HARIHAR CHATURBHAI PATEL Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner claims to be a British subject and a citizen of the United Kingdom. He also claims to hold a passport issued by Colony and Protectorate of Kenya in Africa under the British Crown.

(2.) In the year 1960 the petitioner was in Nairobi in Kenya. He left the continent of Africa from the port of Mombasa on January 31961 to come to India. It appears that after the petitioners departure from Kenya a criminal complaint was filed against the petitioner for an alleged offence under sec. 308 of the Penal Code in force in Kenya for obtaining between December 30 1960 and January 2 1961 goods by false presences from various merchants in Nairobi. These offences were alleged to have been committed within the jurisdiction of the Resident Magistrates Court at Nairobi. It is not necessary to go into the details of the allegations made against the petitioner in this writ application. It will be sufficient to state that the allegation was that the petitioner deposited 20 Shillings in the Standard Bank of South Africa Nairobiand obtained a cheque book from that Bank. Between December 30 1960 and January 2 1961 it is alleged that the petitioner visited various shops in Nairobi and obtained diverse goods of different descriptions from the shop-owners passing in their favour 16 different cheques. The goods which he the petitioner is thus alleged to have been obtained were of the value of 5123 Shillings. It is alleged that these cheques were not honoured. In these circumstances the complaint as mentioned above was filed against the petitioner in the Court of the Resident Magistrate at Nairobi.

(3.) After the petitioner reached India a requisition was made by the Government of kenya to the Union of India for the surrender of the petitioner on the ground that the petitioner was a fugitive criminal. A non-bailable warrant was issued as a result of this requisition. On August 24 1961 the petitioner was arrested. The Joint Civil Judge ( Junior Division ) and Judicial Magistrate First Class at Borsad was ordered to inquire into the matter. The learned Magistrate held an inquiry under section 9 read with sec. 3 of the Indian Extradition Act 1903 and section 207 of the Code of Criminal Procedure of India. At the inquiry before the learned Magistrate the charge against the petitioner was read over and explained to him. The petitioner made an oral statement in the Court. The petitioners defence was that he had no knowledge about the state of his account with the Standard Bank of South Africa that he expected moneys to arrive which he intended to deposit into the account but as moneys unfortunately did not arrive in time the cheques may have been dishonoured. He stated that he had instructed his relatives at Nairobi to make all payments to merchants at Nairobi but then he had no idea whether the payments were in fact made. He denied having committed any offence. The learned Magistrate raised the following two points for determination in the case:-- (1) Whether the Magistrates Court was competent to hold the inquiry under section 9 read with section 3 of the Indian Extradition Act ? (2) Whether a prima facie case was made out to support the requisition and whether the petitioner should be committed to stand his trial at the Resident Magistrates Court at Nairobi for an offence under section 308 of the Penal Code in force at Kenya ? After holding an inquiry and recording such evidence as was led before him the learned Magistrate came to the conclusion that both these points for determination should be answered in the affirmative. He accordingly committed the petitioner to prison under sec. 9 read with sec. 3(4) of the Indian Extradition Act to await the orders of the Central Government for his extradition to Kenya to stand his trial for an offence under sec. 308 of the Kenya Penal Code in the Resident Magistrates Court at Nairobi. This order was passed on August 28 1961 The petitioner was sent to prison and was subsequently on October 5 1961 released on bail by the learned Magistrate. The petitioner made various representations to the Central Government but with these representations we are not concerned for the determination of the point arising before us.