GULLI SAHU Vs. EMPEROR

JUDGEMENT

(1.) This is a Reference by the Sessions Judge of Darbhanga, under Section 438 of the Criminal Procedure Code, recommending for revision an order passed by the Subdivisional Magistrate of Madhubani directing the surrender of two alleged fugitive offenders, namely, Gulli Sahu and Gobind Sahu, to the Nepal authorities.

(2.) In Bhadra 1966 (1909) Gulli Sahu and Gobind Sahu with four other persons are said to have assaulted one Peary Goar under the orders of a zemindar, one Jia Lall, in village Malinia within the territory of Nepal. Seven days after the assault Peary Goar is alleged to have died. His widow, Musammat Bhagwatia, laid a complaint before the Nepal authorities on 26th Jeth 1967. Two out of the four other persons were tried in Nepal and convicted. One of the two was sentenced to be hanged and the other sentenced to transportation for life. On the 29th January 1912, the Sub-Inspector of Phulpar police-station, within the subdivision of Madhubani, sent an enquiry slip, through the Sub-divisional Officer, to the Lieutenant of Hanumannagar, in Nepal, enquiring if one Gulli Sahu was wanted by the authorities of Nepal in the case of the murder of a goala. The Lieutenant, whose official position corresponds to that of a Subdivisional Officer in British India, replied on 22nd February 1912 that Gulli Sahu was accused in that case and asked for his arrest, promising to send proof of criminality and nationality. On the 9th March 1912, the Subdivisional Magistrate of Madhubani issued a warrant of arrest against Gulli Sahu who, on surrendering before the Magistrate on 18th November 1912, was released on bail by that Magistrate. On the 12th January 1913, the Lieutenant of Hanumannagar sent the evidence of criminality and nationality to the Subdivisional Magistrate and requested that Gobind Sahu should also be arrested. On 3rd March 1913, Gobind Sahu was arrested and released on bail. After examining witnesses for the prosecution and the defence, the Subdivisional Magistrate by his judgment, dated the 20th April 1913, directed the surrender of the accused, Gulli Sahu and Gobind Sahu, to the Nepal authorities. The Magistrate concludes his judgment thus: "The accused, I hold, have committed an offence and are fugitives from justice, and should, therefore, be surrendered to meet the charge."

(3.) The learned Judge in making this Reference to us points out (i) that there is a conflict of evidence as to the nationality of the accused; (ii) that while there is no direct proof that Peary Goar died in consequence of the assault there is a good deal of evidence that he died of natural causes, the evidence of the widow being to that effect; (iii) that there is neither proof nor finding that an extradition offence has been committed; and (iv) that the evidence, if believed, at best makes out a case of grievous it not of simple hurt only. The learned Judge further points out that, although under the Indian Extradition Act any form of hurt is an extradition offence, this case, by virtue of Section 18 of the Act, is governed by the treaties between the British Government and the Government of Nepal, and does not disclose any offence for which an extradition order can be passed.