Extradition and Foreign Jurisdiction (Criminal Courts)
EXTRADITION FROM BRITISH INDIA
1. Definition—Extradition means the surrender of a fugitive offender by one State to another in which the offender is liable to be punished or has been convicted. The law of extradition is based on the broad principle that it is in the interests of all nations that crimes recognised as such by the civilized world should not go unpunished.
2. Law applicable—The Indian Extradition Act, 1903, deals with the surrender of fugitive criminals to States outside the British Empire. The Fugitive Offenders Act, 1881, 44 and (45 Victs. 69) deals with the surrender of fugitive offenders as between British possessions.
3. Procedure for surrender of fugitives to Indian and Foreign States—The Indian Extradition Act, 1903, defines a “Foreign State” as a State to which the English Extradition Acts, 1870 and 1873 apply. These are certain foreign countries (mostly in Europe and America) with which the British Government has entered into extradition treaties and to which the English Extradition Acts have been applied by an Order-in-Council. The procedure for surrender of fugitive criminals to such “Foreign States” is laid down in Chapter II of the Indian Extradition Act (which has been declared a part of the English Extradition Act, 1870, by an Order-in-Council,— vide the appendix to this Chapter), while the procedure for surrender to States other than “Foreign States” is laid down in Chapter III of that Act. In the case of States other than “Foreign States” the procedure varies according as there is or is not an extradition treaty with the State concerned. If there is such a treaty, the procedure in Chapter III must be followed subject to the provisions of the treaty (vide Section 18). If there is no treaty, the procedure laid down in Chapter III will prevail. The Indian States come under the class of States dealt with in Chapter III and the procedure laid down in that chapter will therefore apply to them except in so far as it may have been modified or superseded by the provisions of a treaty (if any) with the State concerned.
4. Arrest and detention of “fugitive criminal” of Foreign States—In the case of “Foreign States” extradition of a “fugitive criminal” can be only obtained in respect of an “extradition crime,” i.e., a crime specified in the first schedule of the Extradition Act, 1870—(vide definition of a “fugitive criminal” in the English Extradition Act, 1870) and on a requisition by the State concerned. Section 4 enables Magistrates to arrest “fugitive criminals” within their jurisdiction in certain circumstances, but they are required to report the arrest at once to the Government and
are not empowered to take further action unless they receive an order from the Government for an inquiry under Section 3, sub-section (1). An order for inquiry under that sub-section can only be issued on a requisition from the State concerned. No person can be detained in custody for more than two months unless such an order is received from the Government, and the fugitive may apply to the High Court for his release, if detained longer without such order.
5. Procedure in case of fugitives from Indian States—In cases falling under Chapter III also, similar procedure is prescribed, but the requisition can be made in respect of a person accused of having committed any “offence” in the territories of the State concerned (vide Section 9). In the case of States for which there is a Political Agent* the requisition must be made through such an Agent.
Section 10 empowers Magistrates to arrest such persons found within their jurisdiction, in certain circumstances specified in the section, but here again the Magistrate must report their action to the Government or to the Political Agent, when there is such an Agent for the State concerned, and the person arrested cannot be detained in custody for more than two months without the sanction of the Government, unless an order for inquiry is issued under Section 9 or a warrant of arrest is issued by the Political Agent.
*Note—The expression “Political Agent” is not defined in the Indian Extradition Act. It is defined in the General Clauses Act, 1897, as follows :
“Political Agent” shall include—
(a) The principal officer representing the Crown in any territory or place beyond the limits of British India, and
(b) Any office appointed to exercise all or any of the powers of a Political Agent for any place not forming part of British India under the law for the time being in force relating to foreign jurisdiction and extradiction.
6. Warrant of arrest by Political Agents: Reference to Government and release of accused on bail—A warrant of arrest under Section 7 can be issued by a Political Agent only if the following conditions are fulfilled:
(i) The State for which the Political agent is appointed is not a “foreign state”.
(ii) The offence is an “extradiction offence,” i.e., an offence specified in the First Schedule of the Indian Extradition Act, 1870.
(iii) The person accused is not a European British subject (as defined in the Code of Criminal Procedure).
A warrant of arrest issued by a Political Agent under Section 7 is sufficient authority for the arrest of the offender and his surrender to the State according to the tenor of the warrant. The District Magistrate to whom the warrant is issued has no authority to question the legality of the
warrant or to make any inquiry (vide 7 I.L.R. Lahore, Page 159) but he is authorised to record the statement of the accused person and has the discretion under Section 8-A to make a reference to the Provincial Government in the matter if he thinks it fit to do so and in the meantime he can release the accused person on bail. The latter section can be properly resorted to when, for instance, the District Magistrate finds the warrant to be defective (e.g. on account of its having been issued against a European British subject or for a non-extradition offence, etc.) on there are other good reasons for not surrendering the accused person to the State.
The responsibility for the legality of a warrant issued under section 7 of the Extradition Act rests with the officer by whom it was issued, and the Magistrate to whom it is addressed is not required to make any inquiries. Hans Raj vs. The Crown, (1926) I.L.R. VII Lah. 159. (Giyan Chand vs. King-Emperor, 3 P. R. (Cr.) 1909 followed.)
Where therefore a warrant of arrest was issued against the petitioner at Gujranwala for an offence under section 420, Indian Penal Code, by the Political Agent in Indore State and sent to the District Magistrate at Gujranwala for execution, it was not the latter's duty to ascertain whether a prima facie case existed against the petitioner. Hans Raj vs. The Crown, (1926) I.L.R. VII Lah. 159.
7. Surrender of fugitives as between British possession—The surrender of fugitive offenders as between “British possessions” is governed by the Fugitive Offenders Act, 1881, read with Chapter IV of the Indian Extradition Act. By an Order-in-Council, Chapter IV has been recognised as a part of the Fugitive Offenders Act, 1881 (vide Appendix). That Act is divided into two parts and the procedure varies according as the British possessions concerned are grouped together or not for the purposes of the Act. The Procedure in Part II applies in the case of possessions which are grouped and is comparatively simpler.
Part B EXTRADITION TO BRITISH INDIA
1. When extradition from British possessions and other States is possible—Extradition of fugitive offenders who have fled from British India to other States is a matter governed by political and administrative considerations and not by legislation—except where the State to which the offender has fled is a British possession. In the latter case extradition is governed by the Fugitive Offenders Act, 1881. The offences committed in British India to which the Act applies are piracy, treason, and any offence punishable under the Indian Penal Code with rigorous imprisonment for a term of twelve months or more or with any greater punishment (vide Section 19 of the Indian Extradition Act, 1903).
2. Authority competent to issue summonses, warrants, etc.—With a view to ensure regularity of procedure in case where an offender has fled to a British possession it is directed that the powers of issuing and endorsing warrants and of issuing and endorsing summonses, and the powers generally conferred upon Magistrate by the Fugitive Offenders Act, 1881, should, as a rule be exercised, by the District Magistrate himself, or in cases of necessity, by only those subordinate Magistrates of the first class who are acquainted with English.
3. Procedure—Evidence should be taken that the person against whom the warrant is applied for has absconded; then evidence that an offence has been committed by such person should be faithfully and minutely recorded under Section 512 of the Code of Criminal Procedure. If upon
such evidence the Court issues a warrant, the warrant should be in the form prescribed by Section 75 and directed as required by Section 77. Evidence should be taken showing clearly that the offence charged is one to which the Fugitive Offenders Act applies, or at least a certificate from the Magistrate should be appended to the warrant, clearly showing that the offence charged is of that description. All the evidence should be taken, if possible, in the presence of the Police Officer to whom the warrant is addressed, and to whom it is desired that the fugitive offender should be delivered.
4. Procedure—A copy should be made of every deposition and every documentary exhibit : and each copy should contain a declaration, signed by the Magistrate as such, that it is a true copy of the deposition taken by himself or an exhibit produced to him, as the case may be. The whole of the copy of the record thus made should then be entrusted to the Police Officer to whom the warrant is addressed, who will be in a position authenticate every portion of it when produced by him in the possession in which the fugitive offender is.
5. Procedure where evidence is not taken in the presence of Police Officer entrusted with the execution of warrant—When the presence of the Police Officer, who is to execute the warrant, cannot be obtained at the proceedings referred to, then each copy must, before being entrusted to the Police Officer, be sealed with the seal of the Governor of the State in which the proceedings were held. Although when the documents can be authenticated by the oath of a witness in the possession from which it is desired to procure the delivery of the offender, the seal of the Governor is not essential, it is expedient that the seal should be affixed whenever it can be conveniently done.
6. Identifying accused—If the Police Officer entrusted with the execution of the warrant is unable to identify the accused he should be accompanied by some person able to identify the accused.
7. Approval of District Magistrate required when subordinate Magistrate taken action— The approval of the District Magistrates should be obtained by Subordinate Magistrates where action under the Fugitive Offenders Act, 1881, seems requisite; and ordinarily action should be taken only by the District Magistrate himself; if this is not feasible, then by a Magistrate who knows English.
8. Evidence as to nature of offence when offender is to be obtained from United Kingdom—
In all future applications for the removal of an offender from the United Kingdom under the Fugitive Offenders Act, 1881 (44 and 45 Vict, Chapter 69), it must be proved by evidence that the acts with which the accused is charged amount, under the law in force in the British possession from which the application for his rendition has been received, to an offence punishable by 12 months imprisonment with hard labour or some greater punishment.
9. Evidence of a person having legal knowledge is advisable—The most convenient method of complying with these instructions will be to arrange that all applications of the nature in question shall be accompanied by the deposition of a judge, advocate, barrister, solicitor or any official in a position from which the knowledge of the law may be presumed, duly authenticated in the
manner provided for by Section 29 of the Fugitive Offenders Act, and containing the necessary evidence. The course indicated above should ordinarily be followed in future.
10. Evidence as to other matters—A deposition should also be taken of the following facts from any person competent to prove them :
(1) The statute under which the charge is brought. (2) That such enactments is still in force.
(3) That the facts charged if established by evidence constitute the offence dealt with by such statute.
(4) That the offence dealt with in such statute is punishable in the territory by some punishment within the terms of Section 9 of the Fugitive Offenders Act, 1881.
11. Evidence of witnesses available in England may be suitable in some cases—Cases may occur in which the adoption of the above mentioned course would not be quite suitable. In such cases, since a point of Indian law may also be proved by oral evidence, arrangements can, if necessary, be made for the attendance of any competent witness who happens to be available in England at the time (e.g., judicial officers employed in India who are at home on leave, Advocates of the Indian High Courts, etc.) who would be able to furnish the necessary evidence.
12. Extradition from States outside British Empire—Extradition from States outside the British Empire is governed generally by treaties with the States concerned. In the case of the more important States such treaties exist.
13. Extradition from Indian States. Extradition from parts of India to which the Act does not extend—The most common class of cases occurring in British India are those where the offender escapes into an Indian Native State. For the procedure to be followed in cases where extradition is sought from Indian States (See Punjab Government Consolidated Circular No. 20).
JURISDICTION OF CRIMINAL COURTS IN REGARD TO OFFENCES COMMITTED BEYOND THE LIMITS OF BRITISH INDIA
1. Person liable to be tried—Section 188 of the Code of Criminal Procedure renders British subjects and servants of Crown liable to be tried in British India for offences committed beyond the limits of British India in certain cases.
2. Persons liable to be tried—When the act has been committed in British territory the nationality of the offender does not, of itself, prevent him from being subject to the law of India and the jurisdiction of its Courts, and the locality of the act is comparatively unimportant. But when the act has been committed beyond the limits of British India, it is necessary to ascertain whether the accused is or is not—
(i) a Native Indian subject of His Majesty, or (ii) a British subject or
(iii) a servant of the Crown.
The locality of the act varies in importance according as the accused falls under one or the other of the above categories.
3. Liability or Crown servants and aliens—A person, who is not a British subject, is ordinarily not bound by the law of India and is not subject to the jurisdiction of its Courts in respect of an act done by him outside British India. But an exception is created in the case of a servant of the Crown in respect of offences committed by him in the territories of any Native Prince or Chief. For such offences, a servant of the Crown, whether he is a British subject or not, is liable to be tried in British India. Whenever it appears to the Court that an alien is liable to its jurisdiction for an act done by him beyond the limits of British India the special provisions of the law which is held to give jurisdiction to the Court should be expressly stated.
4. Liability of Native Indian subjects—By Section 188 of the Code or Criminal Procedure a Native Indian subject of His Majesty is liable to be dealt with by the British Courts in India for any offence committed by him in any place whatever beyond the limits of British India as if it had been committed at any place in British India at which he may be found; and he is liable to be punished for it, if it is an offence under the Indian Penal Code, by Force of Section 3 of that Code.
5. Liability of other British subjects—Any other British subject and any servant of the Crown is, by force of the same section, similarly liable to be punished in India in respect of any offence committed by him in any place in the dominions of a Native Prince or Chief in India.
6. Trial permissible only on the certificate of Political Agent or sanction of Government— The proviso to Section 188 of the Code of Criminal Procedure requires that no charge as to any such offence as is referred to in that section shall be inquired into in British India, without a certificate of the Political Agent if there be one for the territory in which the offence is alleged to have been committed. If there is no Political Agent, the Sanction of the Provincial Government is necessary.
7. Even inquiry not permissible without certificate—The aforesaid proviso does not merely prohibit a trial upon a charge framed after an inquiry but even an inquiry into the accusation in the absence of a certificate, when requisite. The section itself, however, still leaves a Court competent to issue process, such as, a summons or a warrant or to take any other step which is merely preliminary to an inquiry.
8. Court should first record a finding where the offence has been committed—It follows from what has been said that it is the duty of every Court, dealing with an accusation of an act alleged to be an offence and to have been committed in a place near the limits of British territory,
to inquire and ascertain and record a clear finding as to whether it has been committed within or beyond those limits.
9. Court to record a finding about nationality of offender and insert it in charge—It is also the duty of every Court, dealing with an act alleged or found to have been committed beyond the limits of British India, to inquire and ascertain and record a clear finding as to whether the accused or is not a British subject, and if he is, whether he is a Native Indian subject of His Majesty. In every formal charge of an offence alleged to have been committed beyond the limits of British India, it should be explicitly stated either that the accused is not a British subject or if he is a British subject that he is a Native Indian subject of His Majesty or otherwise as the case may be.
10. Court to record a finding about nationality of offender and insert in charge—It seems expedient to add (1) that a Magistrate is not a liberty to shirk an inquiry into nationality of an accused person merely because it may appear to him a question of nicety or difficulty, and (2) that a Magistrate is not competent to dispense with the enforcement of the law and absolve a British subject from the penal consequences of an offence, prima facie established against him, merely because the offence was not committed within limits of British India. Both these mistakes were found to have been committed in 9 P.R. (Cr.) 1893.
11. Nationality of accused—In cases in which the question of nationality arises the rulings of the Chief Court 22 P.R. (Cr.) 1883,1.P.R. (Cr.) 1885, 9 P.R. (Cr.) 1893 may be consulted.
12. Special rule of Evidence—Section 189 contains a special rule of evidence for inquiries and trials under Section 188. The object is to render admissible evidence taken before Courts which are not Criminal Courts of British India, in order to supply evidence which might not be otherwise procurable.
Part D MISCELLANEOUS
1. Power of Police to arrest without warrant—It should be noted that Section 54(1) seventhly, of the Code of Criminal Procedure [Section 41 of new Code] authorises Police Officers to arrest, without an order from a Magistrate and without a warrant, persons liable under any law relating to extradition or under the Fugitive Offenders Act, 1881, to apprehension of detention in British India on account of offences committed at any place out of British India. Such persons may, under Section 23 of the Extradition Act, 1903 be detained under the orders of a Magistrate, within the local limits of whose jurisdiction the arrest was made, in the same manner and subject to the same restriction as a person arrested on a warrant issued by such Magistrate under Section 10.
1-A. States which have agreed to the procedure laid down as to the requisition of Police for fugitives—The following instructions have been issued by Provincial Government:
(1) All states in the Punjab State Agency. (2) All States in the Rajputana State Agency except the Jodhpur State. (3) The Kashmir State—It has been brought to the notice of the Punjab
Government that applications made by the Police of India States for the arrest of fugitive offenders from their territories under the provisions of the seventh clause of Section 54(1) of the Criminal Procedure Code [Section 41 of new Code] are sometimes accompanied by no details which would assist the Magistrate before whom the alleged offender is produced to decide whether he should be released on bail or not. The Magistrate is thus placed in an unsatisfactory position when extradition is delayed and it is necessary to grant remands under Section 344 of the Criminal Procedure Code [Section 309 of new Code]. This difficulty has been the subject of correspondence with the Indian States adjoining the Punjab, and those noted in the margin have finally agreed to adopt the following procedure in such cases on the understanding that the Punjab Police will adopt a similar procedure when they wish to secure the arrest of fugitive offenders in Indian States.
(i) Police may arrest on receipt of urgent communication—In all cases of emergency or hot pursuit the Police should arrest a fugitive offender upon receipt of any urgent communication whether telegraphic, telephonic or in any other form to the effect that he is required to be arrested for an offence committed in a Part B States, without further enquiry.
(ii) Urgent communication should be followed within a fortnight by particulars of the case and evidence against the offender—As soon as possible after an urgent communication has been made, particulars of the facts of the case and of the nature of the evidence against the wanted man should be forwarded to enable the Magistrate before whom he is produced to decide whether or not he should be released on bail. If these particulars are not furnished within a fortnight of the original urgent request, the Magistrates should ordinarily release the accused on bail.
(iii) Urgent communication should be followed within a fortnight by particulars of the case and evidence against the offender—It is not necessary that the information to be supplied by the officer applying for the arrest of the offender should be in any particular form, and it would suffice if as full precise of the evidence at his disposal as he can conveniently prepare, is forwarded.
(iv) Procedure in non-emergent cases—Except in an emergency, particulars should be sent alongwith the written request for the arrest of the fugitive offender. If such particulars are not forwarded offender, the police are under no obligation to make the arrest, and, if an arrest is made, the Magistrate should release the accused on bail, pending receipt of a warrant under Section 7 of the Indian Extradition Act, 1903.
(Punjab Government Letter No. 8817-P.G.-36/36663, dated the 25th November, 1936).
2. Surrender of criminal confined in British Jails—The provision of Section 40 of the Prisoners Act (III of 1900) do not apply to cases where a Court in an Indian States desires the extradition of a person confined in a jail in a Province of British India and accused by such Court of an extradition offence and consequently there is no necessity in cases of this nature for an application to the Provincial Government of the province in which the accused is confined. The Extradition Act itself provides for the surrender of criminals confined in British Jails as well as for the surrender of criminals who may be at large. A District Magistrate is, therefore, bound to
act in pursuance of a warrant under Section 7 of the Extradition Act, whether the accused is a prisoner in jail, or not without any instructions from the Provincial Government. As regards prisoners so dealt with, however, it is under Section 11 of the Act, a condition of surrender, that a criminal extradited shall be resurrendered on the termination of his trial for the offence for which his surrender has been asked.
Re Chapters of the Indian Extradition Act adopted as part of English Acts—The following Rules and Orders issued by the Central Government and Provincial Government, regarding the extradition of criminals and foreign jurisdiction are published for the guidance of the Courts.
I—Government of India Notification No. 1860-I-A., Dated the 13th May, 1904
The following Orders of His Majesty the King in Council, which were published in the London Gazette, dated the 8th March, 1904, are republished for general information:
At the Court at Buckingham Place, the 7th day of March, 1904. Present
The King’s Most Excellent Majesty in Council.
Whereas by Section 18 of the Extradition Act, 1870 it is, amongst other things, enacted that if by any law made after the passing of the said Act by the Legislature of any British Possession, provision is made for carrying into effect within such Possession the surrender of fugitive criminals who are in, or suspected to being in, such British Possession. His Majesty may be by the Order in Council applying the said Act in the case of any Foreign State, or by any subsequent Order, direct that such law or any part thereof shall have effect in such British Possession with or without modifications or alterations, as if it were part of the Act:
And whereas an Act, entitled “The Indian Extradition Act, 1903”, has been passed by the Governor-General of India in Council and it is expedient to declare that Chapter II of the Act shall have effect as if it were part of the Extradition Act, 1870:
Now, therefore, His Majesty, in pursuance of the Extradition Act, 1870, and in exercise of the power in that behalf in the said Act contained, both by this present Order, by and with the advice of His Privy Council, declare that Chapter II of the Indian Extradition Act, 1903, shall have effect in British India as if it were part of the Extradition Act, 1870.
And the Right Honorable St. John Brodrick one of His Majesty’s Principal Secretaries of State, is to give the necessary directions herein accordingly.
At the Court at Buckingham Palace, the 7th day of March 1904.
The King’s Most Excellent Majesty in Council.
Whereas Section 32 of the Fugitive Offenders Act, 1881, it is amongst other things, enacted that if the Legislature of a British Possession pass any Act or Ordinance : (1) for defining the offences committed in that Possession to which this Act or any part thereof is to apply; or (2) for determining the Court, Judge Magistrate, Officer or person by whom and the manner in which any jurisdiction or power under this Act is to be exercised; or (3) payment of the costs incurred in returning a fugitive or a prisoner or in sending him back if not prosecuted or if acquitted, or in otherwise in the execution of this Act; or (4) in any manner for the carrying of this Act or any part thereof into effect in that Possession, it shall be lawful for His Majesty by Order in Council to direct, if it seems to His Majesty in Council necessary or proper for carrying into effect the objects of this Act, that such Act or Ordinance or any part thereof, shall, with or without modification or alteration, be recognised and given effect to throughout His Majesty’s Dominions and on the high seas as if it were part of this Act:
And whereas an Act entitled “This Indian Extradition Act, 1903,” has been passed by the Governor-General of India in Council, and it is expedient to declare that Chapter IV of the Act shall have effect as if it were part of the Fugitive Offenders Act, 1881:
Now, therefore, His Majesty, in pursuance for the Fugitive Offenders Act, 1881, and in exercise of the power in that behalf in the said Act contained, doth by this present Order, by and with the advice of His Privy Council, declare that Chapter IV of the Indian Extradition Act, 1903, shall be recognised and given effect to throughout His Majesty’s Dominions and on the high seas as if it were part of the Fugitive Offenders Act, 1881.
And the Right Honourable St. John Brodrick one of His Majesty’s Principal Secretaries of State, is to give the necessary directions herein accordingly.
II—Government of India Notification No. 1861-I.A., Dated the 13th May, 1904.
Re date When the Act came into force—With reference to the notification of the Government of India in the Foreign Department, No. 1860-I.A., dated the 13th May, 1904, and in exercise of the power conferred by Section 1, sub-section (3) of the Indian Extradition Act, 1903, (XV of 1903, the Governor General in council is pleased to direct that the said Act shall come into force on the 1st day of June, 1904).
Ill—Government of India Notification No. 1862-I.A., Dated 13th May, 19041
Re Issue of warrant, trial of accused and execution of sentence—In exercise of the powers conferred by the Indian (Foreign Jurisdiction) Order in Council, 1902, and by Section 22 of the Indian Extradition Act, 1903 (XV of 1903) and in supersession of all previous rules on the same subject, the Governor-General in Council is pleased, with effect from the 1st day of June, 1904, to make the following rules, namely:
1. When political agent shall not issue a warrant—The Political Agent shall not issue a warrant under Section 7 of the Indian Extradition Act, 1903 (hereinafter referred to as “the said Act”), in any case which is provided for by Treaty, in the State concerned has expressly stated that it desired to abide by the procedure of the Treaty nor in any case in which a requisition for surrender has been made by or on behalf of the State under Section 9 of the said Act.
2. When he may issue a warrant—The Political Agent shall not issue a warrant under Section 7 of the said Act, except on a request preferred to him in writing, either by or by the authority of the person for the time being administering the Executive Government of the State for which he is a Political Agent or by any Court within such State which has been specified in this behalf by the Governor-General in Council or by the Governor of Madras or Bombay in Council as the case may be by notification in the official gazette.
3. Certificate when offender is a British subject—If the accused person is a British subject, the Political Agent shall, before issuing a warrant under Section 7 of the said Act, consider whether he ought not to certify the case as one suitable for trial in British India, and he shall, instead of issuing such a warrant, so certify the case, if he is satisfied that the interests of justice and the convenience of witnesses can be better served by the trial being held in British India.
4. Preliminary inquiry—The Political Agent shall, in all cases before issuing a warrant under Section 7 of the said Act, satisfy himself, by preliminary inquiry that there is a prima facie case against the accused person.
5. Political Agent to decide to whom offender to be delivered—(1) The Political Agent shall, before issuing a warrant under Section 7 of the Act, decide whether the warrant shall provide for the delivery of the accused persons.
(a) to the Political Agent or to a British officer subordinate to the Political Agent with a view to his trial by Political Agent, or
(b) to an authority of the State, with a view to his trial by the State Courts.
(2) Before coming to a decision the Political Agent shall take the following matters into consideration:
(i) the nature of the offence charged;
(ii) the delay and trouble involved in bringing the accused person before himself; (iii) the judicial qualifications of the Courts of the State;
(iv) whether he accused person is a British subject or not; and if he is a British (other than European British) subject, whether the Courts of the State, either, by custom or by recognition, try such British subjects surrendered to them; and
(v) whether the Courts of the State have by custom, or by recognition, power to inflict the punishment which may be inflicted under the Indian Penal Code for an offence similar to that with the accused is charged.
6. Political Agent to decide to whom offender to be delivered—Notwithstanding anything in Rule 5, the Political Agent shall make the warrant provide for the delivery of the accused persons to himself (or to an officer subordinate to himself), or to an authority of the State concerned, as the case may be, if he is generally or specially instructed by the Governor-General in Council to try an accused person himself or to make him over for trial to the proper Court of such State.
7. Duty of Political Agent to see that accused receives a fair trial—In the case of an accused person made over for trial to the Court of the State, the Political Agent shall satisfy himself that the accused received a fair trial, and, that the punishment inflicted on conviction is not excessive or barbarous ; and, if he is not so satisfied he shall demand the restoration of the prisoner to his custody, pending the orders of the Governor-General in Council.
8. Offenders arrested to be treated as persons under trial in British India—Accused persons arrested in British India on warrants issued under Section 7 or Section 9 of the said Act, shall be treated, as far as possible, in the same way as persons under trial in British India.
9. Execution of sentences and right of appeal—A person sentenced to imprisonment by a Political Agent shall, if a British subject, be conveyed to the most convenient prison under British administration, and shall there be dealt with as through he had been sentenced under the local law :
Provided always that this rule shall not be construed so as to give such person any right of appeal other than that allowed by the rules for the time being in force for regulating appeals from the decisions of the Political Agents.
10. Exceptions—Nothing in these rules shall be held to apply to areas in Indian State under British Jurisdiction, in which the Code of Criminal Procedure, 1898 (Act V of 1898), is enforce.
IV—Political Agents (a) Court of Vakils
The following extracts from the correspondence between the Agent to the Governor-General in Rajputana and the Government of India, which were forwarded to all Commissioners in the Punjab, for information with Punjab Government, Political Department, Circular No. 41-789, dated the 7th July, 1870, indicate under what circumstances the Court of Vakils of each Agency will be considered the Court of the Political Agent:
Extract from a letter from the Agent to the Governor-General in Rajputana, No. 49-J., dated the 12th April, 1870.
Paragraph 8—There is another subject connected with the Code which I submit for consideration. In Article III of the Treaties which have been lately negotiated with the States of
Rajputana for the extradition of offenders it is stated that, “as a general rule, such cases will be tried, by the Court of the Political Agent, in whom the political supervision of the State may be invested.” A case has arisen in which a political Agent desired the rendition of any offender this article of the Treaty for trial before the Court of the Vakils over which he presided. The Magistrate objected that this Court was nowhere alluded to by Government, or acknowledged in the Treaties.
Paragraph 9—It is obviously good policy to encourage and promote the action of these Courts. Their extension, indeed, in my opinion is the one hope that exists that the Native States will be able to maintain their separate jurisdiction in the midst of our Empire. A persual of the Code now submitted will, I think, convince His Excellency in Council that the measure of supervision exercised by British Officers is sufficient, to secure a rude justice adapted to the state of the country, and I believe it might safely be ruled that the Court of Vakil of each Agency should be considered the Court of the Political Agent as regards the Extradition Treaties in all cases where he presides personally.
Extract from letter to the Agent to the Governor-General in Rajputana, No. 87-J., under dated the 6th June, 1870.
Courts of Vakils, when the Political Officer presides in person, may in the opinion of the Governor-General in Council in this department, be considered to be Courts of the Political Officer referred to in Article III of the Extradition Treaties concluded with various States in Rajputana. The papers will be communicated to the Home Department of the Government of India, with a view to the necessary communications on the subject being made to the Local Administrations, on whose officers it is to be anticipated that demands for the surrender of offenders may be made under these Treaties.
Government of India, Foreign and Political Department, Notification No. 40-1., dated the 16th January, 1934.
In pursuance of Sub-clause (b) of Clause (40) of Section 3 of the General Clauses Act, 1897 (X of 1897) the Governor-General in Council is pleased to appoint the Secretary to the Honourable the Resident for the Punjab States, for the time being to exercise the powers of a Political Agent for the purposes of Sections 7 and 8 of the Indian Extradition Act, 1903 (XV of 1903), for the States included in the Punjab States Agency.
V—(a) Rules for the pursuit and arrest of offenders.
Government of India, Foreign and Political Department Notification No. 107-1, dated the 24th February 1932, as amended by Government of India, Foreign and Political Department Notification Nos. 427-1.B., dated the 18th July, 1935, 58-I.B., dated the 15th January, 1936, and 418-I.B., dated the 8th July, 1936.
In exercise of the powers conferred by Section 22 of the Indian Extradition Act, 1903 (XV of 1903) and in supersession of the notification of the Government of India in the Foreign and
No. 505-I, dated the 13th August, 1931, the Governor-General in Council is pleased to make the following rules to provide for the pursuit and arrest in British India of persons accused of offences committed elsewhere:
1. Pursuit and arrest by Police of Indian State—When a person accused of having committed in a State specified in the First Schedule hereto, an offence which, if committed in British India would be punishable under a section of the Indian Penal Code specified in the Second Schedule hereto, enters British India with members of the Police Force of that State in pursuit the pursuing party may subject to the provisions hereinafter contained, continue the pursuit into, and arrest the fugitive in, British India.
2. This authority is subject to conditions—The authorisation conferred by Rule (1) shall not be operative unless—
(a) The pursuing party includes at least one officer holding in the State Police force a rank not lower than the rank corresponding with that of a Head Constable of Police in British India, and
(b) The circumstances are such that an application for the continuance of the pursuit and the effecting of the arrest by the British Indian Police would prejudice the prospect of effecting the arrest of the fugitive.
3. Arrested person to be handed over to Police in British India—A person arrested by State Police under the authority of these rules shall forthwith be conveyed to the nearest place in which an officer of the British Indian Police is known to be and shall be handed over to the British Indian Police in that Place.
1. Hyderabad. 2. Mysore.
3. Kashmir. 4. Gwalior.
5. Sikkim. 5-A. Baroda. 6. Indore.
Part A—States Permanently Included in the Schedule
10. Maihar. 11. Orchha. 12. Datia.
13. Samthar. 14. Panna.
15. Charkhari. 16. Aligarh. 17. Bijawar. 18. Baoni.
20. Dewas Senior Branch. 21. Dewas Junior Branch. 22. Jaora.
26. Alwar. 27. Bikaner. 28. Bharatpur. 29. Dhopur. 30. Kotah.
32. Jodhpur. 33. Tonk.
37. Kapurthala. 38. Sirmoor. 39. Malerkotla. 40. Faridkot.
43. Nawanagar. 44. Bhavanagar 45. Porbandar.
46. Dharangadhra. 47. Palanpur.
States of Western India
59. Thana Deodi.
66. D. S. Vala Mulu Suraj of Jetpur.
67. D. S. Vala Rewat Ram of Bilkha.
71. M.S. Jorawarkhanji’s State Varahi.
72. Thana areas and the Civil Stations of Wadhwan and Rajkot in the Western-India States Agency.
73. Travancore 75. Cochin.
76. Savantuadi. 77. Jath.
78. Sauanur. 79. Cambay.
84. Miraj (Senior)
85. Miraj (Junior)
87. Kurundwad (Senior) 88. Kurundwad (Junior) 89. Ramdruz.
96. Bhar. 97. Raipipla.
98. Chhota Udepur. 99. Lunawada. 100. Saut.
102. Bhadarwa. 103. Senjeli.
104. Jambugheda. 105. Aunsh.
112. Administered areas comprised in the thana Circles and Sadar Bazzar. 113. Sankeda Mewas.
114. Pandu Mewas.
115. Cooch Behar. 116. Tripura.
117. Benares. 118. Tehri.
120. Athmallik. 121. Bamra.
122. Baramba. 123. Bastar.
126. Changbhakar. 127. Chhulkhadan. 128. Daspalla.
Eastern States Agency
129. Dhenkanal. 130. Gangpur. 131. Hindol. 132. Jashpur. 133. Kalahandi. 134. Kanker. 135. Kawardha. 136. Keonjhar. 137. Khairagarh. 138. Khandpara. 139. Kharsawan. 140. Korea.
141. Mayurbhanj. 142. Nandgaon. 143. Narsinghpur. 144. Nayagarh. 145. Nilgari.
146. Pal-Lahara. 147. Patna.
148. Raigarh. 149. Rairakhol. 150. Ranpur. 151. Sakti.
152. Sarangarh. 153. Seraikela.
154. Sonepur. 155. Surguja. 156. Talcher. 157. Tigiria. 158. Udaipur.
Part B—States, Included in the Schedule for the Period Terminating on the Date Specified against each
State Date of termination
Baria .............. .............. 1st June, 1940.
Ali Raipur .............. .............. 1st October, 1940.
List of Sections of the Indian Penal Code
Sections 300, 302, 303, 304, 307, 308, 311, 382, 392, 393, 394, 395, 396, 397, 398, 399, 400, 401 and 402.
(b) Rules for the Search and Seizure of Property.
Government of India Foreign and Political Department, Notification No. 36-I., dated the 20th July, 1925.
In exercise of the powers conferred by Section 22 of the India Extradition Act, 1903 (XV of 1903), the Governor-General in Court is pleased to make the following rule, namely:
(1) In any proceedings against any person under the provisions of the Indian Extradition Act, 1903, or of any treaty for the extradition of offenders, the Magistrate acting in such proceedings and any Police Officer authorised to arrest such person under the provisions of the said Act or of such treaty, may exercise in any place in British India in respect of any property in the possession of such person or any of the other person which appears to such Magistrate or police officer to have been the subject of or to be required for proof of the offence in respect of which the proceedings are being taken the powers respectively of a Court and of an officer in charge of a police station under the Code of Criminal Procedure, 1898, as if such property were the production of which is necessary for the purposes of any investigation or trial under the said Code, so Code by or before such Court or officer; and the provisions of the said far as they can be made applicable, shall apply to any summons or warrant issued in pursuance of this rule and
to any search made under the authority of any warrant so issued and to the disposal of any property seized in any such search.
(2) Such Magistrate may send such property to the State to which such person is surrendered and shall have, in respect of any such property produced before him in such proceedings or returned by the aforesaid State, all the powers of disposal vested in a Court under the Code of Criminal Procedure, 1898, in respect of any property produced before it during an enquiry or trial.
VI—Extradition offences within the Meaning of Indian Extradition Act
Government of India, Foreign and Political Department, Notification No. 1718-I. dated the 16th December, 1931.
(a) Offences under Criminal Tribes Act—In exercise of the powers conferred by the First Schedule to the Indian Extradition Act, 1903 (XV of 1903) and in supersession of the Notification of the Government of India in the Foreign and Political Department No. 4806-I.B., dated the 17th November, 1919, the Governor-General in Council is pleased to declare offences under the Criminal Tribes Act, 1924 (VI of 1924), to be Extradition offences within the meaning of the Indian Extradition Act, 1903 (XV of 1903).
Government of India, Foreign and Political Department, Notification No.-249-I., dated the 10th May, 1933.
(as amended up-to-date)2
(b) Desertion from Indian States Forces—No. 249-1.—In pursuance of the First Schedule to the Indian Extradition Act, 1903 (XV of 1903) and in supersession of the notification of the Government of India in the Foreign and Political Department No. 405-I., dated the 20th June, 1928, the Governor-General in Council is pleased to declare the following units of the Indian States Forces to the units desertion from which is an extradition offence:
￼Alirajpur Partap Infantry.
Alwar Mangal Lancers.
Alwar Jey Paltan.
Alwar Palton (Training Battalion).
His Highness the Nawab’s Bahawalpur Own Body Guard Lancers. 1st Bahawalpur Sadiq Infantry.
2nd Bahawalpur Haroon Infantry.
Baria Subhag Risala. Baria Ranjit Infantry.
Second Baroda Infantry.
First Benares (Prabhu Narain’s Own) Infantry. Second Benares Cavalry Troop.
Bharatpur Jaswant Household Infantry. Bharatpur Jaswant Garrison Company. Bharatpur Body Guard.
Bhavnagar Lancers. Bhavnagar Infantry.
Bhopal Sultania Infantry Battalion.
Bhopal Gohar-i-Taj. Own Training Company.
Bikaner Ganga Risala.
Bikaner Sadul Light Infantry.
Bikaner Dungar Lancers.
Bikaner Bijey Battery.
Bikaner Motor Machine Gun Sections.
Chamba Infantry. Chamba Body Guard.
Cutch State Infantry. Cutch State Body Guard.
Datia Gobind Infantry.
Datia Gobind Infantry. “B” Company.
Dhar Light Horse (Maharaj Kumari Kamla Raja’s Own). Dhar Infantry (Maharaja Anand Rao’s Own Laxmi Guards).
Dhrangadhra Makhwan Infantry. Dhrangadhra Body Guard.
Dholpur Narsingh Infantry.
Faridkot Sappers. Faridkot Body Guard. Faridkot State Infantry.
Gwalior 1st Jayaji Lancers.
Gwalior 2nd Alijah Lancers.
Gwalior 3rd Maharaja Madho Rao Scindia’s Own Lancers. Gwalior “B” Battery, Scindia’s Horse Artillery (15 Pounder).
Gwalior Mountain Battery.
Gwalior Transport Corps.
Gwalior 1 st Maharani Sakhya Raja’s Own Infantry.
Gwalior 2nd Maharaja Jayaji Rao’s Infantry.
Gwalior 3rd Maharaja Scindia’s Own Infantry.
Gwalior 4th Maharaja Bahadur Infantry.
Gwalior 7th Scindia’s Training Battalion.
Hyderabad 1st Imperial Service Lancers. Hyderabad 2nd Imperial Service Lancers. Hyderabad Cavalry Training Squadron. Hyderabad 3rd Golcanda Lancers.
1st Battalion Hyderabad Infantry.
2nd Battalion Hyderabad Infantry.
3rd Battalion (No. 0) Hyderabad Infantry. Hyderabad Infantry Training Company. “A” Battery Nizam’s Horse Artillery. Hyderabad Animal Transport Section.
Idar Sir Partab Infantry.
Holkar’s Mounted Escort.
Holkar’s Transport Corps.
1st Battalion Maharaja Holkar’s Infantry.
Jaipur State Transport Corps. Jaipur Lancers.
1st Jaipur Infantry.
2nd Jaipur Infantry.
Jaipur Sawai Man Guards.
Jind Body Guard.
Jind (2nd Line) Infantry.
Jodhpur Sardar Risala. Jodhpur Sardar Infantry.
Junagadh Mahaba Khanji Infantry.
Kapurthala Jagatjit Infantry. Kapurthala Body Guard. Kapurthala Paramjit Infantry.
1st Jammu and Kashmir Mountain Battery. 2nd Jammu and Kashmir Mountain Battery. 1st Jammu and Kashmir Infantry.
2nd Jammu and Kashmir Rifles.
3rd Jammu and Kashmir Rifles.
4th Jammu and Kashmir Infantry.
5th Jammu and Kashmir Light Infantry Battalion. 6th Jammu and Kashmir Infantry.
7th Jammu and Kashmir Infantry.
Jammu and Kashmir Training Battalion.
Jammu and Kashmir Army Training School. Jammu and Kashmir Body Guard Cavalry. Jammu and Kashmir Military Transport.
Kotah 1st Umed Infantry.
Loharu State Infantry.
Loharu State Camel Transport.
Malerkotla Lancers (Body Guard). Malerkotla Infantry.
Mandi Joginder Sappers and Miners. Mandi Palace Guard.
Mewar Bhupal Infantry.
Mewar Bhupal Training Company.
Mewar Sajjan Infantry.
1st Battalion Mysore Infantry.
2nd Battalion Mysore Infantry (Training Company). 3rd Battalion Mysore Infantry.
Nabha Akal Infantry.
Nawanagar Shatrushalya Infantry.
Palanpur Iqbal Infantry. Panna Chhatrasal Infantry.
1st Patiala Rajindra Lancers.
2nd Patiala Lancers.
1st Patiala Infantry (Rajindra Sikhs). 2nd Patiala Infantry.
3rd Patiala Infantry.
4th Patiala Infantry.
The Patiala Transport Train.
Porbandar Body Guard.
Palanpur Panna Patiala
Rajpipla Infantry. Rajpipla Body Guard.
Rampur Rohilla Lancers.
1st Rampur Raza Infantry. 2nd Rampur Murtaza Infantry.
Ratlam Lokendra Rifles.
Rewa Transport Corps. Rewa Venkot Battalion.
Sirmoor Sappers. Sirmoor Body Guard.
Suket Lakshman Cavalry. Suket Lakshman Infantry.
Tehri-Garhwal Narendra Pioneers. Tehri-Garhwal Infantry. Tehri-Garhwal Sappers and Miners.
1st Tripura Bir Company. 2nd Tripura Bikram Infantry.
(c) From the Deputy Secretary to the Government of India in the Foreign and Political Department, to the Chief Secretary to the Government of Madras
to the Chief Commissioner, Delhi,—No. F. 247-1 B./35, dated Simla, the 24th July, 1936.
Subject—Conclusion of Reciprocal Arrangements with Indian States for the Extradition of persons concerned with the Traffic in Dangerous Drugs.
I am directed on to forward for your information a copy of the Foreign and Political Department Letter No. F-160-I/31, dated the 12th June, 1935, and to say that the reciprocal arrangements concluded with Indian States for the extradition of persons concerned in offences connected with the traffic in dangerous drugs are to be confined to offences under the Indian Opium Act, 1878, the Dangerous Drugs Act, 1930 (excepting Sections 9 and 19) and the Excise and Abkari Acts of Local Governments, in so far as they relate to Indian hemps. So far as Indian States are concerned the arrangement will be applicable to offences under the Excise Law or Laws of the State. The proposed arrangements will only be between the Government of India and the State concerned and separate extradition agreements will have to be concluded between the various Indian States, if so desired.
2. I am also to add that the Government of India do not propose to issue a notification as extradition in such cases should be effected in accordance with the procedure provided by Section 9 of the Indian Extradition Act, 1903.
From the Secretary to His Excellency the Crown Representative,
to . . . . . . . . . . . . . . . . . . the Honourable the Resident for the Punjab States,— No. F. 187-I. B/38, dated New Delhi, the 10th March, 1939.
Subject—Conclusion of Reciprocal Arrangements with Indian States for the Extradition of persons concerned with the Traffic in Dangerous Drugs.
In continuation of the endorsement from the late Foreign and Political Department No. F. 247- I.B./35, dated the 24th July, 1936, I am directed to forward herewith, for information, a “Statement” containing the names of the Indian States with which reciprocal arrangements have been concluded by the Government of India or the extradition of persons concerned in offences connected with the traffic in dangerous drugs.
￼Name of Agency Name of State or Estate
Mysore Banganapalle, Mysore and Sandur.
Central India Bhopal, Bijawar, Chhatarpur, Dewas (Junior), Dewas (Senior), Datia, Dhar, Indore, Jaora, Kaurwai, Maihar, Makrai, Mohammadgarh, Nagod, Orchha, Panna, Pathari, Piploda,
Ratlam, Sailana, Sitamau.
Rajputana Bharatpur, Bikaner, Bundi, Jaipur, Jhalawar, Jodhpur, Karauli, Kishengarh, Kotah, Shahpura, and Tonk, Udaipur (Mewar)
Western India States Ambaliara, Ghodasar, Idar, Katosan, Khadal Mohanpur, Malpur, Ranasan, and the Thana, Circles of (1) Bawishi, (2) Katosan, (3) Gadhwada, (4) Sabar Kantha, (5) Vatrak
Kantha Thana, Sadar Bazar (Administered Area).
Punjab State Bahawalpur, Chamba, Dujana, Faridkot, Jind, Kapurthala, Khairpur, Loharu, Melerkotla, Mandi, Nabha, Pataudi, Patiala, Suket, Baghal, Baghat, Bashahr, Bhajji, Bija, Bilaspur,
Darkoti, Delath, Dhami, Dhadi, Ghund, Jubbal, Kalsia, Keonthal, Khuneti, Koti, Kumharsain, Kunihar, Kuthar, Madhan, Mahlog, Mangal Nalagarh, Ratesh, Rawingarh, Sangri, Sirmur, Tehri, Tharoch, and Theog.
Baroda and Gujarat State Balasinor, Bansda, Baria, Bhadarwa, Cambay, Chhota Udepur, Dharampur, Jawahar, Kadana, Lunawada, Pandu, Mewas, Rajpipla, Sanjeli, Sant, Sachin, Sankheda
Mewas, Surgana and Umeta.
Gwalior Benares, Gwalior and Rampur.
Madras States Cochin, Pudukkottai and Travancore.
Kolhapur and Deccan Akalkot, Aundh, Bhor, Jamkandi, Janjira, Jath, Kolhapur, Kurundwad (Junior), Kurundwad (Senior), Miraj (Junior), Miraj (Senior), Mudhol, Phaltan, Ramdurg, Sangli,
Savanur, and Sawantwadi. Eastern States All States in the Eastern States Agency.
(d) Government of India Notification No. 920-I-B., dated the 1st April 1920.
Offences under Section 498, Indian Penal Code—In exercise of the powers conferred by the First Schedule of the Indian Extradition Act, 1903 (XV of 1903), the Governor-General in Council is pleased to declare the offence of enticing or taking away or detaining with criminal intent a married woman, as defined in Section 498 of the Indian Penal Code, to be and extradition offence within the meaning of the Indian Extradition Act, 1903, in the case of the Bikaner State.
(e) Offence under Section 498 of the Indian Penal Code has also been declared to be an extradition offence in Khairpur State by Government of India (Foreign Department) Notification No. 3321-I.A., dated the 16th August, 1905.
(f) Reciprocal arrangements have been concluded—
(a) between the Punjab Government and Mandi State for the extradition of persons accused of offences under Section 498, Indian Penal Code,—vide Punjab Government Letter No. 19208- Pol.—I/S., dated the 12th June, 1930.
(b) between the Punjab Government and Faridkot State for the extradition of persons accused of offences, under Section 494 to 498, Indian Penal Code,—vide Punjab Government Letter No. 236-PoL, dated the 30th March, 1914.
(c) between Bahawalpur State and Dera Ghazi Khan district for the extradition of persons accused of offences under Section 498, Indian Penal Code.
VII—Delegation of powers to the State Government
Government of India, External Affairs Department Notification No. 67-X., dated the 1st April, 1938.
In exercise of the powers conferred by sub-section (1) of Section 124 of the Government of India Act, 1935,4 the Central Government is pleased, with effect from the 1st April, 1938, to entrust to all State Governments with their consent the functions of the Central Government under sub- sections (1), (4), (6), (7) and (
of Section 3, sub-section (1) and (2) of Section 4, Section 5, Section 8-A. Section 9, sub-section (1), (2) and (3) of Section 10, Section 11, Section 15, clause (c) of Section 19 and Section 20 of the Indian Extradition Act, 1903 (XV of 1903).
1. As amended by No. 2542-B, dated the 26th January, 1912. As amended by No. 3472-IC., dated the 28th August, 1908. As amended by No. 823-D., dated the 25th March, 1913.
2. Amended by the following Notifications: No. 467-I., dated the 16th August, 1933. No. 674- I., dated the 21st December, 1933. No. 59- I., dated the 7th February, 1934. No. 77- I., dated the 20th February, 1934. No. 148- I.., dated the 11th April, 1934. No. 202- I., dated the 15th May, 1934.
No. 445- I., dated the 19th September, 1934. No. 517- I., B., dated the 25th October, 1934. No. 669- I., B., dated the 12th December, 1934. No. 32- I., B., dated the 3rd January, 1935.
No. 125- I., B., dated the 19th February, 1935. No. 89- I., B., dated the 30th January, 1935. No. 384- I., B., dated the 19th June, 1935.
No. 517-I., A., dated the l8th September, 1935. No. 622- I., A., dated the 14th November, 1935. No. 153-I., A., dated the 11th March, 1936.
No. 375/37-Judl., dated the 23rd December, 1937. No. 106/37-Judl., dated the 18th May, 1939.
No. 47/39-Judl., dated the 21st October, 1939.
No. 47/1/39-Judl., dated the 15th November, 1939.
3. Added by Crown Representative’s letter No. 154-I.B./39, dated the 13th June, 1939.
4. Section 124(1) of the Government of India Act, 1935, corresponds to Article 258(1) of the Constitution of India.