(1.) The accused Vinayak Damodar Savarkar was committed to this Court by Mr. Montgomerie, First Class Magistrate of Nasik, for trial upon charges framed under Secs.121, 122 and 123 of the Indian Penal Code. At the commencement of the trial here the accused said that he would take no part in the trial but asked for an adjournment and for facilities to make to the British and to the French Governments representations regarding what he contended was his illegal arrest in Marseilles after he had escaped from the custody of police officers charged with the duty of bringing him from England to Bombay. His application was refused on the ground that it was beyond the province of this Court to do anything more than try him for the offences in respect of which he had been committed for trial. The trial then proceeded against him and other accused pointy charged with him. After certain witnesses had been (sic) mined Mr. Baptista, appearing for certain of the accused (sic) to put questions to one of the police witnesses regarding the escape and re-arrest of Vinayak at Marseilles with a view to show that the re-arrest was illegal and with the intention of contending thereon that the trial of Vinayak was without jurisdiction and that if so the trial could not proceed against the prisoners charged jointly with him. The Court upon this heard arguments as to what would be the effect on the trial of proof that the arrest was illegal.
(2.) The learned Advocate-General without admitting any of the allegations made regarding the re-arrest at Marseilles contended that the circumstances of Vinayak's re-arrest were irrelevant.
(3.) This contention is, in our opinion, correct. It appears that Mr. Montgomerie, a First Class Magistrate at Nasik, upon a complaint, duly authorized under Section 196 of the Criminal Procedure Code and sanctioned so far as it concerned offences committed out of India under Section 188, issued a warrant directing that Vinayak should be brought to Nasik from Bombay where he was expected to land on or about the 22 July, 1910 to be dealt with according to law. Vinayak arrived in Bombay as expected, having been sent out to India under the Fugitive Offenders Act by a Magistrate in London, and was taken to Nasik under Mr. Montgomerie's warrant. The charges against him were there investigated by Mr. Montgomerie under the procedure prescribed by the Criminal Law Amendment Act, 1908, and he was then committed for trial to this Court as already stated. For the purpose of argument we will assume that Vinayak escaped from custody at Marseilles and was re-arrested there by the British Police under circumstances not authorized by the warrant which they held, or by Section 66 of the Criminal Procedure Code, or Section 28 of the Fugitive Offenders Act.