MOONGA LAL, KEOT Vs. EMPEROR

JUDGEMENT

(1.) This is a proceeding under Section 491, Criminal P.C. The British Envoy at Nepal issued a warrant under Section 7, Extradition Act, of 1903 for the arrest and extradition of the petitioners for certain offences reported to have been committed in Nepal. The District Magistrate took the statements of the petitioners and reported the matter to the Local Government under Section 8-A of the Act, incorporating in his report the findings of the Subdivisional Magistrate of Supaul on an inquiry which he has conducted at an earlier stage when it was understood that these persons would be tried in British India under Section 188, Criminal P.C. The District Magistrate reported that the petitioners were residents of British India; but the Local Government after examining the records decided that there would be no justification for refusing extradition and directed that the petitioners should be made over to the Government of Nepal.

(2.) Mr. Sri Narain Sahay on behalf of the petitioners argues in the first place that the Local Government has no power to order extradition of British subjects to Nepal, and, secondly, that in any event the issue of a warrant under Section 7, Extradition Act, against British subjects is illegal, because in any reading of the Treaty with Nepal a discretion is retained as to whether a British subject shall or shall not be surrendered. He also argues that the procedure adopted is repugnant to the provisions of Art. 5 of the Treaty of 1855, which provides that neither Government shall be bound to surrender any person except the requisition duly made by the authority of the Government within whose territories the offence is charged to have been committed, and also upon such evidence of criminality, as according to the laws of the country in which the person accused shall be found, would justify his apprehension, and sustain the charge if the offence had been there committed. It is suggested that the provision in these articles that neither Government shall be bound to surrender should be read as meaning that neither Government shall in any circumstances surrender.

(3.) If the treaty with Nepal contained, as according to Mr. Sri Narain Sahay it does contain, an express prohibition against surrender of British subjects, it is possible that the protection of the High Court might be claimed for British subjects, as it was claimed and granted by the Queen's Bench in Wilson's case (1877) 3 QBD 42. In that case the Government of Switzerland had applied for the extradition of a British subject, which was prohibited by the Treaty; but it may be remarked that the terms of the Order in Council, which made the Extradition Act applicable to Switzerland, limited its application to cases governed by the Treaty. The Indian Extradition Act provides that nothing in the Act shall apply in derogation of treaty powers: but I doubt whether this provision can be properly treated by Municipal Courts as taking away from Government power given by the Act, merely because the power may have been previously limited by Treaty. There is a difference between the limitations imposed by Section 18, Extradition Act, on the one hand and an Order in Council on the other reciting the Treaty, and making the English Statute applicable only subject to the conditions of the Treaty.