Madan Sahu and Others vs Emperor

Varma, J.—On Dhabaleswar Patha situate on a char of the river Mahanady, within the jurisdiction of the Athgarh State, there is a sweet-meat shop. License for holding this shop is granted every year by the debuttar department of the Athgarh State to the highest bidder. One Kinu Sahu had been the original holder of this sweet-meat shop. The petitioner No. 1 Madan Sahu outbidded Kinu in 1932.33, and obtained the license in supersession of Kinu''s claim. In the next year 1933.34, also Madan outbidded Kinu and the amount of bid went up to Rupees 4,600. Madan Sahu was however turned out for failure to pay the instalments of the bidded amount and the license was granted to Kinu Sahu.

This was in June last. In November 1933, Kinu''s sweetmeat shop was looted by Madan Sahu and five others. This was an offence of rioting within the territory of the Athgarh

Feudatory State. At the instance of the Ruling Chief, the Secretary to the Agent to the Governor General, Eastern States and Political Agent, Sambalpur, issued on 21st December 1933, six extradition warrants against the six petitioners before this Court. The District Magistrate of Cuttack was directed to execute the warrants and produce the petitioners before the Ruling Chief by 15th January 1934. The Political Agent, while issuing the warrants for execution, reported that he was satisfied that a prima facie case had been made out against the petitioners under different sections of the Penal Code. The warrants were bailable.

They were duly executed and the bailors undertook to produce the petitioners before the Ruling Chief of Athgarh on the date fixed, 1. e., 15th January 1934. On 15th January 1934, the petitioners did not appear before the Ruling Chief but they moved on that day a petition before the District Magistrate praying that the case be reported to the Local Government u/s 8.A, Extradition Act, with a recommendation that the proceedings for extradition of the petitioners be stayed. The learned District Magistrate refused the petition as no good ground had been made out for granting the prayer and also because the petition was made much two late and contained allegations which had no substance. The petitioners have now come up to this Court against the order of the learned District Magistrate.

The High Court, on 11th April 1934, issued a rule in this case directing further proceedings to be stayed pending the disposal of the revision application and allowing the petitioners to remain on their present bail. Incidentally I should like to observe that the Government of India authorizes the Agent to the Governor-General in the Eastern States to exercise the powers of a High Court in respect of all offences committed within the territory. On this ground alone I am unable to interfere in this matter. I will however examine the other aspects of the case in view of the arguments placed before me. Section 8.A, Extradition Act, provides:

Notwithstanding anything contained in Section 7 Sub-section (2) or in Section 8, when an accused person arrested in accordance with the provisions of Section 7 is produced before the District Magistrate or Chief Presidency Magistrate, as the case may be and the statement (if any) of such accused person has been recorded, such Magistrate may, if he thinks fit, before proceeding further report the case to the Local Government and, pending receipt of orders on such report may detain such accused person in custody or release him on his executing a bond with sufficient sureties for his attendance when required.

It is therefore discretionary with the Magistrate to report the matter to the Local Government.

If the Magistrate is inclined to hold an inquiry, he may do so and then, if be thinks fit, may report the matter to the Local Government. In the present case the fact that the matter has not been reported to the Local Government does not in any way make the procedure adopted by the District Magistrate illegal. Section 7(2), Extradition Act, prescribes the way in which the warrants in connexion with "an extradition offence" referred to in Section 7(1) of the Act shall he executed. The warrant in this case is in connexion with an offence u/s 395, Penal Code, which is an extradition offence mentioned in the first schedule. Therefore it is Section 7(2) and not Section 8 which is applicable, because Section 8 does not specify distinctly that the procedure laid down therein is for "an extradition offence." Section 8 only emphasises the fact that in either of these circumstances if the Magistrate feels inclined to do so he may report the case to the Local Government.

The Magistrate has, for the reasons stated by him, refused to take any step u/s 8-A; and this Court cannot interfere unless it can be shown that the order of the Magistrate was without jurisdiction. Moreover by Notification No. 161/1, dated 1st April 1933, issued by the Government of India in the Foreign and Political Department, the Secretary to the Agent to the Governor-General, Eastern States at Sambalpur was,

among other officers, authorized to exercise the powers of a Political Agent for the purpose of the Indian Extradition Act (15 of 1903)

for the State of Athgarh. Under Notification No. 156/1, dated 1st April 1933, of the Government of India in the Foreign and Political Department, the Secretaries to the Agent to the Governor-General Eastern States at Ranchi and Sambalpur are to exercise powers of a District Magistrate and a Court of Session and the Agent himself is to exercise the powers of a High Court.

In the present case the Secretary to the Agent himself has issued the extradition warrants against the six petitioners and the warrants have been executed; but the petitioners instead of being present before the Agent on 15th January 1934, (as they ought to have done), have moved the District Magistrate of Cuttack to report their case to the Local Government. The District Magistrate has found that the allegations contained in their petition have no substance and that the petition, apart from being made much too late, did not make out any good case to warrant a report to the Local Government with the recommendation sought. The learned District Magistrate therefore refused the prayer of the petitioners. I do not find in this any defect of jurisdiction.

My attention has been drawn to the following reported cases: Emperor v. Gulli Sahu 1914 Cal 22 and Gulli Sahu v. Emperor 1915 Cal 426, where the points that appealed to their Lordships of the Calcutta High Court were, first that the Magistrate issued the warrant in the case of Gulli Sahu on mere information without any evidence; secondly, that he did not report the issue of the warrant to the Political Agent, there being one in Nepal; thirdly, (this is really a point relevant in this case), he made an inquiry into the case without warrant or warrants issued by the Political Agent in or for the Nepal States; and fourthly, he ordered the surrender of the accused on a procedure not known to the Extradition Act. On these findings their Lordships of the Calcutta High Court came to the conclusion that the Magistrate had acted without jurisdiction.

The most important consideration in the case, to my mind, was the fact that there was no warrant from the Political Agent in Nepal; and this fact becomes clearer by a reference to that case. That case came to the Calcutta High Court after a warrant had been issued by the Political Agent and their Lordships Jenkins, C.J., and Teunon, J., refused to interfere although they noticed the eccentric procedure and pronouncement of the District Magistrate. The next is that of Jaypal Bhagat v. Emperor 1922 Pat 442, in which their Lordships of the Patna High Court interfered because extradition was claimed by the Nepal State for an offence not falling within the terms of the Treaty between the Nepal Government and the British Government.

The two cases referred to above do not, in my opinion, apply to the facts of the present case. The result is that this application must be dismissed. The records may be sent back forthwith.