HADIBANDHU PADHAN Vs. EMPEROR

JUDGEMENT

(1.) The petitioners have been arrested under warrants issued, in the case of four of them, by the Political Agent, Eastern States Agency, and in the case of the fifth by the Assistant Political Agent, Eastern States Agency. The warrants against the petitioners Hadibandhu Padhan, Pturna Chandra Padhan and Khetrabasi Behara alias Batu Padhan were issued on 19 April 1943, and required them to fee arrested and sent to the Court of the Special Judge at Talcher to answer a charge under Section 397, Indian Penal Code. The warrant against Ghasinath Behara was issued two days later, and required him to be produced in the same Court to answer the same charge. The warrant against the remaining petitioner, N.K. Murty, was issued on 18 October 1944, and required him to be produced in the Court of the Sub-Divisional Magistrate of Dhenkanal to answer a charge under Section 395, Indian Penal Code. The warrants were in each case addressed to the District Magistrate of Cuttack, and when the petitioners were arrested and brought before the learned District Magistrate they made certain statements.

(2.) In consequence of these statements the learned District Magistrate, quite properly, made a report to the Government of Orissa under Section 8A, Extradition Act. In due course the Government of Orissa considered this report and finally directed the learned District Magistrate to send the petitioners to Talcher and Dhenkanal respectively. The learned District Magistrate then called on the petitioners, who had in the meantime been enlarged on bail, to surrender. Instead, however, of surrendering, the petitioners made these applications which were admitted by a Division Bench consisting of Sinha and Das, JJ. I am inclined myself to think that the applications, when made, were clearly premature and that the Bench ought to have directed the petitioners to surrender to their bail and then to have had the applications moved. This point is not, kowever, one of any great importance as there is authority for the view that if this Court cannot, strictly speaking, act under Section 491, Criminal P.C., as the petitioners are not in custody it can act under Section 439 or Section 561-A: In re Bai Aisha A.I.R. 1929 Bom. 81.

(3.) Each of the warrants has been duly sealed and it is not denied that they were signed respectively by the Political Agent and the Assistant Political Agent to the Eastern States Agency. It is, however, contended that the warrant in pursuance of which the petitioner N.K. Murty was arrested was ex facie an invalid warrant as it is signed not by the Political Agent but by the Assistant Political Agent. The expression Political Agent in Section 7, Extradition Act, must, however, be construed in the light of Clause (40) of Section 3, General Clauses Act. That Clause states that Political Agent shall include...any officer appointed to exercise all or any of the powers of a Political Agent at any place not forming part of British India under the law for the time being in force relating to foreign jurisdiction.