A magistrate can only grant bail to a fugitive criminal if jurisdiction is established through the issuance of an arrest warrant.

1One Rajan Pillai, styling himself as "a fugitive criminal", appeared in the Court of Additional Chief Judicial Magistrate, Thiruvananthapuram on 8-4-1995 and sought for bail. Learned magistrate released him on "interim bail" on certain conditions and proceeded to report to the Central Government of the surrender of that person (who would hereinafter be referred to as the petitioner). A learned Judge of this court, while holding sittings during mid-summer vacation, came to know of the order and called for the records of the case immediately for examining the records. Later the records were examined by another learned Judge who was holding sittings during the latter half of the mid-summer vacation. Learned Judge, after expressing his own tentative opinion, referred the questions involved in the case to be considered by a larger Bench. This is how we are called upon to deal with the matter.

2We heard Shri M. Retna Singh, learned Public Prosecutor (who is also the Director General of Prosecutions in Kerala), Shri M.N. Sukumaran Nayar, Senior Counsel who argued for the petitioner and Shri A.K. Dutt, who argued for the Central Bureau of Investigation.

3Petitioner is a citizen of India. He has been dealing in large scale business abroad. While so, criminal proceedings were taken against him by the District Judge, Singapore and he was convicted of certain offences including criminal breach of trust and cheating. Though he was on bail at Singapore, he skulked from that country and reached India when he knew of the conviction and sentence passed on him. He first moved the Court of Sessions at Bombay through his wife for anticipatory bail under S.438 of the Code of Criminal Procedure. When that move did not succeed, he approached the High Court of Bombay under Art.226 of the Constitution for restraining the C.B.I. from arresting him. The Bombay High Court rejected the original petition by recording the submission of CBI's counsel that if petitioner is arrested, he would be produced before the competent magistrate in accordance with the procedure laid down by law. Petitioner then proceeded to Thiruvananthapuram and appeared before the Additional Chief Judicial Magistrate and applied for bail. The proceedings adopted by the said Additional Chief Judicial Magistrate are now being examined by us.

4Additional Chief Judicial Magistrate, Thiruvananthapuram granted bail in the purported exercise of powers envisaged in S.9 of the Extradition Act, 1962 (for short 'the Act'). S.2(f) of the Act defines a fugitive criminal as "an individual who is accused or is convicted of an extradition offence committed within the jurisdiction of a foreign state or a commonwealth country and is, or is suspected to be, in some part of India". Extradition offence in relation to a foreign State other than a treaty State means "in relation to a commonwealth country an offence which is specified in the second schedule to the Act". Two things not disputed before us are, that Singapore is a commonwealth country and that is not a treaty State ie. there is no extradition treaty between the two countries.

5Chap. 2 of the Act deals with extradition of fugitive criminals to foreign State and to commonwealth countries (when Chapter III does not apply). It consists of a fasciculus of provisions commencing with S.4. Under S.4 a requisition for surrender of a fugitive criminal of a commonwealth country can be made to the Central Government of India by a diplomatic representative of the commonwealth country at Delhi. When requisition under S.4 is made, the Central Government is empowered under S.5 to issue an order to "any magistrate (who would have had jurisdiction to enquire into the offence if it was an offence committed within the local limits of his jurisdiction) directing him to enquire into the case.

6It is submitted on behalf of Government of India that Singapore Government made a requisition for extradition of the petitioner. Such requisition was made through the High Commis