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1950 DIGILAW 111 (RAJ)

Nanka v. Govt. of Rajasthan

1950-08-09

DAVE, SHARMA

body1950
Sharma, J.—The applicant Nanka alias Nanga Singh of village Bisronda in Dholpur Sub-Division, District Bharatpur, was arrested on 26th Nov., 1949, on the requisition of the Police Kheragarh, District Agra, in Uttar Pradesh, dated nth September 1949, for an alleged offence under section 397/365 Indian Penal Code. Later on, he was let off on bail on 17th February 1950. He makes this application under sec. 491 of the Code of Criminal Procedure on the ground that his arrest and detention were illegal as there was no law of Extradition in force in Dholpur at the time of his arrest. His conditional release on bail was, therefore, not justified. He is entitled to be released unconditionally and is not liable to be surrendered to Uttar Pradesh. The bail bonds be therefore cancelled. 2. It may also be mentioned that the applicant was later on informed that he was detained in connection with some local case also. But he was ultimately discharged. This has, however, no bearing on this case. 3. We have heard the learned counsel for the applicant as well as the Government Advocate. It has been argued on behalf of the applicant that there was no extradition Act in force in Dholpur State before its merger into Matsya State and thereafter in the United States of Rajasthan, There was only a Treaty between the former Dholpur State and the then British India entered into in 1869. This Treaty consists [of 8 Articles. None of them authorises the extradition of a Dholpur subject from Dholpur State for an offence committed outside Dholpur State. Moreover, this Treaty remained a mere treaty and was never incorporated in the Municipal Law of Dholpur. It has, therefore, no effect against a subject of Dholpur State. Even after the formation of the United State of Rajasthan and the merger of Dholpur State therein, no Municipal law regarding extradition came into force. The applicant cannot therefore be extradited and is entitled to unconditional release. A ruling of this court in the case of Beerma vs. State (1) (1950 RLW 105.) decided by a Division Bench of this court on 17th March 1950, was cited in support of the applicants contention. A judgment of the final court of appeal Udaipur in the case of Mangilal vs. Sarkar was also relied upon. 4. On behalf of the State, the learned Govt. A judgment of the final court of appeal Udaipur in the case of Mangilal vs. Sarkar was also relied upon. 4. On behalf of the State, the learned Govt. Advocate conceded that no statutory recognition was given to the Treaty of 1869 entered into between the former Dholpur State and the then British India. He, however, argued that Dholpur subjects committing extraditable offences in British India according to the said Treaty have, ever since it was entered into, been extradited to British India. This shows that the law was adopted in Dholpur. He refers to "The Dholpur Extradition Guide" by Sardar Ranbir Singh a Sessions Judge of Dholpur State, to show that the law of Extradition in the terms of the Treaty was adopted in Dholpur State. He also takes his stand on the principle of reciprocity and argues that it would be unfair and unequitable if Uttar Pradesh were bound to surrender offenders to Dholpur State according to the Treaty, bat Dholpur State or for the matter of that the United State of Rajasthan be not bound to surrender offenders to Uttar Pradesh. Reliance was placed upon a recent decision of Supreme Court in the case of Dr. Ram Babu Saxena vs. State (2) (1950 RLW 232.) in Criminal appeal No.II of 1949. It was further argued that the Treaty of 1869 authorised the extradition of a Dholpur subject to British India for an extraditable offence -committed therein. 5. We have considered the arguments of the learned counsel for both the parties. We do not wish to pronounce any opinion on the question whether the treaty of 1869 authorised the extradition of a Dholpur subject to the erstwhile British India for an extra liable offence under the Treaty committed in British India as the applicant succeeds on the ground that there was no law in force on the subject of extradition in Dholpur, nor was it in force in the United State of Rajasthan when the applicant was arrested on 26th November 1949. It has been conceded by the learned Govt. Advocate that there was no statutory law in force on the subject of Extradition in the former Dholpur State. It is, therefore, clear that the Treaty of 1869 remained a mere treaty so far as Dholpur State was concerned. It has been conceded by the learned Govt. Advocate that there was no statutory law in force on the subject of Extradition in the former Dholpur State. It is, therefore, clear that the Treaty of 1869 remained a mere treaty so far as Dholpur State was concerned. It is true that offenders were extradited to British India and some Indian States in accordance with the Treaty of 1869. But this practice cannot give a mere treaty the force of law. 6. An exactly similar case has been recently decided by a Division Bench of this Court consisting of Ranawat and Mehta J. It is Beerma vs. State (1) (1950 RLW 105.) (Criminal Miscellaneous) application No. 3 of 1950) decided on 17th March 1950. There, too, the petitioner was arrested under orders of the District Magistrate Dholpur on the requisition of U. P. Government under sec. 395 Indian Penal Code. One of the contentions raised by the petitioner was that the treaty of 1869 had not been incorporated into Municipal Law of the land and therefore did not bind the subject. The contention was accepted by the learned Judges. They have given the following extract from the able judgment of the Court of Final Appeal Udaipur which was composed of Shri K.M. Munshi and two other Judges and which has been referred to above to support their view. "Mere execution of a treaty for extradition cannot by itself be treated as equivalent to enacting a law carrying it into effect. Treaties which are part of international law do not form part of the law of the land unless expressly made so by the legislature (Oppenheim International Law, Vol. 1 p. 38). The same is the position under the Government of India Act I935. Implementing of treaties and Extraditions Schedule VII, List I, item 3 are both matters for which there must be legislation before action can be taken". 7. In the above Udaipur case, a similar question arose in as much as the petitioner was requisitioned by Gwalior Government, for an extraditable offence under a treaty between Mewar and Gwalior Governments. The treaty was, however, not incorporated into the Municipal law of Mewar. The extradition was refused and the petitioner released. 7. In the above Udaipur case, a similar question arose in as much as the petitioner was requisitioned by Gwalior Government, for an extraditable offence under a treaty between Mewar and Gwalior Governments. The treaty was, however, not incorporated into the Municipal law of Mewar. The extradition was refused and the petitioner released. The following observations are worth quoting:- "The Mewar Government appears to have proceeded throughout on the basis that merely signing of the treaty and issue of executive orders to district officials was sufficient to make its stipulations binding upon its subjects, the courts and officials. But the official publication of a treaty by the Govt. under international law will be sufficient only if the Municipal Law of that State justified it. It appears that the Mewar Government have been acting for many years on the footing that the treaty and the orders of Shriji (H.H. the Maharana Udaipur) operate as Municipal law. Even the treaty with the British Government made on the 16th December 1869 and found in Aitchesons Treaties, Volume III, p. 36 does not appear to have been brought into operation by legislative enactment. Under Art. 24, Clause 4(1) of the Constitution (Mewar Constitution of 1947) all laws in force on the date of this promulgation have been continued as such after its promulgation, but in our opinion a practice of the kind aforesaid cannot be deemed to be a law which is continued by the Constitution". Note:—The words in the brackets are mine. 8. The judgment above referred to has sought support from several autho-rities,British as well as American. The view propounded therein, has been followed in the Division Bench judgment of this court above referred to. As has been said above, in the Division Bench case also the case came from Dholpur and the question was whether the Treaty of 1869 authorised the extradition of Dholpur subject to British India for an extraditable offence committed therein, without the Treaty being incorporated in the Municipal law of Dholpur. As has been said above, in the Division Bench case also the case came from Dholpur and the question was whether the Treaty of 1869 authorised the extradition of Dholpur subject to British India for an extraditable offence committed therein, without the Treaty being incorporated in the Municipal law of Dholpur. The learned Judges observed as follows:- "It may be noted that the Treaty between the British Government and the Dholpur State, after it was signed, was not given the form of law by means of a legislative enactment, but it was being acted upon by the Dholpur State authorities upto the time the State was merged into the United State of Matsya as if it was a good law. Perhaps nobody may have questioned its legality. All laws that were in force in the then Dholpur State and subsequently in the United State of Matsya, continued to be the laws in force in the area of former Dholpur State, firstly under the provision of the Ordinance No. 1 of the United State of Rajasthan and subsequently by virtue of Sec. (Art.) 372 of the Constitution of India. Treaties, which are part of the international law, do not form part of the law of the land, unless expressly made so by the legislative authority. In the present case, the Treaty remained a treaty only and no action was taken to incorporate it into a law. That treaty cannot, therefore, be regarded as a part of the Municipal law of the then Dholpur State, and the practice of surrendering fugitive criminals, which was being followed by the former Dholpur State, cannot be deemed to be a law that can be continued under sec. 372 (Art.) of the Constitution of India. See (Art.) 21 of the Constitution of India lays down that no person shall be deprived of his life or personal liberty except according to the procedure established by law. When the extradition treaty of the Dholpur State is, as discussed above, held not to possess the force of law, the liberty of a citizen of India cannot be taken away under it. The detention of the petitioner under the provision of this Treaty cannot, therefore, be held valid because it cannot be said to be according to the procedure established by law." 9. The last mentioned case is on all fours with the present case. The detention of the petitioner under the provision of this Treaty cannot, therefore, be held valid because it cannot be said to be according to the procedure established by law." 9. The last mentioned case is on all fours with the present case. It is also a judgment of the Division Bench of this court and cannot be lightly dissented from. The learned Government Advocate, however, argued that in that case it was not considered that in the former Dholpur State His Highness the Maharaj Rana of Dholpur was the highest executive as well as the legislative authority, and therefore the judgment therein has no binding effect on this Bench. It is true that in the then state of affairs His Highness the Maharaj Rana was the highest executive as well as the legislative authority. This, however, does not mean that any executive act of the Maharaj Rana amounted to a legislative act. Entering into a treaty with British India was an executive act and the treaty, to have a binding effect upon a subject, had to be incorporated into a Municipal law. Of course, the Maharaj Rana could have himself done it, but he never did so. It may be an oversight, but for that a subject cannot be bound by a mere executive act of the Maharaj Rana. In the Udaipur case, which has been cited above, exactly the same argument was made,but it was refused, as would appear from the extract of the judgment given above. The Dholpur Extradition Guide composed by a Sessions Judge of that State referred to by the learned Govt. Advocate does not show that any law was passed in Dholpur relating to extradition. It only gives the treaties and shows that a practice of extradition obtained in the State. 10. Again it was argued that the authority of the Division Bench ruling of this court cited above, has now been shaken by the ruling of the Supreme Court in the case, Dr. Rambabu Saxena v. State (1) (1950 RLW 105.) (Cr. appeal No.II of 1949 given as recently as 4th May, 1950. We have very carefully gone through this ruling which is binding upon us. However, we do not find any thing in the judgment which is contrary to the view of the learned judges of this court in the above mentioned case. In Dr. appeal No.II of 1949 given as recently as 4th May, 1950. We have very carefully gone through this ruling which is binding upon us. However, we do not find any thing in the judgment which is contrary to the view of the learned judges of this court in the above mentioned case. In Dr. Saxenas case the question was whether the U. P. Government could extradite a person alleged to have committed an extraditable offence under the Indian Extradition Act, but not under a Treaty of 1869 arrived at between British India and Tonk State. His Lordship Patanjali Sastri J. held that the U. P. Government could not be compelled to extradite such a person, but there was no bar to its surrendering him, if it so liked. There is an essential difference between the facts of that case and the facts of the present case. In that case the alleged offender was being requisitioned by Rajasthan Government from U. P. Government. The Indian Extradition Act applied to U.P. & the alleged offence was an extraditable offence under the Act. The subject could not, therefore, say that there was no law in force in U. P., according to which he could extradited. Here in Rajasthan, or former Dholpur State, no Act Similar to the Indian Extradition Act was in force when the applicant was arrested. He was requisitioned merely on the strength of the Treaty of 1869 which was not incorporated into any Municipal law upto the date of his arrest. He was, therefore, entitled to say that there was no law in force, under which he could be extradited. The ruling of the Supreme Court cited on behalf of the State has no application to the facts of the present case. 11. It was also argued that in accordance with the principle of reciprocity when an offender can be requisitioned from U. P. by Dholpur State, or for the matter of that Rajasthan, under the Treaty of 1869, it would be unfair if the offenders are not extradited from Rajasthan on the basis of the same Treaty. This is really unfortunate, but a subject cannot be bound by a mere Treaty not incorporated into a Municipal Law, simply because it has been incorporated into the Municipal law of another State, or because there is a statutory law regarding extradition in the latter State. This is really unfortunate, but a subject cannot be bound by a mere Treaty not incorporated into a Municipal Law, simply because it has been incorporated into the Municipal law of another State, or because there is a statutory law regarding extradition in the latter State. It was for the then Government of British India to press Dholpur Durbar to pass an Extradition Act in accordance with the Treaty of 1869, but somehow it escaped the attention of that Government. The applicant cannot, therefore, be extradited to Uttar Pradesh for the alleged offence in the absence of any such law prevailing in Rajasthan on the date of his arrest. We have no reason to differ from the Division Bench ruling of this court cited above. 12. According to Art. 21 of the Constitution of India, no person can be deprived of his personal liberty except according to procedure established by law. The applicant, therefore, is entitled to be released unconditionally. 13. The application is allowed and it is ordered that he will not be extradited for the alleged offences and his bail bonds are cancelled.