A C TOPS Vs. EMPEROR

JUDGEMENT

(1.) This was a Rule granted by my learned brother and me upon the petition of Aloysius Christoffel Tops on the 4th of March this year and directed to the District Magistrate of the 24- Parganahs to show cause why the said Aloysius Christoffel Tops should not be discharged from custody on the grounds mentioned in the petition or why this Court should not grant him such other relief as to this Court might seem fit. It was further ordered that a copy of the Rule and of the petition should be served upon the Superintendent and Remembrancer of Legal Affairs of the Government of Bengal and also upon the Consul for the Netherlands at Calcutta.

(2.) It appears that on the 4th May 1917 a requisition was sent by the Cousul-General for the Netherlands to the Secretary to the Government of India, Foreign and Political Department, in these terms: "Acting upon instructions received from the Government of Netherlands, the East Indies, I have the honour to enclose herewith a legalised copy of a judgment of the Council of Justice at Batavia of 7th October 1916, No. 30B, by which Aloysius Christoffel Tops has been condemned to eight months imprisonment for theft and to request that the said Dutch subject, who was arrested sometime ago in Calcutta and is now on trial or undergoing punishment for the falsification of a cheque, may be extradited after the expiration of his imprisonment.

(3.) It appears that at that time the petitioner was undergoing a sentence of imprisonment in the Alipur Jail, he having been convicted at the High Court Sessions in February 1917 and sentenced to undergo one year s rigorous imprisonment. On the 9th December 1917, an application was made by Mr. Lodewyk Grommers, Consul for the Netherlands at Calcutta, for an immediate warrant of arrest against the said Aloysius Christoffel Tops. The application was based upon the allegations that Aloysius Christoffel Tops had been convicted in Batavia on the 7th October 1916 of theft, and sentenced to eight months imprisonment, and that he had absconded from that place before serving the said sentence. It appears that the petitioner Aloysius Christoffel Tops was about to be released from Jail on the next day, the 10th of December, and upon the application of Mr. Grommers the Magistrate made an order that a warrant should issue under Section 4 of Act XV of 1903, the Indian Extradition Act, and further ordered that the issue of the warrant should be reported to the Local Government under Sub- section (2) of Section 4. The warrant was in these terms: "Whereas Aloysius Christoffel Tops of the Central Jail, Alipur, stands charged with the offence of escaping from lawful custody at Batavia, Dutch East Indies, this is to authorise you to arrest the said Aloysius Christoffel and produce him before me." On the 10th of December, Tops was brought before the Magistrate who recorded that he admitted that he had been sentenced to eight months for theft and that he had not served out the term. That admission was withdrawn subsequently, namely, on the 2nd of January this year, and Aloysius Christoffel Tops, the petitioner, has told us that he was suffering from nervousness and that what he had said had been misinterpreted. However, on the 10th of December, the Magistrate directed that Aloysius Christoffel Tops should be detained in the Alipur Central Jail pending the orders of the Government. On that day, the 10th of December, the Secretary to the Government of India sent a direction to the Magistrate in these terms "Whereas a requisition has been made to the Government of India by the Government of the Netherlands, East Indies, for the suriender of Aloysius Christoffel Tops, a Dutch subject and a fugitive criminal who has been condemned to eight months imprisonment for theft in Batavia, the Government of India hereby direct you under and in pursuance of Section 3(1) of the Indian Extradiction Act (XV of 1903), to make such enquiries into the facts of the case and generally to take such steps as are authorised under the said Act, and to report the result of your enquiry as there indicated." Therefore, it appears that the proceedings were originated by the Magistrate issuing a warrant under Section 4 of the Act, but that after the direction from the Government of India, on the 10th December 1917, the proceedings were continued under Section 3 of the Act.