In Re: Sankaranarayana Rengan Reddiar

Sadasivam, J.—This Criminal Revision Petition is against the order of the Additional District Magistrate II, Tirunelveli in M.C. No. 1 of

1961 extraditing the petitioner for offences of criminal misappropriation of property and criminal breach of trust u/s 3(4) of the Extradition Act.

The learned Advocate-General raised a preliminary objection that the Order of the Additional District Magistrate II, Tirunelveli, could not be

revised by this Court u/s 439, Criminal Procedure Code. His contention is that after a Magistrate finds that a prima facie case has been made out,

he should only make a report : to the Government u/s 3(6) of the Act and it is for the Central Government to decide whether the fugitive offender

should be surrendered or not. He relied on the decision in Rudolf Stallmann v. Emperor I.L.R.(1911) Cal. 547 where it was held that the High

Court has no jurisdiction u/s 15 of the Charter Act to revise the proceedings of a Magistrate acting under Sections 3 and 4 of the Extradition Act.

But this decision was distinguished In the matter of Rudolf Stallmann ILR Cal. 164 after the extradition proceedings against Rudolf Stallmann were

concluded. It was pointed out in that decision that

the view may well be maintained that though it is not open to the High Court to interfere with proceedings of the Magistrate during the pendency of

the extradition enquiry, occasion may arise for the exercise of the powers u/s 491 of the Criminal Procedure Code after the enquiry has closed.

Reliance was placed on the decision in Rajangam v. State of Madras (1959) 1 M.L.J. 71 : ILR (1959) Mad. 12 in support of the contention that

extradition proceedings, like proceedings u/s 176, Criminal Procedure Code, could not be subject to the revisional jurisdiction of the High Court.

The definition of judicial proceeding in clause 4 (m) of the Criminal Procedure Code as including any proceeding in the course of which evidence is

or may be legally taken on oath, was attempted to be used during arguments in that decision as showing that proceedings u/s 176, Criminal

Procedure Code are judicial proceedings and are subject to revisional jurisdiction of the High Court. But it was pointed out in that decision that the

definition only means that wherever the expression ""judicial proceeding"" is used, it is a proceeding in the course of which evidence is or may be

legally taken on oath and that the converse is not always the truth. It was also pointed out in that decision that u/s 435 of the Criminal Procedure

Code the High Court can call for and examine the records of any proceeding, only of an inferior criminal Court and that it was not contended in

that case that an enquiry by a Magistrate u/s 176, Criminal Procedure Code is by a Court. In fact in In Re: M. Vijiaraghava Pillai; P. Theagaraya

Chetti and P.M. Appaswami Pillai, relied on by the respondent it was held that the High Court has no jurisdiction to revise an order passed by a

Presidency Magistrate in an enquiry held by virtue of the rules framed by Government under the Madras City Municipal Act, whereby a Magistrate

may decide as to the competency or otherwise of a candidate for Municipal Election. The reason for the decision is that the Magistrate is not a

Court subject to the appellate jurisdiction of the High Court within the meaning of that word in Section 15 of the Charter Act and that he is in the

position of a referee between the President of the Municipal Corporation and the candidate.

Under Extradition Act, it is only a Magistrate, who would have the jurisdiction to enquire into a crime if it had been an offence committed within;

the local limits of his jurisdiction, who could be directed to enquire into an extradition case, Such a Magistrate should enquire and decide whether

a, prima facie case is made out in support of the requisition for extradition of the fugitive criminal. In conducting the extradition proceedings the

Magistrate shall enquire into the case in the same manner and with the same jurisdiction and powers, as nearly as may be, as if the case were one

triable by a Court of Session or High Court. Thus he should follow the procedure laid down in Chapter XVIII, Criminal Procedure Code as

regards enquiry into cases triable by the Court of Session or High Court. In Mabel Ferris v. Emperor I.L.R.(1929) 53 Bom. 149 it was held that

the order passed by the Chief Presidency Magistrate u/s 7 of the Extradition Act was a judicial order and as such was subject to revision by the

High Court u/s 439 of the Criminal Procedure Code. In H.K. Lodhi Vs. L. Shyam Lal, also it was held that the order passed by a Magistrate in

proceedings subsequent to the arrest of the accused u/s 7. of the Extradition Act was a judicial order and as such was open to revision. This

decision was quoted with approval in the Full Bench decision In re Sockalingam (1960) 2 M.L.J. 435 : ILR (1960) Mad. 829 : (1960) M.L.J.

739 . The Additional District Magistrate II, Tirunelveli, in enquiring under the Extradition Act whether the petitioner had committed a prima facie

extraditable offence : is a criminal Court within the meaning of Section 6 of the Criminal Procedure Code and his orders are revisable u/s 439 of

the said Code.

The learned Advocate-General referred to several clauses of Section 3 of the Extradition Act and pointed out that it has prescribed a special

procedure for the enquiry of extradition offences by a Magistrate and that by reason of Section 1(2), Criminal Procedure Code, the provisions of

the Criminal Procedure Code such as revision could hot be invoked to revise orders of the Magistrates passed under the Extradition Act. I do not

find that any special procedure has been prescribed in Section 3 of the Extradition Act so as to exclude the provisions of the Criminal Procedure

Code. I have already referred to the decision In the matter of Rudolf Stallmann I.L.R.(1912) Cal. 164 where it was held that the special procedure

u/s 3(6) of the Extradition Act takes the place of that indicated in the English Act as the procedure to be followed in the extradition proceeding

itself, and that Section 3(6) of the Extradition Act is not a substitute for and does not interfere with proceedings such as those taken under a

different jurisdiction to test a custody alleged to be illegal within the terms of Section 491 of the Criminal Procedure Code. Section 3(3) of the

Extradition Act only makes Chapter XVIII, Criminal Procedure Code, applicable to the enquiries by the Magistrate under that clause. There is a

provision for reference to the High Court on points of law under Clause (7) of Section 3 of the Extradition Act. Such a provision is analogous to

Section 432 of the Criminal Procedure Code which could not be easily invoked in proceedings under the Extradition Act. Thus, I do not find any

special procedure prescribed in Section 3 of the Extradition Act which would have the effect of excluding the applicability of Section 439 of the

Criminal Procedure Code. For the foregoing reasons, I find that this Court has jurisdiction to revise the order of the Additional District Magistrate

II, Tirunelveli, and I am therefore unable to uphold the preliminary objection of the learned Advocate-General.

I shall now proceed to consider the several objections urged by the learned Advocate for the petitioner as regards the legality and validity of the

order of the learned Additional District Magistrate'' II, Tirunelveli. The first objection is that u/s 3(1) of the Extradition Act it is only the Magistrate,

who would have had jurisdiction to enquire into the crime if it had been an offence committed within the local limits of his jurisdiction, who could be

directed to enquire into the case and that an Executive Magistrate, who could not normally enquire or try cases, would have no jurisdiction to hold

the enquiry u/s 3 of the Extradition Act. I am unable to uphold this objection of the learned Advocate for the petitioner. The Code of Criminal

Procedure has defined several classes of Criminal Courts in Section 6 and it makes no distinction between the Executive and the Judicial

Magistrate. It is only under Circulars relating to the powers of Magistrates under the Scheme of Separation that the Magistrates have been

classified as Executive and Judicial Magistrates and their functions have been defined. Powers under Sections 3,4,7, 8-A and 10 of the Extradition

Act have been conferred on Executive Magistrates. But for the Circulars relating to the powers of Magistrates under the Scheme of Separation,

the Executive Magistrates would have had jurisdiction to enquire into the crime if it had been an offence committed within the local limits of his

jurisdiction, as required by Section 3 of the Extradition Act. The fact that such Executive Magistrates are not normally given functions which are

necessarily judicial, as for instance the trial of criminal cases, would not have the effect of making them incompetent to exercise the powers under

Sections 3, 4, 7, 8-A and 10 of the Extradition Act conferred on them. I am therefore unable to accept the contention of the learned Advocate for

the petitioner that the Additional District Magistrate II, Tirunelveli, has no jurisdiction to enquire u/s 3 of the Extradition Act.

The second objection of the learned Advocate for the petitioner is that the Additional District Magistrate II, Tirunelveli, should have followed the

procedure prescribed for trials before High Court and Court of Session in Chapter XXIII of the Criminal Procedure Code. This objection is based

on a wrong reading of Section 3(3) of the Extradition Act, which contemplates only an enquiry into the case in the same manner as if the case were

one triable by the Court of Session or by a High Court. Chapter XXIII, Criminal Procedure Code, relating to trial of Sessions cases can have no

application to an enquiry under Extradition Act. Section 3(3) of the Extradition Act contemplates a Magistrate holding enquiry under that section to

follow the procedure laid down in Chapter XVIII of the Criminal Procedure Code.

The third objection of the learned Advocate for the petitioner is that the learned Additional District Magistrate II, Tirunelveli, erred in relying on

the depositions taken by Colombo Magistrate in the absence of the petitioner as evidence in the case. Section 17 of the Extradition Act provides

that in any proceedings under Chapter III exhibits and depositions (whether received or taken in the presence of the person >against whom they

are used or not) and copies thereof, and official certificates of facts and judicial documents stating facts, may., if duly authenticated, be received as

evidence. The contention of the learned Advocate for the petitioner is that the enquiry in this case was not one conducted under Chapter III of the

Extradition Act and hence Section 17 of the Act cannot be invoked. It is clear from the decision of the Full Bench in In Re: K.R.P.L.

Chockalingam Chettiar, that the rendition of the petitioner to the Ceylon Government would fall under Chapter III of the Extradition Act. Hence

the learned Additional District Magistrate II, Tirunelveli, is justified in relying on the statements recorded before the Colombo Magistrate, in the

absence of the petitioner, as evidence in the case. The fourth objection of the learned Advocate for the petitioner is that there is no evidence as to

the nature of the offence committed by the petitioner according to Ceylon, Law. He relied on the decision In re Shutter (1959) 2 All E.R. 782 in

support of his contention. In that decision it was held that there was no evidence before the Chief Magistrate that the alleged offence came within

Section 9 of the Fugitive Offenders Act, 1881, as it was not shown that the offences were punishable in Kenya by imprisonment with hard labour

for a term of twelve months or more, or by any greater punishment. In that case there was a warrant from Kenya duly authenticated for the

apprehension of the applicant Shutter. But in order to commit Shutter to prison, the Chief Magistrate had to be satisfied under the provisions of

Section 9 of the Fugitive Offenders Act, 1881, that Shutter had committed an offence punishable with imprisonment with hard labour for a term of

twelve months or more, or by any greater punishment, according to the law of Kenya. But in the present case the Magistrate had only to satisfy

himself that the petitioner had committed an extraditable offence of criminal misappropriation or criminal breach of trust as defined in Sections 403

and 406, Indian Penal Code. In fact, the requisition received by the learned Additional District Magistrate showed that the petitioner was alleged

to have committed an offence punishable u/s 391 or 386 of the Ceylon Penal Code corresponding to Section 406 or 403, Indian Final Code.

The last observation of the learned Advocate for the petitioner is that the learned Additional District Magistrate II has erred in finding that a

prima facie case had been made out against the petitioner for the offence of criminal breach of trust. There is no substance in this contention. The

complainant has been examined by the learned Additional District Magistrate II, Tirunelveli and he has clearly given evidence in support of the

complaint made by him against the petitioner. It is not possible for the petitioner to contend that there is no evidence in this case which would justify

the Magistrate to come to the conclusion that a prima facie case had been made out against him.

For the foregoing reasons, I find no ground to interfere with the order of the learned Additional District Magistrate II, Tirunelveli, extraditing the

petitioner.

The Revision Petition is therefore dismissed.