In re, Sankaranarayana v. . — 1951 DIGILAW 338 (MAD)

ORDER This criminal revision petition is against the order of the Additional District Magistrate II, Tirunelveli, in M.C. No. 1 of 1961 extraditing the petitioner for offence of criminal misappropriation of property and criminal breach of trust under S. 3 (4) of the Extradition Act. 2. The learned Advocate General raised a preliminary objection that the order of the Additional District Magistrate II, Tirunelveli, could not be revised by this court under S. 439 Cri. P. C. His contention is that after a magistrate finds that a prima facie case has been made out, he should only make a report to the Government under S. 3(6) of the Act and it is for the Central Government to decide whether the fugitive offender should be surrendered or not. He relied on the decision in Rudolf Stallmann v. Emperor, ILR 38 Cal 547 where it was held that the High Court has no jurisdiction under S. 15 of the Charter Act to revise the proceedings of a magistrate acting under Ss. 3 and 4 of the Extradition Act. But this decision was distinguished in the matter of Rudolf Stallmann, ILR 39 Cal 164, after the extradition proceedings against Rudolf Stallmann were concluded. It was pointed out in that decision that "the view may well be maintained that though it is not open to the High Court to interfere with proceedings of the magistrate during the pendency of the extradition enquiry, occasion may arise for the exercise of the powers under S. 491 Cri. P. C. after the enquiry has closed.' Reliance was placed on the decision in Rajangam v. State of Madras, ILR (1959) Mad 12 : ( AIR 1959 Mad 294 ), in support of the contention that extradition proceedings, like proceedings under S. 176 Cri. P. C. could not be subject to the revisional jurisdiction of the High Court. The definition of judicial proceeding in clause 4(m) of the Cri. P. Code as including any proceeding in the course of Which evidence is or may be legally taken on oath, was attempted to be used during arguments in that decision as showing that proceedings under S. 176 Cri. P. C. are judicial proceedings and are subject to revisional jurisdiction of the High Court. P. Code as including any proceeding in the course of Which evidence is or may be legally taken on oath, was attempted to be used during arguments in that decision as showing that proceedings under S. 176 Cri. P. C. are judicial proceedings and are subject to revisional jurisdiction of the High Court. But it was pointed out in that decision that the definition only means that wherever the expression "judicial proceeding" is used, it is a proceeding in the course of which evidence is or may be legally taken on oath and that the converse is not always the truth. It was also pointed out in that decision that under S. 435 Crl. P. C. the High Court can call for and examine the records of any proceeding, only of an inferior criminal court and that it was not contended in that case that an enquiry by a magistrate under S. 176 Cri. P. C. is by a court. In fact in Vijayaraghavalu v. Theagaraya Chetti, ILR 38 Mad 581 : (AIR 1915 Mad 360(2)) relied on by the respondent it was held that the High Court has no jurisdiction to revise an order passed by a presidency magistrate in an inquiry held by virtue of the rules framed by Government under the Madras City Municipal Act, whereby a magistrate may decide as to the competency or otherwise of a candidate for municipal election. The reason for the decision is that the magistrate is not a court subject to the appellate jurisdiction of the High Court within the meaning of that word in S. 15 of the Charter Act and that he is in the position of a referee between the president of the Municipal Corporation and the candidate. 3. Under Extradition Act, it is only a magistrate, who would have had jurisdiction to enquire into a crime if it bad been an offence committed within the local limits of his jurisdiction, who could be directed to enquire into an extradition case. Such a magistrate should enquire and decide whether a prima facie case is made out in support of the requisition for extradition of the fugitive criminal. Such a magistrate should enquire and decide whether a prima facie case is made out in support of the requisition for extradition of the fugitive criminal. In conducting the extradition proceedings the magistrate shall enquire into the case in the same manner and with the same jurisdiction and powers, as nearly as may be, as if the case were one triable by a court of session or High Court. Thus he should follow the procedure laid down in Chapter XVIII Crl. P. C. as regards enquiry into cases triable by the court of Session or High Court. In Mabel Ferris v. Emperor, ILR 53 Bom 149 : (AIR 1929 Bom 81) it was held that the order passed by the Chief Presidency Magistrate under S. 7 of the Extradition Act was a judicial order and as such was subject to revision by the High Court under S. 439 Cri. P. C. In H. K. Lodhi v. Shyamlal, AIR 1950 All 100 also it was held that the order passed by a magistrate in proceedings subsequent to the arrest of the accused under S. 7 of the Extradition Act was a judicial order and as such was open to revision. This decision was quoted with approval in the Full Bench decision in re, Chockalingam, ILR (1960) Mad 829 : ( AIR 1960 Mad 548 ). The Additional District Magistrate II Tirunelveli in enquiring under the Extradition Act whether the petitioner had committed a prima facie extraditable offence is a criminal court within the meaning of S. 6 Crl. P. C. and his orders are revisable under S. 439 of the said Code. 4. The learned Advocate General referred to several clauses of S. 3 of the Extradition Act and pointed out that it has prescribed a special procedure for the enquiry of extradition offences by a magistrate and that by reason of S. 1(2) Cri. P. C. the provisions of the Crl. P. Code such as revision could not be invoked to revise orders of the magistrates passed under the Extradition Act. I do not find that any special procedure has has been prescribed in S. 3 of the Extradition Act so as to exclude the provisions of the Criminal Procedure Code. P. C. the provisions of the Crl. P. Code such as revision could not be invoked to revise orders of the magistrates passed under the Extradition Act. I do not find that any special procedure has has been prescribed in S. 3 of the Extradition Act so as to exclude the provisions of the Criminal Procedure Code. I have already referred to the decision in ILR 39 Cal 164, where it was held that the special procedure under S. 3(6) of the Extradition Act takes the place of that indicated in the English Act as the procedure to be followed in the extradition proceeding itself, and that S. 3(6) of the Extradition Act is not a substitute for and does not interfere with proceedings such as those taken under a different jurisdiction to test a custody alleged to be illegal within the terms of S. 491 Crl. P. C. S. 3(3) of the Extradition Act only makes Ch. XVIII Cri. P. C. applicable to the enquiries by the magistrate under that clause. There is a provision for reference to the High Court on points of law under clause (7) of S. 3 of the Extradition Act. Such a provision is analogous to S. 432 Crl. P. C. which could not be easily invoked in proceedings under the Extradition Act. Thus, I do not find any special procedure prescribed in S. 3 of the Extradition Act, which would have the effect of excluding the applicability of S. 439 Crl. P. C. For the foregoing reasons, I find that this court has jurisdiction to revise the order of the Additional District Magistrate II Tirunelveli and I am therefore unable to uphold the preliminary objection of the learned Advocate General. 5. I shall now proceed to consider the several objections urged by the learned Advocate for the petitioner as regards the legality and validity of the order of the learned Additional District Magistrate II Tirunelveli. The first objection is that under S. 3(1) of the Extradition Act, it is only the magistrate, who would have had jurisdiction to enquire into the crime if it had been an offence committed within the local limits of his jurisdiction, who could be directed to enquire into the case and that an executive magistrate, who could not normally enquire or try cases, would have no jurisdiction to hold the enquiry under S. 3 of the Extradition Act. I am unable to uphold this objection of the learned advocate for the petitioner. The Criminal Procedure Code has defined several classes of Criminal courts in S. 6 and it makes no distinction between the executive and the judicial magistrate. It is only under circulars relating to the powers of magistrates under the scheme of separation that the magistrates have been classified as executive and judicial magistrates and their functions have been defined. Powers under Ss. 3, 4, 7, 8-A and 10 of the Extradition Act have been conferred on Executive Magistrates. But for the circulars relating to the powers of magistrates under the scheme of separation, the Executive Magistrates would have had jurisdiction to enquire into the crime if it had been an offence committed within the local limits of his jurisdiction, as required by S. 3 of the Extradition Act. The fact that such Executive magistrates are not normally given functions which are essentially judicial, as for instance, the trial of criminal cases, would not have the effect of making them incompetent to exercise the powers under Ss. 3, 4, 7, 8-A and 10 of the Extradition Act, conferred on them. I am therefore unable to accept the contention of the learned Advocate for the petitioner that the Additional District Magistrate II Tirunelveli has no jurisdiction to enquire under S. 3 of the Extradition Act. 6. The second objection of the learned Advocate for the petitioner is that the Additional District Magistrate II Tiruneveli should have followed the procedure prescribed for trials before High Court and Court of Session in Ch. XXIII of the Crl. P.C. This objection is based on a wrong reading of S.3(3) of the Extradition Act, which contemplates only an enquiry into the case in the same manner as if the case were one triable by the court of session or by a High Court. Ch. XXIII Crl. P.C. relating to trial of sessions cases can have no application to an enquiry under Extradition Act. Sec. 3(3) of the Extradition Act contemplates a magistrate holding enquiry under that section to follow the procedure laid down in Ch. XVIII of the Criminal Procedure Code. 7. The third objection of the learned Advocate for the petitioner is that the learned Additional District Magistrate II Tirunelveli erred in relying on the depositions taken by Colombo magistrate in the absence of the petitioner as evidence in the case. XVIII of the Criminal Procedure Code. 7. The third objection of the learned Advocate for the petitioner is that the learned Additional District Magistrate II Tirunelveli erred in relying on the depositions taken by Colombo magistrate in the absence of the petitioner as evidence in the case. Sec. 17 of the Extradition Act provides that in any proceedings under Ch. III exhibits and depositions (whether received or taken in the presence of the person against whom they are used or not) and copies thereof, and official certificates of facts and judicial documents, stating facts, may, if duly authenticated, be received as evidence. The contention of the learned Advocate for the petitioner is that the enquiry in this case was not one conducted under Ch. III of the Extradition Act and hence S. 17 of the Act cannot be invoked. It is clear from the decision of the Full Bench in I.L.R. (1960) Mad. 829 : ( AIR 1960 Mad 548 ) that the rendition of the petitioner to the Ceylon Government would fall under Ch. III of the Extradition Act. Hence the learned Additional District Magistrate II Tirunelveli is justified in relying on the statements recorded before the Colombo Magistrate, in the absence of the petitioner, as evidence in the case. The fourth objection of the learned advocate for the petitioner is that there is no evidence as to the nature of the offence committed by the petitioner according to Ceylon law. He relied on the decision in re, Shutter, 1959-2 All ER 782, in support of his contention. In that decision it was held that there was no evidence before the Chief Magistrate that the alleged offence came within S. 9 of the Fugitive Offenders Act, 1881, as it was not shown that the offences were punishable in Kenya by imprisonment with hard labour for a term of 12 months or more, or by any greater punishment. In that case there was a warrant from Kenya duly authenticated for the apprehension of the applicant Shutter. But in order to commit Shutter to prison, the Chief Magistrate had to be satisfied under the provisions of S. 9 of the Fugitive Offenders Act, 1881, that Shutter had committed an offence punishable with imprisonment with hard labur for a term of 12 months or more, or by any greater punishment according to the law of Kenya. But in order to commit Shutter to prison, the Chief Magistrate had to be satisfied under the provisions of S. 9 of the Fugitive Offenders Act, 1881, that Shutter had committed an offence punishable with imprisonment with hard labur for a term of 12 months or more, or by any greater punishment according to the law of Kenya. But in the present case the magistrate had only to satisfy himself that the petitioner had committed an extraditable offence of criminal misappropriation or criminal breach of trust as defined in Ss. 403 and 406 I.P.C. In fact, the requisition received by the learned Additional Magistrate showed that the petitioner was alleged to have committed an offence punishable under S. 391 or 386 of the Ceylon Penal Code corresponding to S. 406 or 403 I.P.C. 8. The last observation of the learned advocate for the petitioner is that the learned Additional District Magistrate it has erred in finding that a prima facie case had been made out against the petitioner for the offence of criminal breach of trust. There is no substance in this contention. The complainant has been examined by the learned Additional District Magistrate II Tirunelveli and he has clearly given evidence in support of the complaint made by him against the petitioner. It is not possible for the petitioner to contend that there is no evidence in this case which would justify the magistrate to come to the conclusion that a prima facie case had been made put against him. 9. For the foregoing reasons, I find no ground to interfere with the order of the learned Additional District Magistrate II Tirunelveli extraditing the petitioner. The revision petition is therefore dismissed.