the District Magistrate of Dhenkanal and to arrest the petitioner. After arresting the petitioner, the police produced him on the following day before a Magistrate of the First Class in Cuttack and the latter, after ascertaining that the petitioner was a subject of Dhenkanal State, remanded him in custody in order to enable the Dhenkanal authorities to make arrangements for conveying him to the State. It has been strongly contended on behalf of the petitioner that even if the arrest was justified under the notification of 14th January 1937, the subsequent proceedings were wholly illegal. It was contended that the police had no right whatsoever to take the petitioner to Cuttack and to produce him before a Magistrate. It was urged that the police should have handed the petitioner over then and there to the Dhenkanal State authorities and as they did not do so, he could no longer be detained at Cuttack.

The last Proviso to the notification of 14th January 1937, makes it clear that a Magistrate or police officer having jurisdiction over railway lands can only execute a warrant issued by a Magistrate in a native state against a person who is a subject of that State. Such Magistrates or police officers are not to execute such warrants against persons not subjects of the State or to execute any warrant against any subject or servant of His Majesty. Before a person arrested by the railway police upon a warrant issued by a Magistrate of a native state is handed over to the State authorities, it must first be ascertained whether the person arrested is or is not a subject of that State. If he is, he must be handed over to the State authorities; but if he is not a subject of the native state, then he cannot be handed over. The notification contemplates that there should be some inquiry as to whether the person arrested is or is not a subject of the State which has issued the warrant. Clearly, such an inquiry can not be left to the railway police and in my view the only course which the railway police can follow in executing a warrant issued by a Magistrate in a native State, is to produce the arrested man before a Magistrate having jurisdiction over railway lands. Such Magistrate can then make the necessary inquiry and order detention of the arrested man until arrangements are made for taking him to the native State. Any other construction of this notification should leave the arrested man entirely at the mercy of police officer who might frequently be of junior rank. It is to be observed that the notification of 14th January 1937, directs all Magistrates and police officers to execute the warrant issued by a Magistrate in a native State, and in my view this contemplates that after a person is arrested on railway lands by the police he must be produced before a Magistrate having jurisdiction over such railway lands who will then decide whether such arrested person should be detained and handed over to the native State authorities.

It was contended on behalf of the petitioner that this notification of 14th January 1937 was ultra vires the Indian (Foreign Jurisdiction) Order in Council, 1902. The limits of the Indian (Foreign Jurisdiction) Order in Council 1902 are defined by Clauses 2 of that order. Those limits are

the territories of India outside British India, and any other territories which may be declared by His Majesty in Council to be territories in which jurisdiction is exercised by or on behalf of His Majesty through the Governor-General of India in Council, or some authority subordinate to him, including the territorial waters of any such territories.

Clause 3 of the Order enables the Governor-General of India in Council on His Majesty''s behalf to exercise any power or jurisdiction which His Majesty or the Governor-General of India in Council for the time being has within the limits of the Order and to delegate any such power or jurisdiction to any servant of the British Indian Government in such manner, and to such extent, as the Governor-General in Council from time to time thinks fit. Clause 4 of the order provides that

the Governor-General in Council may make such rules and orders as may seem expedient for carrying the order into effect, and in particular,

(a) for determining the law and procedure to be observed, whether by applying with or without modifications all or any of the provisions of any enactment in force elsewhere, or otherwise;

(b) for determining the persons who are to exercise jurisdiction, either generally or in particular classes of cases, and the powers to be exercised by them;

(c) for determining the Courts, authorities, Judges, and Magistrates, by whom, and for regulating the manner in which any jurisdiction auxiliary or incidental to or consequential on the jurisdiction exercised under this order, is to be exercised in British India;

(d) for regulating the amount, collection, and application of fees.

In my judgment the notification dated 28th March 1912, by which railway lands within a native State are placed under the jurisdiction of certain Magistrates and officers in British India, is intra vires the Order of 1902. The Order of 1902 contemplates such provisions as are contained in the notification of 28th March 1912. Further, there is nothing in the notification of 14th January 1937 which can possibly be said to be outside the powers conferred upon the Governor-General in Council by the Indian (Foreign Jurisdiction) Order in Council, 1902. In my judgment, these two notifications cannot possibly be said to be ultra vires, and the arrest and subsequent production of the petitioner before the Magistrate, at Cuttack are amply justified under the terms of these notifications. Further, the detention of the petitioner by order of the learned Magistrate at Cuttack is legal by reason of the combined effect of these two notifications.

It was also contended by the Advocate-General that the arrest and detention of petitioner could be justified under the provisions of Section 54(1), Para. 7 Criminal P.C., This Section permits police officers in certain cases to arrest without an order from a Magistrate and without a warrant. Para. 7 to Section 54(1), Criminal P.C., permits the arrest without a Magistrate''s order or a warrant of a person against whom a reasonable complaint has been made or credible information has been received or a reasonable suspicion exists of his having been concerned in an act committed outside British India which if committed in British India would have been punishable as an offence or for which he is under any law relating to extradition or under the Fugitive Offenders Act 1881 or otherwise liable to be apprehended or detained in custody in British India. The petitioner''s act, it is contended, namely, section (sic), is punishable as an offence in British India and the petitioner could be apprehended and detained in custody under the extradition laws. Therefore, it is said he could be arrested without a warrant. Assuming the warrant issued by the District Magistrate of Dhenkanal to be illegal, that it is urged is immaterial because he could be arrested without any warrant at all. In my view the arrest and detention of the petitioner cannot be justified under these provisions. The only information which the Railway Police had in this case was the warrant issued by the District Magistrate, Dhenkanal State. Such can hardly be said to be a reasonable complaint or to amount to credible information or to create reasonable suspicion. What is a reasonable complaint or suspicion depends on the circumstances of each case but it must be founded on some definite fact or some tangible proof which is sufficient to establish in the mind of a reasonable police officer the reasonableness or credibility of the charge, information or suspicion: see Subodh Chandra Roy Choudhuri Vs. King-Emperor, Further, it has been held that to justify an arrest u/s 54(1), Para. 7, Criminal P.C., there must be in existence as a fact, as opposed to any belief which may be entertained by any person, a warrant which has been issued under the Extradition Act: see Subodh Chandra Roy Choudhuri Vs. King-Emperor, and Emperor v. Kalu A.I.R (1933) Lah 159. There was no such warrant in existence in this case.

However, as I have stated, the arrest of the petitioner and the subsequent proceedings were in accordance with the terms of the Notification 34 I.B., dated 14th January 1937 and therefore legal. I would therefore discharge the rule.

Agavwala J.

I agree.