Rajagopalan, J. -
(1.) UNDER Section 432 Criminal P. C. as amended by the Codes of Civil and Criminal Procedure Amendment Act (Act 24 of 1051), the Chief Presidency Magistrate, Madras, referred two questions of law to this Court :
(i) Whether the Fugitive Offenders Act, 1881, applies to India after 26 -1 -1950, when India became a Sovereign Democratic Republic; and
(ii) 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 events that led up to this reference were set out in full in the order of the learned Chief Presidency Magistrate, which was appended to his reference. Mr. C.G. Menon and his wife, Mrs. Villasini Menon, are Indian nationals. Mr. Menon is a Barrister -at -law. He was practising as an 'advocate and solicitor in the colony of Singapore. Mrs. Menon, who was enrolled as an advocate of the Madras High Court lived with her husband at Singapore, and until recently she wag a member of the Legislative Council of Singapore. The Colonial Secretary of Singapore requested the assistance of the Government of India for the arrest and return to Singapore of Mr. and Mrs. Menon under warrants issued by the Third Police Magistrate of Singapore. On 27 -8 -1952, the Chief Presidency Magistrate, Madras, issued provisional warrants under Section 16, Fugitive Offenders Act, 1881, for the arrest of Mr. and Mrs. Menon. Subsequently, on 12 -9 -1952, two warrants issued by the Third Police Magistrate of Singapore were produced before the Chief Presidency Magistrate by Mr. E.J. Linsell, Assistant Superintendent of Police, Singapore. On 16 -10 -1952 Mr. Linsell produced before the Chief Presidency Magistrate three more warrants for the arrest of Mr. Menon and thirteen more for the arrest of Mrs. Menon, all of them issued by the Third Police Magistrate, Singapore. The offences alleged to have been committed by Mr. and Mrs. Menon were criminal breach of trust in respect of various sums of money, abetment thereof and cheating.
(2.) MEANWHILE , on 4 -9 -1952, Mr. and Mrs. Menon presented a petition to the Chief Presidency Magistrate, contending that the charges against them had not been preferred in good faith, and that they were victims of political animosity. They pleaded that under the conditions that prevailed then in Singapore and the political background of the charges, their return to Singapore was likely to result in a denial of justice. Mr. Linsell gave evidence before the Chief Presidency Magistrate on 15 -9 -1952 and again on 13 -10 -1952 to prove the identity of Mr. and Mrs. Menon with the per sons for whom warrants of arrest had been issued by the Third Police Magistrate of Singapore, and to prove the authenticity of the warrants. Mr. Linsell was cross -examined by the counsel for Mr. and Mrs. Menon. This was followed up by another petition presented by Mr. and Mrs. Menon to the Chief Presidency Magistrate on 15 -10 -1952. It is not necessary to set out the several allegations of fact in that petition. Mr. and Mrs. Menon contended that the Fugitive Offenders Act, 1881, was not applicable to India after 26 -1 -1950, and that, even if it applied, it was repugnant to the Constitution of India. It was after that, that the Chief Presidency Magistrate referred to this Court the two questions mentioned above. It should be more convenient to refer to Mr. and Mrs. Menon as the petitioners in the rest of this judgment. In para 31 of his order appended to the reference, the Chief Presidency Magistrate observed :
No attempt has been made to place any material by way of deposition of witnesses etc. to establish a 'prima facie' case with respect to the offences with which the Menons have been charged, so that if the rendition of the Menons depended on the establishment of a 'prima facie' case, I will not have the slightest hesitation in discharging them."
(3.) THE question of the liability of the petitioners to be returned to Singapore under the warrants issued by the Magistrate of Singapore has to be determined with reference to the provisions of Part II of the Fugitive Offenders Article 1881. The petitioners were arrested in the first instance under the Provisional warrants issued by the Chief Presidency Magistrate, Madras, under Section 16, Fugitive Offenders Act, 1881. Eighteen warrants issued by the Magistrate of Singapore had to be "backed" by the Chief Presidency Magistrate under Section 13 of the Act. It was Section 14 of the Act that empowered the Chief Presidency Magistrate to order the return of the petitioners to Singapore. Section 14, Fugitive Offenders Act has to be read with Section 19 thereof see - - 'Mahomed Naina Marikayar v. Ahmed Marakair', : AIR 1934 Mad 55 (A). It is not, however, necessary to refer any further to Section 19 to dispose of the questions that have been referred to this Court for answers.;