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1967 Supreme(Cal) 73
HIGH COURT OF CALCUTTA
BIJAYESH MUKHERJI
JUGAL KISHORE MORE - Appellant
Versus
CHIEF PRESIDENCY MAGISTRATE CALCUTTA - Respondent
Criminal Revn. 502 Of 1966
Decided On : APRIL 20, 1967
A.C.MITRA, AJIT KUMAR DUTT, Arun Kumar Dutt, P.K.BOSE, Ram Niranjan Bajoria
Headnote:
The Chief Presidency Magistrate, Calcutta, issued a warrant of arrest against the petitioner, Jugal Kishore More, who was residing in Hong Kong, for his alleged involvement in a criminal conspiracy in India. The warrant was endorsed by a Magistrate in Hong Kong, and More was arrested and remanded in custody. He filed a petition in the Calcutta High Court challenging the legality of the warrant and the subsequent proceedings. A division bench of the High Court issued a rule nisi calling upon the respondents, including the Chief Presidency Magistrate, the State of West Bengal, and the Union of India, to show cause why the warrant and the subsequent proceedings should not be quashed. The division bench, however, was equally divided in its opinion, leading to the matter being referred to a third judge.
Fact of the Case:
The Chief Presidency Magistrate, Calcutta, issued a warrant of arrest against the petitioner, Jugal Kishore More, who was residing in Hong Kong, for his alleged involvement in a criminal conspiracy in India. The warrant was endorsed by a Magistrate in Hong Kong, and More was arrested and remanded in custody. He filed a petition in the Calcutta High Court challenging the legality of the warrant and the subsequent proceedings.
Finding of the Court:
The court held that the Chief Presidency Magistrate did not have the jurisdiction to issue the warrant of arrest against the petitioner in the manner he did. The court also held that the subsequent proceedings taken by the Magistrate and the other respondents were illegal. The court quashed the warrant of arrest and all subsequent proceedings.
Issues: 1. Whether the Chief Presidency Magistrate had the jurisdiction to issue the warrant of arrest against the petitioner in the manner he did. 2. Whether the subsequent proceedings taken by the Magistrate and the other respondents were legal.
Ratio Decidendi: 1. The court held that the Chief Presidency Magistrate did not have the jurisdiction to issue the warrant of arrest against the petitioner in the manner he did because: a. The warrant was issued for an offence allegedly committed outside India, and the Magistrate did not have the jurisdiction to try or inquire into such an offence. b. The warrant was issued without taking security from the petitioner, which was required by law. c. The warrant was not executed in accordance with the procedure prescribed by law. 2. The court held that the subsequent proceedings taken by the Magistrate and the other respondents were illegal because they were based on the invalid warrant of arrest.
Final Decision: The court made the rule absolute and quashed the warrant of arrest and all subsequent proceedings.
( 1 ) THIS is a case laid before me under Section 439, Sub-section (1), read with Section 429, of the Code of Criminal Procedure, 5 of 1898, with the divided opinions of Brothers Amaresh Roy and Alak Gupta, on the legality of steps taken to secure the extradition of one Jugal Kishore More from Hong Kong to India, and in particular to the Court of the Chief Presidency Magistrate. Calcutta.
( 2 ) TO begin from the very beginning of the matter now at issue, during the pendency, at the investigation stage, of Taltola police-station case No. 237 dated May 4, 1962, under Sections 120b/420/467/471 of the Penal Code against Suprokash Mukherjee and others, before the Chief Presidency Magistrate, Calcutta, a Sub-Inspector of Police of the detective department, one Benoy Kr. Mukherjee, drew up a petition on May 11, 1965, to the address of the same Magistrate, stating inter alia: Jugal Kishore More and others "were parties to a criminal conspiracy in Calcutta between May 1961 and December 1962 to defraud the Govt. of India in respect of India's Foreign Exchange. " Sub-inspector Mukherjee therefore, prayed that the Magistrate "would be pleased on perusal of the relevant records and recording necessary evidence to issue non-bailable arrest warrants endorsed to Commissioner of Police, Calcutta" against the said More (omitting the names of other persons not material for the present purpose!" for causing execution" at Hong Kong: vide the second sub-paragraph of paragraph 17 of Sub-Inspector Benoy Kr Mukherjee's petition dated May 11, 1965, to the address of the Chief Presidency Magistrate, at page 568 of file III of the Magistrate's records of the case. The petitioning Sub-Inspector prayed for a little more too: for the favour of forwarding "the warrants with relevant records and evidence to the Ministry of External Affairs, Govt. of India, through proper channel for extradition of" Jugal Kishore More.
( 3 ) SUCH was the petition which Deputy Commissioner P. K. Sen forwarded to the Magistrate, as his endorsement dated May 11, 1965, too, on the left-hand margin at the very first page goes to show. [see page 563 of File of the III Magistrate's records. ] but filed such petition was in court: the court of the Chief Presidency Magistrate : on May 29, 1965, as the Magistrate's dated initials. coupling with an endorsement, a little above Deputy Commissioner P. K. Sen's testify And that very day. namely, on May 29, 1965, the Chief Presidency Magistrate recorded, in the order-sheets, an order on this petition of Sub-Inspector B. K. Mukherjee (referred to in the order as I. O. : Investigating Officer), observing inter alia :"the warrants for the apprehension of the first three persons named above (of whom Jugal Kishore More is one) will have to be sent to the External Affairs Ministry, Govt. of India, for execution through diplomatic channel. The position therefore requires to be examined with more than ordinary care and I should be satisfied on evidence and other available information that the above-named persons (including, of course, Jugal Kishore More) committed the requisite offence or offences in India and that the issue of the warrants against them is otherwise justified. "he, therefore, directed the investigating officer "to arrange for production of relevant evidence, including statement on oath, if any and documents and other materials in support of the requisition" and set the matter down for hearing on June 5. 1965 Such is the Chief Presidency Magistrate's order No. 80 dated May 29, 1965.
( 4 ) EVIDENCE - oral and documentary -was entered into on June 5, and thereafter on June 19, 26, and July 17, 1965: vide orders numbering 81, 86, 88 and 101 recorded in the order-sheets of the case. On July 19, 1965, order No. 102, the Chief Presdency Magistrate found, on materials he had put before him a prima facie case made out against Jugal Kishore More of a criminal conspircy, part-of which "was hatched" in Calcutta within
