The State of Madras Vs. C. G. Menon
& ANR [1954] INSC 67 (19 May 1954)
MAHAJAN, MEHAR CHAND (CJ) DAS, SUDHI RANJAN
HASAN, GHULAM BHAGWATI, NATWARLAL H.
JAGANNADHADAS, B.
CITATION: 1954 AIR 517 1955 SCR 280
CITATOR INFO :
E 1969 SC1171 (15,20,21,25) RF 1973 SC1461
(587)
ACT:
Constitution of India-India-Sovereign
Democratic Republic -Fugitive Offenders Act, 1881 (44 Victoria Chapter 69), ss.
12 and 14-Whether applies to India after the coming into force of the Constitution-Indian
Extradition Act, (XV of 1903)-Adaptation under art. 372 of the
Constitution-Effect of.
HEADNOTE:
After the achievement of independence and the
coming into force of the new Constitution India became a Sovereign Democratio
Republic and could not be described as a British Possession or grouped by an
Order-in-Council amongst those Possessions within the meaning of S. 12 of the
Fugitive Offenders Act, 1881. It became a foreign country so far as other
British Possessions &re concerned and the extradition of persons taking
asylum in India, having committed offences in British Possessions could only be
dealt with by an arrangement between the Sovereign Democratic Republic of India
and the British Government and given effect to by appropriate Legislation.
The Indian Extradition Act, 1903 (Act XV of
1903) has been adapted under the provisions of article 372 of the Constitution
but this Act has not kept &live any of the provisions of the Fugitive
Offenders Act, 1881, which was an act of the British Parliament and which has
not been adopted and therefore section 12 and section 14 of the Fugitive
Offenders Act, 1881, have no application to India.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 33 of 1953.
Appeal under article 132(1) of the Constitution
of India from the Judgment and Order, dated the 20th February, 1953, of the
High Court of Judicature at Madras in Criminal Revision Case No. 1034 of 1953
(Criminal Reference No. 51 of 1953).
C.. Daphtary, Solicitor-General for India, V.
K. T. C Chari, Advocate-General for Madras (Porus A. Mehta and P. G. Gokhale,
with them) for the appellant.
M. K. Nambiar, (S. Subramanian, with him) for
the respondent.
C.K. Daphtary, Solicitor-General for India
(Porus A. Mehta and P. G. Gokhale with him) for the Intervener (Union of
India).
281 1954. May 19. The Judgment of the Court
was delivered by MEHAR CHAND MAHAJAN C. J.-This is an appeal on a certificate
under article 132(1) of the Constitution against the judgment of the High Court
of Judicature at Madras dated the 20th February, 1953, holding that section 14
of the Fugitive Offenders Act, 1881, is void as it offends against the
provisions of the Constitution being discriminatory in its effect.
The respondents, husband and wife, were
apprehended and produced before the Chief Presidency Magis trate, Egmore,
Madras, pursuant to warrants of arrest issued under the provisions of the
Fugitive Offenders Act, 1881. Mr. Menon is a barrister-at-law, and was
practising as an advocate and solicitor in the Colony of Singapore. Mrs. Menon
is an advocate of the Madras High Court and was until recently a member of the
Legislative Council of the Colony of Singapore. Both of them came to India some
time after July, 1952. On the 22nd August, 1952, the Government of Madras forwarded
to the Chief Presidency Magistrate, Madras, copies of communications that
passed between the Government of India and the Colonial Secretary of Singapore
requesting the assistance of the Government' of India to arrest and return to
the Colony of Singapore the Menons under warrants issued by the Third Police
Magistrate of Singapore. Mr. Menon was charged on several counts of having
committed criminal breach of trust and Mrs. Menon was charged with the abetment
of these offences.
The Menons, when produced before the
Presidency Magistrate questioned the validity of their arrest. They pleaded
their innocence and contended that being citizens of India, -they could not be
surrendered as. the warrants related to matters of a civil nature and had been
given the colour of criminal offences merely for the purpose of harassing them
out of political animosity and with a view to prejudice the Court against them
and were issued in bad faith. It was further urged that the provisions of the
Fugitive Offenders Act under which action was sought to be taker against them
were 282 repu gnant to the Constitution of India and were void and
unenforceable.
The Presidency Magistrate expressed the view
that by retaining the Indian Extradition Act, 1903, and with it Chapter IV, the
President of India may have intended to give effect to the Fugitive Offenders
Act, 1881, but by the omission to adapt or modify it suitably it had become
impossible to give effect to that intention, the provisions of the Act, as they
are, being inconsistent with and repugnant to the sovereign status of the
Indian Republic.
In view, however, of the provisions of
section 432, Criminal Procedure Code, as amended by Act XXIV of 1951, he referred
to the decision of the High Court the following questions of law:(1) Whether
the Fugitive Offenders Act, 1881, applies to India after 26th January, 1950,
when India became a Sovereign Democratic Republic; and (2) Whether, even if it
applied, it or any of its provisions, particularly Part II thereof, is
repugnant to the Constitution of India and is therefore void and or
inoperative.
The High Court held that section 14 of the
Fugitive Offenders Act was inconsistent with the fundamental right of equal
protection of the laws guaranteed by article 14 of the Constitution and was
void to that extent and unenforceable against the petitioner. The second
question referred having thus been answered in favour of the respondents, it
was not thought necessary to return any answer to the first question. As above
stated, a certificate under article 132(1) of the Constitution for leave to
appeal to the Supreme Court against this decision was granted to the State of
Madras. The Union of India was allowed to intervene at their request.
The learned Solicitor-General who argued the
case on behalf of the Intervener as well as on behalf of the State of Madras
conceded that the Fugitive Offenders Act, 1881, was not adapted by any specific
order of the President, and that the Parliament in India had not enacted any
Legislation on its lines. He, however, contended that the omission to adapt the
impugned Act 283 in no way affected the question whether it was in force as the
law in the territory of India after the commencement of the Constitution.
Reliance was placed on article 372 (1) of the Constitution which is in these
terms: Notwithstanding the repeal by this Constitution of the enactments
referred to in article 395 but subject to the other provisions of this Constitution,
all the law in force in the territory of India immediately before the
commencement of this Constitution shall continue in force therein until altered
or repealed or amended by a competent Legislature or other competent
authority." And it was said that the impugned Act was the law in force in
the territory of India immediately before the commencement of the Constitution
and continued in force under the provisions of this article after its
commencement.
It was also said that the adaptations made in
the Indian Extradition Act, 1903, by implication kept alive the Fugitive
Offenders Act, 1881, and its different -provisions.
In order to decide whether Part 11 of the
Fugitive Offenders Act, 188 1, comprising sections 12 and 14 under the
provisions of which the Menons are under arrest, has force after the coming
into force of the Constitution, it is necessary to appreciate the relevant
provisions of the Act.
The Fugitive Offenders Act, 188 1, as enacted
by the British Parliament is sub-divided into four parts and is comprised.
of 41 sections. Part I of the Act concerns
itself with offences mentioned in section 9. Section 5 of this part provides
that a fugitive when apprehended shall be brought before a Magistrate who shall
hear the case in the same manner and have the same jurisdiction and powers, as
near as may be, as if the fugitive was charged with an offence committed within
his jurisdiction, and that if the endorsed warrant for the apprehension of the
fugitive is duly authenticated, and such evidence is produced as according to
the law ordinarily administered by the magistrate raises a strong or probable
presumption that the fugitive committed the offence mentioned in the warrant,
and that the offence is one to which this part of this Act 284 applies, the
magistrate shall commit the fugitive to prison to await his return, and shall
forthwith send a certificate of the committal and such report of the case as he
may think fit, if in the United Kingdom to a Secretary of State, and if in a
British Possession to the Governor of that possession. Section 12 which is the
first section in Part II of the Act is in these terms :"This part of this
Act shall apply only to those groups of British Possessions to which, by reason
of their contiguity or otherwise, it may seem expedient to Her Majesty to apply
the same.
It shall be lawful for Her Majesty from time
to time by Order in Council to direct that this part of this Act shall apply to
the group of British possessions mentioned in the Order, and by the same or any
subsequent Order to except certain offences from the application of this part
of this Act, and to limit the application of this part of this Act by such
conditions, exceptions, and qualifications as may be deemed expedient."
Section 14 which is directly in point so far as the respondents are concerned
provides as follows :
"The magistrate before whom a person so
apprehended is brought, if he is satisfied that the warrant is duly
authenticated as directed by this Act and was issued by a person having lawful
authority to issue the same, and is satisfied on oath that the prisoner is the
person named or otherwise described in the Warrant, may order such prisoner to
be returned to the British Possession in which the warrant was issued, and for
that purpose to be delivered into the custody of the person to whom the warrant
is addressed, or any or more of them, and to be held in custody and conveyed by
sea or otherwise into the British Possession in which the warrant was issued,
there to be dealt with according to law as if he had been there apprehended.
Such order for -return may be made by warrant under the hand of the magistrate
making, it, and may be executed according to the tenor thereof" A
comparison between the provisions of Part I and Part II of the Act makes it
clear that with regard to 285 offences relating to which Part I has application
a fugitive when apprehended could not be committed to prison and surrendered
unless the magistrate was satisfied that on the evidence produced before him
there was a strong or probable case against him, while in regard to a fugitive
governed by Part II of the Act it was not necessary to arrive at such a finding
before surrendering him. There is thus a substantial and material difference in
the procedure of surrendering fugitive offenders prescribed by the two parts of
the Act.
The scheme of the Fugitive Offenders Act is
that it classifies fugitive offenders in different categories and then
prescribes a procedure for dealing with each class.
Regarding persons committing offences in the
United Kingdom and British Dominions and foreign countries in which the Crown
exercises foreign jurisdiction, the procedure prescribed by Part I of the Act
has to be followed before surrendering them and unless a prima facie case is
established against them they cannot be extradited.
Extradition with foreign States is, except in
exceptional cases, governed by treaties or arrangements made inter se.
Extradition of offenders between the United
Kingdom and the Native States in India is governed by the Indian Extradition Act.
Under the provisions of that Act no person apprehended could be surrendered
unless prima facie case was made out against him. Extraditions inter se between
British possessions, however, were dealt with differently by the Act. They were
grouped together according to their contiguity etc. by an Order in Council and
treated as one territory and this grouping was subject to alterations and
modifications by Order in Council and conditions of extradition. could also be
prescribed by such an Order.
An Order in Council dated the 2nd January,
1918, .grouped together the following British Possessions and Protected States
with British India for the purposes of Part II of the Act :-Ceylon, Hongkong,
the Straits Settlements, the Federated Malay States, Johore, Kedah and Perlis,
Kelantan, Trengannu, Brunei, North Borneo and Sarawak. The Order is these
terms:-286 ",Whereas by an order of Her Majesty Queen Victoria in Council
bearing date the 12th day of December, 1885, it was ordered that Part 11 of the
Fugitive Offenders Act, 1881, should apply to the ,group of British Possessions
therein mentioned, that is to say, Her Majesty's East Indian Territories,
Ceylon and the Straits Settlements;
And whereas by the Straits Settlements and
Protected States Fugitive Offenders Order in Council, 1916, as amended by the
Straits Settlements and Protected States Fugitive Offenders Order in Council,
1917, it is ordered that the Fugitive Offenders Act, 1881, shall apply as if
the Protected States named in the schedule to the first mentioned order were
British Possessions ;
And whereas by reason of their contiguity or
the frequent intercommunication between them it seems expedient to His Majesty
and conducive to the better administration of justice therein to apply Part II
of the Fugitive Offenders Act, 1881, to the above named British Possessions and
Protected States and such application has been requested by the Rulers of the
said States ;
Now therefore, His Majesty, by virtue of the
powers in this behalf by the Fugitive Offenders Acts, 1881 and 1915, and
otherwise in His Majesty vested is pleased, by and with the advice of His Privy
Council, to order, and it is hereby ordered, as follows : On and after the
first day of February, 1918, the herein before recited Order in Council of the
12th day of December, 1885, shall be revoked, without prejudice to anything
lawfully done there under or to any proceedings commenced before the said date,
and Part II of the Fugitive Offenders Act, 1881, shall apply to the group of
British Possessions and Protected States hereunder mentioned, that is to say,
British India, Ceylon, Hongkong, Straits Settlements, the Federated Malay
States, Johore, Kedah and Perlis, Kelantan, Trengannu, Brunei, North Borneo and
Sarawak." 287 By another Order in Council dated the 29th July, 1937, Burma
which ceased to be part of British India was also included in the group of
British Possessions and Protected States mentioned in the earlier Order in
Council.
It is plain from the above provisions of the
Act as well as from the Order in Council that British Possessions which were
contiguous to one another and between whom there was frequent
inter-communication were treated for purposes of the Fugitive Offenders Act as
one integrated territory and a summary procedure was adopted for the purpose of
extraditing persons who had committed offences in these integrated territories.
As the laws prevailing in those possessions were substantially the same, the
requirement that no fugitive will be surrendered unless a prima facie case was
made against him was dispensed with. Under the Indian Extradition Act, 1903,
also a similar requirement is insisted upon before a person can be extradited.
The situation completely changed when India
became a Sovereign Democratic Republic. After the achievement of independence
and the coming into force of the new Constitution by no stretch of imagination
could India be described as a British Possession and it could not be grouped by
an Order in Council amongst those Possessions.
Truly speaking, it became a foreign territory
so far as other British Possessions are concerned and the extradition of
persons taking asylum in India, having committed offences in British
Possessions, could only be dealt with by an arrangement between the Sovereign
Democratic Republic of India and the British 'Government and given effect to by
appropriate legislation. The Union Parliament has not so far enacted any law on
the subject and it was not suggested that any arrangement has been arrived at
between these two Governments. The Indian Extradition Act, 1903, has been
adapted but the Fugitive Offenders Act, 1881, which was an Act of the British
Parliament has been left severely alone.
The provisions of that Act could only be made
applicable to 288 India by incorporating them with appropriate changes into an
Act of the Indian Parliament and by enacting an Indian Fugitive Offenders Act.
In the absence of any legislation on those lines, it seems difficult to hold
that section 12 or section 14 of the Fugitive Offenders Act has force in India
by reason of the provisions of article 372 of the Constitution. The whole basis
for the applicability of Part II of the Fugitive Offenders Act has gone; India
is no longer a British Possession and no Order in Council can be made to group
it with other British Possessions. Those of the countries which still form part
of British Possessions and which along with British India were put into a group
may legitimately decline to reciprocate with India in the matter of surrender
of fugitive offenders on the ground that notwithstanding article 372 of our
Constitution India was no longer a British Possession and therefore the
Fuogitive Offenders Act, 1881, did not apply to India and they were not bound
in the absence of a new treaty to surrender their nationals who may have
committed extraditable offences in the territories of India. Indeed some of the
other members of this group have also achieved independence. Under section 12
of the Act it is not possible for His Majesty from time to time by Order in
Council to alter the character of this group or its composition or to take any
action as prescribed by that section. Article 372 of the Constitution cannot
save this law because the grouping is repugnant to the conception of a
sovereign democratic republic. The political background and shape of things
when Part II of the Fugitive Offenders Act, 1881, was enacted and envisaged by
that Act having completely changed, it is not possible without radical
legislative changes to adapt that Act to the changed conditions. That being so,
in our opinion, the tentative view expressed by the Presidency Magistrate was
right and though the High Court did not return the answer to the first question
referred to it, in our judgment, the case can be shortly disposed of on that
ground.
The contention of the learned
Solicitor-General that by reason of the adaptations made in the Indian and
references wade therein to Extradition Act, 1903, the Fugitive Offenders Act,
it should be held that the whole of the Fugitive Offenders Act including PartII
had been adapted by the President does not seem to be well founded. The scheme
of the Indian Extradition Act which was founded on the English Act is quite
different. It does not specifically keep alive any of the provisions of Part II
of the Fugitive Offenders Act, 1881, and thefere is no adaptation of the
Fugitive Offenders Act, 1881 within the four corners of the Indian Extradition
Act, 1903. In these circumstances it is not possible to work out the sections
of the Fugitive Offenders Act and apply them to the situation that has arisen
after the coming into force of the Constitution of India. Moreover clause 28 of
the Adaptation of Laws Order, 1950, can have no application to such a case. We
do not think that it is necessary in the present case to enter into a
discussion of the question whether British Possessions with which India was
grouped under Part 11 of the Fugitive Offenders Act, 1881, should now be
treated as foreign States qua India and that offenders apprehended can be
surrendered under the Indian Extradition Act or any other law, provided a prima
facie case is made against them as the proceedings taken against the
respondents were specifically taken Under section 14 of the Fugitive Offenders
Act, 1881, and it is not the practice of this Court to decide questions which
are not properly raised before it or which do not arise directly for decision.
For the reasons given above we uphold the
decision of the High Court, though on a ground different from that on which
that Court decided, in favour of the respondents. The appeal therefore fails
and is dismissed.
Appeal dismiesed.
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