KAVANNA NAGUTHA MUHAMMAD NAINA MARIKAYAR Vs. MSAHMED MARAKAIR

JUDGEMENT

(1.) The facts so far as they are necessary for this petition are as follows. A complaint was filed before the Police Magistrate of Singapore against the petitioner before us on the 17 July, 1931, charging him with criminal misappropriation. The petitioner returned to British India about the middle of 1931. The Police Magistrate issued a warrant for the arrest of the petitioner to the District Superintendent of Police of South Arcot. The warrant was endorsed by the District Magistrate and the petitioner was arrested under the warrant and brought before the District Magistrate under Section 13 of the Fugitive Offenders Act. Mr. Boulton, the District Magistrate of South Arcot, was of opinion that he was not bound to comply with all applications for extradition. He thought his discretion in dealing with the matter was not limited to the particular circumstances mentioned in Section 19 and he therefore refused to order the extradition of the petitioner. There was an appeal to the High Court which came on before Wallace, J. No objection was taken before Wallace, J. that no appeal lay to the High Court on the ground that the order was under Section 14 and not under Section 19. Wallace, J. disagreed with Mr. Boulton. He thought that all the grounds on which a District Magistrate may refuse to order extradition are contained in Section 19 and he directed the District Magistrate to take fresh evidence before making final orders under Section 14 and dispose of the matter according to law. The new District Magistrate after further inquiry directed the extradition of the petitioner. There was an appeal to the High Court and the appeal was dismissed by our brother Burn, J. The present application is filed under Section 491 for the issue of a writ of Habeas Corpus. The matter accordingly comes before us.

(2.) Mr. Jayarama Aiyar, the learned Advocate who appeared for the petitioner, first contended that there is no appeal under the Fugitive Offenders Act against an order under Section 14 and that the judgment of Wallace, J. was therefore ultra vires and must be regarded as a nullity. I have already pointed out that the objection was not taken before Wallace, J. It is true that mere consent does not confer jurisdiction and in a case in which the matter is perfectly plain it may be that the order of a Court acting without jurisdiction must be regarded as a nullity. But the matter before us is not such a perfectly plain matter. Even conceding for the sake of argument that an order under Section 14 is a totally different order from one under Section 19 and that the operations of the two sections are exclusive, it is not very clear that the appellate jurisdiction of the High Court is excluded. It is possible to argue that the High Court as a superior criminal Court is competent to act either under Section 107 of the Charter Act or in some other way. But apart from this consideration it seems to me perfectly plain that the scheme of the Act shows that Secs.14 and 19 cannot be separated into two rigidly watertight compartments. Secs.14 to 18 of the Act enumerate the various instances where extradition warrants may be issued. Section 14 relates to the case of an accused; Section 15 relates to the case of a witness; Section 16 provides for a provisional warrant pending the arrival of the warrant issued by the magisterial authority in the first British possession; Section 17 relates to a case where the warrant has not been carried out for a month. Section 18 provides for the case where the prisoner after being returned was not prosecuted. Having enumerated these various cases of special powers under the Act, Section 19 deals with the discretion which the Magistrate in the second British possession has in cases where the return of the prisoner is sought or ordered under the Act. The case where the return is ordered obviously relates to the case of a later stage than Section 14 but the case where the return of the prisoner is sought relates to a case under Section 14 so that it looks as if one part of Section 19 and Section 14 overlap and Section 19 deals with the discretion which the Magistrate dealing with the matter under Section 14 has. So regarded, it cannot be said that an order under Section 14 refusing to return the prisoner is not an order under Section 19. It is true that Mr. Boulton on his interpretation of the sections thought that he was acting under Section 14 only and not exercising the discretion with reference to Section 19. But if his interpretation of the sections is not correct,--and on this matter I agree with Wallace, J.--every order under Section 14 relating to a prisoner whose return is sought is merely an order under Section 19 and in my opinion an appeal lay to the High Court.

(3.) The second point raised by Mr. Jayarama Aiyar is that, assuming an appeal lay, the High Court had no jurisdiction to order the taking of further evidence as the Act does not provide for the superior Court directing the taking of further evidence. Now the Act does not say anything about the powers which the appellate Court may exercise. It looks therefore as if the Act is not complete in itself; and one would therefore infer that what the superior Court should do is left by the Legislature to the law of the particular British possession relating to appeals. Obviously the appellate Court must do something and even if, as contended by the petitioner, the only power which the appellate Court has is to direct the return or to confirm the Lower Court's order, the fact that the appellate Court has passed an order of a slightly different kind does not make it an order without jurisdiction. We sometimes use the word "jurisdiction" loosely in such cases. A case of that kind must be regarded more as an irregular exercise of jurisdiction than as a case of a total lack of jurisdiction. Now, when a jurisdiction exists, however irregularly it may be exercised, the order cannot be regarded as a nullity. Here again it is necessary to point out that the matter was not brought to the notice of Wallace, J. at the time of delivering judgment nor was any objection taken before Burn, J. We are not sitting in appeal against the orders of Burn, J. or of Wallace, J. We are neither an appellate Court nor a revision Court and to attack the validity of the judgment of Wallace, J., and to contend that his order amounts to a nullity in a collateral proceeding of this kind, I do not think, is permissible. I make these remarks on the assumption that Wallace, J. had no power to direct the taking of further evidence. But even this is not really very clear. No authority has been cited before us to show that in general where a right of appeal is given but nothing more is said about the powers of the appellate Court, the appellate Court's powers are limited and the appellate Court cannot direct the taking of further evidence or direct further inquiry. The decisions in Rama Aiyar V/s. Venkatachella Padayachi (1907) I.L.R. 30 Mad. 311 : 17 M.L.J. 123 and Krishna Reddy V/s. Emperor (1909) I.L.R. 33 Mad. 90 : 20 M.L.J. 102 relate to the powers under Section 195, Criminal Procedure Code, and I do not think they are strictly relevant. They do not lay down any general principle. These cases are applied by Devadoss, J. to a case under Section 476 in Sami Vannia Nainar V/s. Penaswami Naidu (1927) I.L.R. 51 Mad. 603 : 55 M.L.J. 218. If this last mentioned case is to be regarded as correctly decided, it can only rest on the language of Section 476-B of the Code and I do not think it can be supported on the ground that a similar conclusion was arrived at in cases under Section 195, Criminal Procedure Code. But we find that the decision in Sami Vannia Nainar V/s. Penaswami Naidu (1927) I.L.R. 51 Mad. 603 : 55 M.L.J. 218 has not been followed by the Chief Justice, Bards-well and Burn, JJ. in a case recently decided in Janardana Rao V/s. Lakshmi Narasamma . In that case it was held that though Section 428 may not apply to an appeal against an order under Section 476 on account of the words "any appeal under this chapter", still the rest of Ch. XXXI is applicable and Clauses (c) and (d) of Section 423 are wide enough to enable the appellate Court to direct the taking of further evidence. They also rely on a decision of the Calcutta High Court in Muhammad Bayetulla v. Emperor (1931) I.L.R. 58 Cal. 402. Mr. Jayarama Aiyar contended that directing of further evidence is not a consequential or incidental order and he relied on Mehi Singh V/s. Mangal Khandiu (1911) I.L.R. 39 Cal. 157 (F.B.). I do not think this case helps him. There may be cases where the appellate Court, while feeling that the Lower Court's order is wrong, feels it is unable to dispose of the case one way or another and in such cases a direction for further inquiry may be a consequential or incidental order. I am therefore inclined to agree with the decision of the Full Bench. But the whole of this discussion merely shows that there is no such general principle as that an appellate Court has no inherent power to direct a further inquiry. The remarks of Lord Alverstone, C. J., in The King V/s. Governor of Brixton Prison, Ex parte Percival (1907) 1 K.B. 696 at p. 707: I have felt very grave doubt whether we ought not to send the case back to the magistrate so that he might allow further evidence to be given as to the law of Victoria or whether we might ourselves have required that evidence to be given to us.