Suraj Narayan Jha and others vs Emperor

Wort, J.—This application is for an order in the nature of a writ of habeas cropus. The prisoners surrendered to a warrant on the 8th April of this year, the warrant having been issued sometime in December 1934. When the matter came up before this Court on the first occasion, it did not sufficiently appear whether the Magistrate being the Sub-divisional Magistrate of Arraria was acting under S. 7 or S. 10 or which section of the Extradition Act, although at the time the case was argued it appeared that it was under that Act that the proceedings had been taken. We have now had the advantage of the enquiries which the learned Assistant Government Advocate has made of the District Magistrate himself and in answer to those enquiries it appears that the Magistrate purported to act under the powers given to him under S. 10, Extradition Act, of 1903. But the matter must be further elucidated by a further short statement of facts. It would appear that some officer with magisterial powers in Nepal communicated with the Sub-divisional Magistrate of Arraria requesting the arrest of these persons. After the prisoners had surrendered, there was a communication from the political officer in Nepal from which can be gathered the fact that a number of persons were implicated in a dacoity in Nepal some of whom were British Indian subjects and amongst whom were the prisoners. So far as the British Indian subjects were concerned, they would be tried by, the Courts in India. It would further appear that there was some communication from the District Magistrate to the political officer requesting that a certificate under S. 188, Criminal P.C., be issued, but up to the present moment no certificate has been issued.

Now, Mr. Jafar Imam as Assistant Government Advocate has given every assistance in the matter and amongst other arguments has suggested that in any event and apart from the Extradition Act, the Magistrate had powers under the earlier sections of the Code of Criminal Procedure to arrest the prisoners when he got knowledge of an offence whether that offence had been committed in British India or outside British India, and the argument, as I understand it, is that in any event whether the incarceration of the accused under the Extradition Act, is illegal or whether the conditions of that Act, ''have been complied with or have not been complied with, the Magistrate has powers under the Code to arrest and detain the prisoners.. That may be a somewhat attractive argument, but it is quite impossible in the light of the information to which I have referred, supplied by the Magistrate himself. The proceedings were instituted obviously under S. 10 Extradition Act, of 1903. It is impossible to hold therefore that the Magistrate was exercising powers under the Code of Criminal Procedure. Now once it is determined that the Magistrate was acting under S. 10, the detention of the prisoners becomes illegal for the reason that sub-S. 3 of S. 10, provides that a person arrested on a warrant issued under this section shall not be without the sanction of the Local Government be detained more than two months. The two months ''have in fact elapsed, on or about the 8th June, and from the further information provided by the learned Assistant Government Advocate, we find that the Local Government has not been moved to extend the time under sub-S. 3 of S. 10 and naturally in consequence no such extension has been granted. Sub-S. 4 of S. 10, provides that the provision of the Code of Criminal Procedure regarding bail shall apply to cases of persons arrested or detained under S. 10. Speaking for myself, if I find that the proceedings were proceedings u/s 10 and the prisoners are entitled to be discharged by reason of the infringement of the provisions of section 10, it is impossible to hold that under the circumstances bail only should be granted, although in this case by the petition of the prisoners an alternative claim for bail has been made. In my judgment the statement of the Magistrate himself concludes the matter and as no extension has been granted under sub-S. 3, the continued detention of the prisoners has become illegal. The only order under the circumstances which this Court can pass is that the prisoners be discharged from custody.

The writ is made absolute and the prisoners discharged from custody.

Fazl Ali, J.

I agree.