Kandasamy V. Bandaranayake

1947 Present: Dias J.

KANDASAMY, Petitioner, and BANDARANAYAKE, Respondent.

Application in Revision 339-M. C, Point Pedro.

Fugitive Offenders Act, ss. 13, 14-Application for surrender--Lawful authority to issue warrant-Endorsement of foreign warrant-Indian law.

An accused was convicted by the Court of Sessions in India. He preferred an appeal against his conviction to the High Court which affirmed the conviction and sent the case back to the Court of Sessions under section 425 of the Indian Criminal Procedure Code so that the Court of Sessions should give effect to the order of the High Court. The accused, however, absconded to Ceylon and was unlawfully at large in Ceylon before the expiry of his sentence.

Held, that a warrant for the surrender of the convict under Part II of the Fugitive Offenders Act, 1881, should have been signed by a Judge of the Court of Sessions and not by a Sub-Divisional Magistrate or Additional District Magistrate. There being no proof that the Indian law authorised a Judge of Sessions to delegate his powers under sections 92 and 425 of the Indian Criminal Procedure Code to the Sub-Divisional Magistrate or Additional District Magistrate, the warrant for the arrest of the convict was not issued " by a person having lawful authority to issue the same" within the meaning of section 14 of the Fugitive Offenders Act.

Held, further, that under section 13 of the Fugitive Offenders Act, before a Magistrate endorses the foreign warrant for execution in Ceylon he should be satisfied that it was issued by a, person having lawful authority to issue the same.

Indian Law is "foreign law" and cannot be judicially noticed by a Ceylon Court.

APPLICATION in revision against an order of the Magistrate of A Point Pedro.

H. V. Perera, K.C. (with him H. W. Thambiah, H. Wanigatunga and S. Mahadevan), for the petitioner.

H. Deheragoda, C.C., for the Attorney-General.

Cur. adv. vult.

 August 26, 1947. DIAS J.-

The petitioner was tried in the Court of Sessions, East Tanjore Division, at Negapatam (a place within what was known as "British India ") for the offence of criminal intimidation under section 506 of the Indian Penal Code. After trial he was convicted and sentenced to undergo two years rigorous imprisonment and to pay a fine of Rs. 1,000, and in default to undergo 6 months rigorous imprisonment (see exhibit P 3). The petitioner then appealed to the High Court of Madras which ordered the Sessions Judge to admit the petitioner to bail pending the determination of the appeal.

The High Court affirmed the conviction but set aside the fine, but the substantive sentence of two years rigorous imprisonment was confirmed (see P 4).

The petitioner thereafter applied to the Privy Council for special leave to appeal. This application was refused (see P 5 of October 25. 1945).

It is alleged that the petitioner thereafter, without surrendering to the Indian Court and serving his sentence, is unlawfully at large in Ceylon before the expiry of his sentence.

An earlier abortive attempt by the Indian authorities to secure the surrender of this petitioner is reported in 47 N, L. R, 470. This Court then held that the proceedings culminating in the order for the surrender of the alleged fugitive were defective, and directed the petitioner to be forthwith discharged and freed from all restraint so far as those proceedings were concerned.

The Indian authorities thereupon started de novo. The warrant issued by the Indian Court is the exhibit P I. That warrant bears the signatures of the Sub-Divisional Magistrate of Negapatam and of the Additional District Magistrate Tanjore District. Both these signatures have been authenticated by the respective seals of the two Magistrates' Courts, There is also appended the affidavit of K. Marimuttu Pillai, the escort, to the effect that the Sub-Divisional Magistrate of Negapatam signed and sealed the warrant in his

Click Here to Read the rest of this document