Judgment 1. ON an allegation that the petitioner had committed the offence of murder within the territory of Sikkim, the Government of Sikkim made a requisition to the Government of India for his surrender to the Government of Sikkim for his trial there The Government of India after receipt of this requisition made an order under Section 5 of the Extradition Act of 1962, directing the District Magistrate Darjeeling to enquire into the case. The District Magistrate, Darjeeling has made an enquiry under Section 7 of the Act and has sent a report to the Government of India under Section 7 (4) of the Act holding that a prima facie case has been made out in support of the requisition of the Sikkim Government. The petitioner has thereafter obtained this Rule. 2. MR. Roy, who appears for the Government of India and Mr. Burman who appears for the State of West Bengal have both taken a preliminary objection that the order made by the District Magistrate is not revisable under Section 439 of the Code of Criminal Procedure. Under Section 5 of the Extradition Act. the Central Government may direct "any Magistrate" who would have had jurisdiction to enquire into the offence if it had been an offence committed within the local limits of its jurisdiction, to enquire the case. The word "magistrate" has been defined in the Act as a Magistrate of First Class or a Presidency Magistrate. When the Extradition Act defines "magistrate" as a Magistrate of the First Class or a Presidency Magistrate, the obvious reference is to Section 6 of the Code of Criminal Procedure and a reference to Section 6 will show that a Magistrate of a First Class or a Presidency Magistrate is a criminal court under the Code of Criminal Procedure. Here, the Central Government directed the District Magistrate, Darjeeling to make an enquiry. True, no one other than the District Magistrate can make the enquiry. But the District Magistrate as a Magistrate of First Class is a criminal court within the meaning of Section 6 of the Code of Criminal Procedure. The enquiry might have been directed to any other Magistrate within the meaning of the Extradition Act and since the definition of 'any Magistrate' has reference to the Code of Criminal Procedure obviously the Magistrate making the enquiry becomes a criminal court. The enquiry might have been directed to any other Magistrate within the meaning of the Extradition Act and since the definition of 'any Magistrate' has reference to the Code of Criminal Procedure obviously the Magistrate making the enquiry becomes a criminal court. Furthermore, the Magistrate who is to make the enquiry has to determine if a prima jade case has been made out in support of the requisition and if he is of opinion that a prima facie case has not been made out, he has the power to discharge the fugitive criminal. Clearly therefore, the Magistrate has to make this determination judicially. This can never be an executive act even though it can be said, as has been held in some cases that the order of the Magistrate to execute a warrant against a fugitive criminal may be an executive act but the determination by him on evidence as to whether there is a prima facie case in support of the requisition is a judicial determination by a criminal court. This question came up for consideration before different High Courts under the relevant provisions of the Extradition Act of 1903. When an extradition proceeding was pending against Rudolf Stallman, he moved this court for quashing the said proceedings but this court held in (1) Rudolf Stallman v. The Emperor (15 CWN 737), that the Magistrate holding an enquiry under the Extradition Act, 1903 was not subject to the appellate jurisdiction of the High Court and so the High Court could not interfere under Section 15 of the Charter Act. When the extradition proceeding ended with an order for his surrender, Rudolf Stallman again came up before this court and this court held that it had powers under section 491 of the Code of Criminal Procedure and directed his release. The question whether Section 439 of the Code was attracted or not does not appear to have been specifically raised or considered in those cases. The question whether Section 439 of the Code was attracted or not does not appear to have been specifically raised or considered in those cases. But in (2) Guli shahu v. Emperor (18 CWN 869) this court discharged the fugitive criminal from custody under Section 439 of the Code and said "it is true that Section 15 of the Act ousts the jurisdiction of this court to enquire into the propriety of a warrant issued under Chapter 3 but where the order of the Magistrate is sought to be justified under an authority supposed to be derived from the law but is in fact without jurisdiction, not being sanctioned by it, we cannot but assume that the Magistrate has acted in his general jurisdiction, and as such his order is revisable by this Court and liable to be set aside at the instance of the party whose liberty is affected by it". True, in (3) Guli Shahu v. The Emperor (19 CWN 221) this court held that the Magistrate was, in executing a warrant of arrest, performing an executive act and so section 439 of the Code of Criminal Procedure was not attracted. It will thus appear that the effect of these two decisions is that though the High Court had no power to enquire into the propriety of the warrant, it could interfere with an order made by the Magistrate in the extradition proceeding for surrender of the fugitive criminal. The Bombay High Court in (4) Bai Aisha (AIR 1920 Bom. 81) considered the previous decisions of the Calcutta High Court and. found that even the execution of a warrant under Section 7 of the Extradition Act, 1903, was not an executive act because the Magistrate has judicially to consider the matter and decide whether the warrant can be executed according to law and so the order of the Magistrate is subject to the revisional powers of the High Court. Here, the Bombay High Court followed its previous decision in (5) The Emperor v. Hasim Ali (1905 7 Bombay LR 463. The Allahabad High Court in (6) H. K. Lodhi v. Shyam Lal (AIR 1960 Allahabad 100) on a consideration of the Calcutta and Bombay decisions, came to the conclusion that orders of a Magistrate in an extradition proceeding were judicial orders and as such were open to revision. The Allahabad High Court in (6) H. K. Lodhi v. Shyam Lal (AIR 1960 Allahabad 100) on a consideration of the Calcutta and Bombay decisions, came to the conclusion that orders of a Magistrate in an extradition proceeding were judicial orders and as such were open to revision. This decision was arrived at disagreeing with the previous decision of the same High Court in (7) Sundal Singh v. District Magistrate, Dehra Dun (1934 CLJ 1296. The Madras High Court has in (8) Re : Sankaranarayana Rengan Reddiar 1962 CLJ 697 on a consideration of the previous decisions of the different High Courts held that the Magistrate enquiring under the Extradition Act is a criminal court and his orders are revisable under Section 439 of the Code of Criminal Procedure. With respects I agree with this decision and for the reasons given therein. This conclusion gets support from the observations of the Supreme Court in (9) State of West Bengal v. Jugal Kishore More and another 1969 SCC 441, where it said "the law relating to extradition between independent states is based on treaties. But the law has operation national as well as international. It governs international relationship between sovereign states which is secured by treaty obligation. But whether an offender should be handed over pursuant to requisition is determined by the domestic law of the State on which the requisition is made. Though extradition is granted in implementation of the international commitments of the State, the procedure to be followed by the 'courts' in deciding whether extradition should be granted and on what terms is determined by the municipal law". Then again, "international commitment or treaty will be effective only in the 'court of a country' in which the offender should be surrendered." Obviously therefore, the Supreme Courts considered the Magistrate's making this enquiry under Section 7 of the Extradition Act, 1962 as 'courts' of this country. I am, therefore, of opinion that Section 439 of the Code is attracted to the instant case. But even if I assume that Section 439 of the Code of Criminal Procedure is not attracted, there is no doubt that Article 227 of the Constitution is attracted. The petitioner's application is also under Article 227 of the Constitution. We have seen how the Magistrate making the enquiry under the Extradition Act functions judicially and acts judicially. But even if I assume that Section 439 of the Code of Criminal Procedure is not attracted, there is no doubt that Article 227 of the Constitution is attracted. The petitioner's application is also under Article 227 of the Constitution. We have seen how the Magistrate making the enquiry under the Extradition Act functions judicially and acts judicially. There is no doubt, therefore, that such a Magistrate is a 'tribunal' within the meaning of Article 227 of the Constitution and so the order made by the Magistrate under Section 7 (4) of the Extradition Act is revisable under Article 227 of the Constitution. This has not been disputed either by Mr. Burman or by Mr. Roy but they have argued that the instant case does not come under Article 227 of the Constitution as there is no want of jurisdiction of the District Magistrate to make the instant order. 3. LET us come to the merits of the matter. The allegation is that the petitioner had committed the murder of two persons, Ram Chandra and Sudarsan within the territory of Sikkim. The materials on record do not show that any one had seen the petitioner causing the murders. The materials on record only show that on September 24, 1967, the petitioner, Ram Chandra, Sudarsan and one other person Biswanath Singh went in a taxi to Sikkim and were last seen together at about 3 P. M. near Melli-Jorthang and Melli-Namchi Road Junction. The dead bodies were recovered the next morning at some distance from there. On these materials even prima facie it cannot be said that the petitioner was the person who had committed these murders. Furthermore, it must be said that even the identity of the petitioner with the person for whom the Sikkim Government has sent the requisition has not been clearly established. The requisition is for one Hari Shankar alias Shib Sankar, There is no father's name, there is no address. Only it is said that Hari Sankar alias Shiv Sankar is of Siliguri. The materials on record show that there are other persons at Siliguri known as Hari Sankar and the petitioner has denied that he was ever known as Shiv Sankar. Only it is said that Hari Sankar alias Shiv Sankar is of Siliguri. The materials on record show that there are other persons at Siliguri known as Hari Sankar and the petitioner has denied that he was ever known as Shiv Sankar. On the basis of the materials on record, therefore, it cannot be said that a prima, facie case has been made out in support of the requisition and hence the District Magistrate had no jurisdiction to act under Section 7 (4) of the Act. 4. IN the result, the Rule is made absolute. The order of the District Magistrate, Darjeeling, under Section 7 (4) of the Extradition Act is set aside. The petitioner be released forthwith from custody. Sarma Sarkar, J. : I agree with my Lord that the petitioner has to be forthwith released from custody, but for somewhat different reasons on points of law as stated below. It was argued by the learned Counsel Mr. B. C. Roy for the Union of India and Mr. P. Barman for the State of West Bengal that this Court has no jurisdiction to set aside the order either of the District Magistrate or the Sessions Judge under Sections 435 and 439 of the Code of Criminal Procedure. But Mr. Dibish Roy appearing for the petitioner has urged that this Court has jurisdiction to grant the relief under Sections 435, 439 or, at any rate, under Section 561a of the Code of Criminal Procedure. It is, therefore, necessary to examine the position with reference to the facts of the present case. 5. ON a requisition by the Government of Sikkim for extradition for the trial of an offence of an alleged murder committed within the jurisdiction of Sikkim Court, a requisition was sent to the Central Government for sending the petitioner in custody to that Government. On receipt of that requisition under Section 5 of the Extradition Act, 1962, i. e. Act XXXIV of 1962 (hereafter referred to as the Act), the Central Government issued an order on the Dist. Magistrate of Darjeeling to make an enquiry under Sec. 7 of the Act and to submit a report. On receipt of that requisition under Section 5 of the Extradition Act, 1962, i. e. Act XXXIV of 1962 (hereafter referred to as the Act), the Central Government issued an order on the Dist. Magistrate of Darjeeling to make an enquiry under Sec. 7 of the Act and to submit a report. The District Magistrate made the enquiry and by his order dated the 24th of July, 1969, held that there is a prima facie case in support of the requisition of the Government of Sikkim and ordered that 'the fugitive criminal Hari Shankar, who is already in jail custody will remain in jail custody to await the order of the Central Government. The Sessions Judge, Darjeeling, was moved against the order but the Sessions Judge rejected the same. Thereafter the present Rule was obtained but it appears that the petitioner has remained in custody since then. The main question for consideration is whether the order made by the District Magistrate under Section 7 (4) of the Act is revisable by this Court under Sections 435, 439 or under Section 561a of the Code of Criminal Procedure. In my opinion, this Court has no jurisdiction under Sections 435. 439 or under Section 561a of the Code to revise the order passed by the District Magistrate. This is based on two reasons. First, the enquiry held by the District Magistrate under Section 7 of the Act cannot be said to be an enquiry by an inferior criminal court within the meaning of Secs. 435, 439 or Sec. 561a of the Code oi Criminal Procedure. Secondly, under Section 7 (4) of the Act, the submission of the report does not amount to a final. order or a definitive order on the basis of the enquiry and, if that is not a final or definitive order, then, it cannot he said that it is an order of a Court. 6. IT is necessary, therefore, to examine, first, whether the enquiry held by the District Magistrate under Section 7 of the Act was held by it as an inferior criminal court. It has been authoritatively laid down by the Supreme Court in the (7) State of West Bengal v. Jugal Kishore More and another, AIR 1969 SC 1 . 6. IT is necessary, therefore, to examine, first, whether the enquiry held by the District Magistrate under Section 7 of the Act was held by it as an inferior criminal court. It has been authoritatively laid down by the Supreme Court in the (7) State of West Bengal v. Jugal Kishore More and another, AIR 1969 SC 1 . 171 in paragraph 6 at page 1175 :"extradition is a surrender by one State to another of a person desired to be dealt with for crimes of which he has been accused or convicted and which are justiciable in the courts of the other State. Surrender of a person within the State to another State whether a citizen or en alien is a political act done in pursuance of a Treaty or an arrangement ad hoc" it is, therefore, clear that extradition is not merely an executive act but a political act depending on the final decision of the Central Government. Moreover, this enquiry is by the District Magistrate, which in the present case, may more accurately be described as Deputy Commissioner for Darjeeling which is his official designation, at the order of the Central Government under the provisions of the Extradition Act and not under the provisions of the Criminal Procedure Code. This magistrate, moreover, after completing the enquiry if he finds that there is prima facie evidence in support of the requisition will submit a report under sub-section (4) of Section 7 of the Act for the consideration of the Central Government and it is for the Central Government to decide under Section 29 of the Act, not only on judicial consideration but on political and other considerations also, whether the fugitive criminal should be surrendered to the requisitioning State or not. It is, therefore, clear from the scheme of the Extradition Act itself that it was more or less a political and executive action, rather than judicial. It has, however, been urged by Mr. It is, therefore, clear from the scheme of the Extradition Act itself that it was more or less a political and executive action, rather than judicial. It has, however, been urged by Mr. Dibish Roy for the petitioner that though at the initial stage and up to the stage of issuing warrant under Section 6 of the Act, the Magistrate might be acting in his executive capacity, yet when enquiry is made under the provisions of Section 7 and particularly in view of the provisions of Section 7 (1) of the Act that the enquiry should be in the nature of enquiry for committal to a Sessions Court. It must be held that the enquiry held in the instant case was under the Code of Criminal Procedure and, as such, this Court has power to revise the order under Sections 435, 439 or Section 561a of the Code. But, it will appear that merely because a statute lays down a particular mode of procedure under which the enquiry is to. be made by reference to another Code it does not generally or necessarily follow that the Magistrate holding enquiry under the provisions of that Section was working as a court as contemplated in the Code of Criminal Procedure. Section 6 of the Code of Criminal Procedure lays down the courts recognised under the Code. The enquiry that was ordered to be held was not by any specified court but by the District Magistrate which, in the present case, may only mean a Deputy Commissioner for the District of Darjeeling. The expression. "deputy Commissioner" itself implies that his functions are more or less executive and not judicial. In this connection I may refer to the uniform decisions of this Court, though very old ones, which seem to lay down that under similar circumstances, the High Court should not interfere under the provisions of the Code of Criminal Procedure. First, I may refer to the cases of (10) Mohant Debdas. 15 CWN 735, (1) Rodolf Stallman v. King Emperor, 15 CWN 737 and again (11) Rudolf Stallman v. King Emperor, 15 CWN 1053. The last case was decided by a Bench of three Judges and the next case by this court is (3) Guli Shahu v. The Emperor, 19 CWN 221. 15 CWN 735, (1) Rodolf Stallman v. King Emperor, 15 CWN 737 and again (11) Rudolf Stallman v. King Emperor, 15 CWN 1053. The last case was decided by a Bench of three Judges and the next case by this court is (3) Guli Shahu v. The Emperor, 19 CWN 221. It will appear that in all these cases, the High Court refused to interfere in a proceeding under the Extradition Act of 1903, where the provisions were almost similar to those which have been provided in the Act of 1962. But, in all these cases, it was laid down that this Court has power to intervene in proper and suitable cases under Section 491 of the Code of Criminal Procedure as that power can be exercised by this Court not only for judicial acts but even for executive acts, when a person is illegally detained by whatever authority. In this connection I may also refer to some of the decisions in other High Courts, viz., (12) Thakur Sabdal Singh v. The District Magistrate, Dehradoon, 35 Cr. L. J. 1296 where it was laid down that when a Magistrate orders the execution of the extradition warrant, it cannot be said that he is acting in his judicial capacity or that he is for the time being a Court of inferior criminal jurisdiction and, as such, the High Court has no jurisdiction to interfere with the procedure on the Revisional Side. But Mr. Dibish Roy referred to some of the decisions of other High Courts. There is a direct decision of a Single Judge of the Madras High Court on this point in Re: (8) S. Reddiar 1962 (2) Cr. L. J. 697, where it was held that where an enquiry is made by a Magistrate whether a person has committed a prima facie extraditable offence is a criminal court within the meaning of Section 6 of the Code of Criminal Procedure and the orders are revisable under Section 439 of the said Code. L. J. 697, where it was held that where an enquiry is made by a Magistrate whether a person has committed a prima facie extraditable offence is a criminal court within the meaning of Section 6 of the Code of Criminal Procedure and the orders are revisable under Section 439 of the said Code. Apart from the fact that it is a decision of the Single Bench the main reason in support of the decision is that in Madras the functions of executive and judicial Magistrate were divided by Notification of the Government and not by a Statute and, as such, the division of the function of the Magistrate by Notification in respect of the Statutory power of Magistrate under the Code of Criminal Procedure is not legal and, as such, the so-called executive Magistrate, though enquiring under the Extradition Act, may be deemed to be judicial Magistrate and the High Court has power to interfere with the order passed. At any rate, I respectfully dissent from the view in that decision. The next case referred to is (19) Bai Aisha v. State of Bombay AIR 1929 Bom. 81 where execution by the District Magistrate in the British India of a warrant under Section 7 of the Extradition Act was held not to be an executive act as the Magistrate had judicially to consider the matter and decide whether the warrant can be executed according to law. But against this decision there is a direct decision of this Court in (3) Guli Shahu v. The Emperor 19 CWN 221 which was supported and followed by the Allahabad High Court in (12) Thakur Sabdal singh v. The District Magistrate, Dehradoon 35 Cr. L. J. 1296. Mr. Dibish Roy also referred to another decision of the Patna High Court (13) Hadi Bandhu Prodhan v. Emperor, reported in AIR 1946 Pat. 196. That was really a case under Section 491 of the Code of Criminal Procedure and the High Court observed that if Section 491 of the Code did not apply because the person arrested is on bail then the High Court can give relief either under Section 439 or Section 561a of the Code of Criminal Procedure. That case, therefore, was not directly a case for Revision under Section 439 or Section 561a of the Code. That case, therefore, was not directly a case for Revision under Section 439 or Section 561a of the Code. In this connection reference is also made to (2) Gulli Shahu v. King Emperor, 18 CWN 869, a decision of this Court where it was held that "section 15 of the Act (Extradition Act) ousts the jurisdiction of the High Court to enquire into the propriety of the warrant issued under Chapter III of the Act but where the order of the Magistrate is sought to be justified under the authority supposed to be derived from law but is in fact without jurisdiction not being sanctioned by it, it must be assumed that the Magistrate acted in his general jurisdiction and as such his order is revisable and is liable to be get aside at the instance of the party whose liberty is affected by it "this does not support the theory that the order made by the Magistrate under the provisions of Extradition Act is revisable by the High Court." As already decided by a bench of 3 Judges of this Court in 15 CWN 1053 referred to before in such circumstances Section 491 Cr. P. C. is clearly attracted. The limited purpose for which the High Court has been authorised to interfere has been specifically provided in Section 24/25 of the Extradition Act of 1962. By implication, other powers of the High Court under Criminal Procedure Code are excluded. In my view, therefore, when the District Magistrate makes an enquiry under Section 7 of the Extradition Act at the request of the Central Government, he cannot be held to be am inferior criminal court. The second ground for which the order of the District Magistrate in the present case cannot be held to be by a court is that the order is not final or definitive. There are numerous decisions of this Court as well as to the Supreme Court that one of the main characteristics of a court is that the order must be final and definitive one and must not await orders of some other body. On this consideration, the Industrial Tribunals and other Tribunals appointed under Enquiry of Commissions Act have been held to be not Courts. (14) Brajanandan v. Jyotiranjan AIR 1956 SC 66 and (15) Bharat Bank Limited v. Its Employees, AIR 1950 SC 188 . On this consideration, the Industrial Tribunals and other Tribunals appointed under Enquiry of Commissions Act have been held to be not Courts. (14) Brajanandan v. Jyotiranjan AIR 1956 SC 66 and (15) Bharat Bank Limited v. Its Employees, AIR 1950 SC 188 . Applying that standard in the present case, the report submitted by the District Magistrate under Section 7 (4) of the Act is not a final order and, as such, the report cannot be said to be submitted by a court. If, therefore, the District Magistrate acting under Section 7 (4) of the Act is not a Court, then also this Court has no power to intervene under Sections 435, 439 or under Section 561a of the Code of Criminal Procedure. 7. BUT, even though this Court may not have any power under the provisions of the Code of Criminal Procedure to revise the order of the District Magistrate made after an enquiry under the Extradition Act, the question remains whether the order can be challenged u/art. 227 of the Constitution. It has been held by a decision of this court (16) Haripada Dutta v. Anynta Mondal, AIR 1952, Cal. 528 that the word "tribunal" under Article 227 of the Constitution means a person or a body other than a Court set up by the State in deciding the rights between the contending parties in accordance with Rules having the force of law and doing so not of taking executive action but of determining a question. Judged by this standpoint, the District Magistrate though not an inferior criminal court, yet it was set up by the Executive Bodies to decide disputes between the parties in accordance with Rules having the force of law. Accordingly, the enquiry held by the District Magistrate was by a Tribunal within the meaning of Article 227 of the Constitution. If so, then this Court has power to intervene in terms of that Article. It was laid down in the case cited above that every High Court has power of superintendence over all judicial or quasi judicial bodies within its territorial limits in respect of both judicial and administrative matters. If so, then this Court has power to intervene in terms of that Article. It was laid down in the case cited above that every High Court has power of superintendence over all judicial or quasi judicial bodies within its territorial limits in respect of both judicial and administrative matters. But, then, it was laid down that only when a grave injustice has occurred or is likely to occur by reason of some mistake committed by the inferior judicial Or quasi-judicial body and the municipal law provides no adequate remedy, the High Courts are entitled to intervene under Article 227 and correct the mistake and provide appropriate relief In the instant case, as my Lord has found, there is no prima facie evidence in support of the requisition and, as such, there was no jurisdiction in the District Magistrate in detaining the petitioner for being sent to Sikkim under orders of the Central Government. True, this Court will not usually assess the evidence on facts under Article 227 of the Constitution, but when there is no admissible legal evidence in support of the allegation of murder against the petitioner this Court has power under Article 227 of the Constitution to declare that the relevant portion of the order passed by the District Magistrate was without jurisdiction or, at any rate, will lead to gross injustice if effect is given to that order. In that view of the matter, this Court has power to grant appropriate relief under Article 227 of the Constitution. 8. APART from Article 227 of the Constitution, under Article 21 of the Constitution, it is the duty of this Court to see whether the prisoner was detained in accordance with the procedure established by law. In this connection Section 491 of the Code of Criminal Procedure may also be considered. In either case, if, as has been found, there is no prima facie case in support of the requisition, there is no meaning in detaining the petitioner in custody for being sent to Sikkim under order of the Central Government. Accordingly, in my view, the order of the District Magistrate that "the fugitive criminal Hari Shankar who is already in jail custody will remain in jail custody to await the order of the Central Government" will lead to gross injustice and has to be set aside and the petitioner has to be released from custody forthwith.