1. Extradition warrant issued under Section 7, Extradition Act, 1903 for offences of extortion and cheating — Challenge to legality based on an existing extradition treaty. (Para 1 , 2 , 13 , 18 , 19 )
Back
Next 
1950 Supreme(SC) 12
SUPREME COURT OF INDIA
M.H. Kania, CJI., Saiyid Fazal Ali, M. Patanjali Sastri, Mehr Chand Mahajan, B.K. Mukherjea, S.R. Das, JJ.
Dr. Ram Babu Saksena – Appellant
Versus
The State – Respondent
Criminal Appeal No. 2 of 1949
Decided On : 05-05-1950
Advocates appeared
Shri Alladi Krishnaswami Ayyar, Senior Advocate, Supreme Court (Shri Alladi Kuppuswami, Advocate, Supreme Court with him ) instructed by Shri Rajindar Narain, Agent - for Appellant. Shri M. C. Setalvad, Attorney General for India (Shri V. N. Sethi Advocate, Supreme Court, with him) instructed by Shri P. A. Mehta, Agent - for the State.
Shri Alladi Krishnaswami Ayyar, Senior Advocate, Supreme Court (Shri Alladi Kuppuswami, Advocate, Supreme Court with him ) instructed by Shri Rajindar Narain, Agent - for Appellant. Shri M. C. Setalvad, Attorney General for India (Shri V. N. Sethi Advocate, Supreme Court, with him) instructed by Shri P. A. Mehta, Agent - for the State.
Municipal law providing for the extradition of criminals for offences not listed in an extradition treaty does not "derogate" from the treaty, as it enlarges rather than curtails the power to surrender criminals and does not create a prohibited right for the subject to avoid extradition.
Headnote:(A) Extradition Act, 1903 - Sections 7 and 18 - Penal Code - Sections 383 and 420 - Criminal Procedure Code - Sections 491 and 561A - Extradition for offences not listed in a treaty - Whether the application of municipal law to surrender a criminal for an offence not covered by an extradition treaty constitutes a derogation from the provisions of said treaty - The enumeration of specific offences in a treaty does not imply a prohibition against the legislature providing for the surrender of criminals for other offences under municipal law - Such statutory authority enlarges the power to grant extradition and does not detract from or derogate from the treaty's obligations. (Para 8)
(B) Principle of Reciprocity - Unilateral undertaking by a government to grant extradition for an offence for which it cannot claim reciprocal extradition under a treaty does not violate international compacts or the terms of the treaty. (Para 8)
Facts of the case:
A former official of a princely state was arrested under a warrant issued under the Extradition Act for alleged offences of extortion and cheating. The official challenged the legality of the arrest, contending that a treaty between the princely state and a foreign government limited extradition to "heinous offences." Since the charged offences were not listed as heinous in the treaty, it was argued that the arrest under the Act derogated from the treaty, rendering it illegal.
Findings of Court:
The court held that the arrest and surrender under the Act were lawful. The treaty's list of heinous offences is exhaustive only regarding the right to claim extradition under the treaty, but it does not fetter the legislature's power to provide for the surrender of criminals for other offences through domestic law.
Issues: Whether the extradition of a person for an offence that is extraditable under the Extradition Act but not listed as a "heinous offence" under a relevant treaty constitutes a derogation from the treaty within the meaning of Section 18 of the Act.
Ratio Decidendi: The court reasoned that "to derogate" means to detract or take away. Providing for the surrender of criminals for additional offences under municipal law enlarges the power of the requesting party to claim surrender and does not curtail the treaty's provisions. The treaty creates no right for a subject to avoid extradition for offences other than those listed; it only defines the obligations of the high contracting parties. (Para 8)
Result: Appeal fails and is dismissed.
Legal Category Hierarchy
- crime and sentencing
- practice and procedure
- international law
Table of Contents
2. Whether extradition for offences not listed as heinous in a treaty derogates from said treaty under Section 18, Extradition Act, 1903, rendering the warrant illegal. (Para 3 , 4 , 7 , 14 , 16 )
3. Municipal law providing for extradition of additional offences beyond those listed in a treaty does not detract from the treaty's provisions or violate reciprocity principles. (Para 5 , 6 , 20 , 21 , 22 , 23 , 24 , 25 , 26 , 27 )
4. Statutory authority to surrender criminals for additional offences does not derogate from an extradition treaty by enlarging, rather than curtailing, the power to claim surrender. (Para 8 )
5. Appeal dismissed; arrest and surrender under Section 7 of the Extradition Act, 1903 held lawful. (Para 9 , 10 , 11 )
6. Does the Extradition Act, 1903 derogate from a treaty if it allows extradition for offences not listed in that treaty?
No. The Act does not derogate from a treaty when it authorizes the government to grant extradition for additional offences, as this enlarges rather than curtails the power of the other party to claim surrender. (Para 8 )
7. Does the principle of reciprocity prohibit a state from extraditing a subject for an offence not covered by a reciprocal treaty?
No. A state may provide by its own municipal law for the surrender of criminals for offences not covered by a treaty without violating reciprocity or placing the other state in an unfairly advantageous position. (Para 8 )
8. Does an extradition treaty confer a right upon subjects not to be extradited for offences other than those specifically listed?
No. An extradition treaty creates obligations between states but does not create a right for subjects or fugitive aliens to avoid extradition for offences not categorized as heinous within the treaty. (Para 8 )
Judgment
Patanjali Sastri J. - This is an appeal by special leave from an order of the High Court at Allahabad dismissing an application under Ss. 491 and 561A, Criminal P. C., for release of the appellant who was arrested in pursuance of an extradition warrant issued by the Regional Commissioner of the United State of Rajasthan who in the principal officer representing the Crown in the territory of that State.
2. The appellant who is a member of the Uttar Pradesh Civil Service was appointed in 1948 to serve what was then known as the Tonk State in various capacities, and during such service he is alleged to have helped the Nawab in obtaining the sanction of the Government of India to the payment of Rs.14 lakhs to the Nawab out of the State Treasury for the discharge of his debts, and to have induced the Nawab by threats and deception to pay the appellant, in return for such help, sums totaling Rs. 3 lakhs on various dates. On these allegations the appellant is charged with having committed offences under S. 383 (Extortion and S. 420 (Cheating), Penal Code, which are extraditable offences under the Extradition Act, 1903 (hereinafter referred to as "the Act"). The warrant was issued under S.7 of the Act to the District Magistrate Nainital where the appellant was residing after reverting to the service of the Uttar Pradesh Government, to arrest and deliver him up to the District Magistrate of Tonk.
3. The appellant s case is that the sum of Rs. 3 lakhs was paid to him by the Nawab to be kept in safe deposit in a bank for the Nawab s use in Delhi, that no offence was committed and that the amount was returned when demanded by the authorities of the Tonk State. The warrant was issued mala fide on account of enmity. Various technical objections were also raised to the validity of the warrant and to the jurisdiction of the Magistrate at Nainital to take cognisance of the matter and arrest the appellant. The High Court overruled all the objections and dismissed the application for the release of the appellant.
4. On behalf of the appellant Mr. Alladi Krishnaswami Aiyar contended that S. 7 of the Act under which the warrant purports to have been issued had no application to the case and that the entire proceedings before the Magistrate were illegal and without jurisdiction and should be quashed. Learned counsel, relying on S 18 of the Act which provides that nothing in Chapter (III which contains s. 7) shall "derogate from the provisions of any treaty for the extradition of offenders," submitted that the treaty entered into between the British Government and the Tonk State on 28th January 1869 although declared by S. 7, Indian Independence Act, 1947, to have lapsed as from 15th August 1947, was continued in force by the "Standstill Agreement" entered into on 8th August 1947, that that treaty exclusively governed all matters relating to extradition between the two States and that inasmuch as it did not cover the offences now charged against the appellant, no extradition of the appellant could be demanded or ordered.
5. The Attorney-General appearing for the Government advanced three lines of argument in answer to that contention. In the first place, the standstill agreements entered into with the various Indian States were purely temporary arrangements designed to maintain the status quo ante in respect of certain administrative matters of common concern pending the accession of those States to the Dominion of India, and they were superseded by the Instruments of Accession executed by the Rulers of three States. Tonk having acceded to the Dominion on 16th August 1947, the standstill agreement relied on by the appellant must be taken to have lapsed as from that date Secondly, the treaty was no longer subsisting and its execution because impossible, as the Tonk State ceased to exist politically and such sovereignty as it possessed was extinguished, when it covenanted with certain other States with the concurrence of the Indian Government,
