HARI SANKAR PROSAD Vs. DISTRICT MAGISTRATE DARJEELING
LAWS(CAL)-1970-8-4
HIGH COURT OF CALCUTTA
Decided on August 07,1970

HARI SANKAR PROSAD Appellant
VERSUS
DISTRICT MAGISTRATE DARJEELING Respondents

JUDGEMENT

- (1.) ON an allegation that the petitioner had committed the offence of murder within the territory of Sikkim, the Government of Sikkim made a requisition to the Government of India for his surrender to the Government of Sikkim for his trial there The Government of India after receipt of this requisition made an order under Section 5 of the Extradition Act of 1962, directing the District Magistrate Darjeeling to enquire into the case. The District Magistrate, Darjeeling has made an enquiry under Section 7 of the Act and has sent a report to the Government of India under Section 7 (4) of the Act holding that a prima facie case has been made out in support of the requisition of the Sikkim Government. The petitioner has thereafter obtained this Rule.
(2.) MR. Roy, who appears for the Government of India and Mr. Burman who appears for the State of West Bengal have both taken a preliminary objection that the order made by the District Magistrate is not revisable under Section 439 of the Code of Criminal Procedure. Under Section 5 of the Extradition Act. the Central Government may direct "any Magistrate" who would have had jurisdiction to enquire into the offence if it had been an offence committed within the local limits of its jurisdiction, to enquire the case. The word "magistrate" has been defined in the Act as a Magistrate of First Class or a Presidency Magistrate. When the Extradition Act defines "magistrate" as a Magistrate of the First Class or a Presidency Magistrate, the obvious reference is to Section 6 of the Code of Criminal Procedure and a reference to Section 6 will show that a Magistrate of a First Class or a Presidency Magistrate is a criminal court under the Code of Criminal Procedure. Here, the Central Government directed the District Magistrate, Darjeeling to make an enquiry. True, no one other than the District Magistrate can make the enquiry. But the District Magistrate as a Magistrate of First Class is a criminal court within the meaning of Section 6 of the Code of Criminal Procedure. The enquiry might have been directed to any other Magistrate within the meaning of the Extradition Act and since the definition of 'any Magistrate' has reference to the Code of Criminal Procedure obviously the Magistrate making the enquiry becomes a criminal court. Furthermore, the Magistrate who is to make the enquiry has to determine if a prima jade case has been made out in support of the requisition and if he is of opinion that a prima facie case has not been made out, he has the power to discharge the fugitive criminal. Clearly therefore, the Magistrate has to make this determination judicially. This can never be an executive act even though it can be said, as has been held in some cases that the order of the Magistrate to execute a warrant against a fugitive criminal may be an executive act but the determination by him on evidence as to whether there is a prima facie case in support of the requisition is a judicial determination by a criminal court. This question came up for consideration before different High Courts under the relevant provisions of the Extradition Act of 1903. When an extradition proceeding was pending against Rudolf Stallman, he moved this court for quashing the said proceedings but this court held in (1) Rudolf Stallman v. The Emperor (15 CWN 737), that the Magistrate holding an enquiry under the Extradition Act, 1903 was not subject to the appellate jurisdiction of the High Court and so the High Court could not interfere under Section 15 of the Charter Act. When the extradition proceeding ended with an order for his surrender, Rudolf Stallman again came up before this court and this court held that it had powers under section 491 of the Code of Criminal Procedure and directed his release. The question whether Section 439 of the Code was attracted or not does not appear to have been specifically raised or considered in those cases. But in (2) Guli shahu v. Emperor (18 CWN 869) this court discharged the fugitive criminal from custody under Section 439 of the Code and said "it is true that Section 15 of the Act ousts the jurisdiction of this court to enquire into the propriety of a warrant issued under Chapter 3 but where the order of the Magistrate is sought to be justified under an authority supposed to be derived from the law but is in fact without jurisdiction, not being sanctioned by it, we cannot but assume that the Magistrate has acted in his general jurisdiction, and as such his order is revisable by this Court and liable to be set aside at the instance of the party whose liberty is affected by it". True, in (3) Guli Shahu v. The Emperor (19 CWN 221) this court held that the Magistrate was, in executing a warrant of arrest, performing an executive act and so section 439 of the Code of Criminal Procedure was not attracted. It will thus appear that the effect of these two decisions is that though the High Court had no power to enquire into the propriety of the warrant, it could interfere with an order made by the Magistrate in the extradition proceeding for surrender of the fugitive criminal. The Bombay High Court in (4) Bai Aisha (AIR 1920 Bom. 81) considered the previous decisions of the Calcutta High Court and. found that even the execution of a warrant under Section 7 of the Extradition Act, 1903, was not an executive act because the Magistrate has judicially to consider the matter and decide whether the warrant can be executed according to law and so the order of the Magistrate is subject to the revisional powers of the High Court. Here, the Bombay High Court followed its previous decision in (5) The Emperor v. Hasim Ali (1905 7 Bombay LR 463 ). The Allahabad High Court in (6) H. K. Lodhi v. Shyam Lal (AIR 1960 Allahabad 100) on a consideration of the Calcutta and Bombay decisions, came to the conclusion that orders of a Magistrate in an extradition proceeding were judicial orders and as such were open to revision. This decision was arrived at disagreeing with the previous decision of the same High Court in (7) Sundal Singh v. District Magistrate, Dehra Dun (1934 CLJ 1296 ). The Madras High Court has in (8) Re : Sankaranarayana Rengan Reddiar 1962 CLJ 697 on a consideration of the previous decisions of the different High Courts held that the Magistrate enquiring under the Extradition Act is a criminal court and his orders are revisable under Section 439 of the Code of Criminal Procedure. With respects I agree with this decision and for the reasons given therein. This conclusion gets support from the observations of the Supreme Court in (9) State of West Bengal v. Jugal Kishore More and another 1969 SCC 441, where it said "the law relating to extradition between independent states is based on treaties. But the law has operation national as well as international. It governs international relationship between sovereign states which is secured by treaty obligation. But whether an offender should be handed over pursuant to requisition is determined by the domestic law of the State on which the requisition is made. Though extradition is granted in implementation of the international commitments of the State, the procedure to be followed by the 'courts' in deciding whether extradition should be granted and on what terms is determined by the municipal law". Then again, "international commitment or treaty will be effective only in the 'court of a country' in which the offender should be surrendered. "
(3.) OBVIOUSLY therefore, the Supreme Courts considered the Magistrate's making this enquiry under Section 7 of the Extradition Act, 1962 as 'courts' of this country. I am, therefore, of opinion that Section 439 of the Code is attracted to the instant case. But even if I assume that Section 439 of the Code of Criminal Procedure is not attracted, there is no doubt that Article 227 of the Constitution is attracted. The petitioner's application is also under Article 227 of the Constitution. We have seen how the Magistrate making the enquiry under the Extradition Act functions judicially and acts judicially. There is no doubt, therefore, that such a Magistrate is a 'tribunal' within the meaning of Article 227 of the Constitution and so the order made by the Magistrate under Section 7 (4) of the Extradition Act is revisable under Article 227 of the Constitution. This has not been disputed either by Mr. Burman or by Mr. Roy but they have argued that the instant case does not come under Article 227 of the Constitution as there is no want of jurisdiction of the District Magistrate to make the instant order.;


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