144-NLR-NLR-V-48-KANDASAMY-Petitioner-and-BANDARANAYAKE-Respondent.pdf
449
DIAS J.—Kandasamy v. Bandaranayake.
1947Present: Dias J.
KANDASAMY, Petitioner, and BANDARANAYAKE, Respondent.
Application in Revision 339—M. C. Point Pedro.
Fugitive Offenders Act, ss. 13,14—Application for surrender—Lawful
authority to issue warrant—Endorsement of foreign warrant—Indian law.
An accused was convicted by the Court of Sessions in India. Hepreferred an appeal against his conviction to the High Court whichaffirmed the conviction and sent the case back to the Court of Sessionsunder section 425 of the Indian Criminal Procedure Code so that theCourt of Sessions should give effect to the order of the High Court.The accused, however, absconded to Ceylon and was unlawfully at largein Ceylon before the expiry of his sentence.
Held, that a warrant for the surrender of the convict under Part IIof the Fugitive Offenders Act, 1881, should have been signed by a Judgeof the Court of Sessions and not by a Sub-Divisional Magistrate orAdditional District Magistrate. There being no proof that the Indianlaw authorised a Judge of Sessions to delegate his powers under sections92 and 425 of the Indian Criminal Procedure Code to the Sub-DivisionalMagistrate or Additional District Magistrate, the warrant for the arrestof the convict was not issued “by a person having lawful authorit>to issue the same ” within the meaning of section 14 of the FugitiveOffenders Act.
Held, further, that under section 13 of the Fugitive Offenders Act,before a Magistrate endorses the foreign warrant for execution in Ceylonhe should be satisfied that it was issued by a person having lawfulauthority to issue the same.
Indian Law is "foreign law” and cannot be judicially noticed by aCeylon Court.
A
PPLICATION in revision against an order of the Magistrate ofPoint Pedro.
H. V. Perera, K.C. (with, him H. W. Thambiah, H. Wanigdtunga andS. Mahadevan), for the petitioner.
H. Deheragoda, C.C., for the Attorney-General.
Cur. adv. vult.
August 26, 1947. Dias J.—
The petitioner was tried in the Court of Sessions, East TanjoreDivision, at Negapatam (a place within what was known as “ BritishIndia ”) for the offence of criminal intimidation under section 506 of theIndian Penal Code. After trial he was convicted and sentenced toundergo two years rigorous imprisonment and to pay a fine of Rs. 1,000,and in default to undergo 6 months rigorous imprisonment (see exhibitP 3). The petitioner then appealed to the High Court of Madras whichordered the Sessions Judge to admit the petitioner to bail pending thedetermination of the appeal.
The High Court affirmed the conviction but set aside the fine, but thesubstantive sentence of two years rigorous imprisonment was confirmed(see P 4).
The petitioner thereafter applied to the Privy Council for special leaveto appeal. This application was refused (see P 5 of October 25. 1945).
15
4S0DIAS J.—Kandasamy v. Bandamnayake.
It is alleged that the petitioner thereafter, without surrendering to theIndian Court and serving his sentence, is unlawfully at large in Ceylonbefore the expiry of his sentence.
An earlier abortive attempt by the Indian authorities to secure thesurrender of this petitioner is reported in 47 N. L. R. 470. This Courtthen held that the proceedings culminating in the order for the surrenderof the alleged fugitive were defective, and directed the petitioner to beforthwith discharged and freed from all restraint so far as those proceed-ings were concerned.
The Indian authorities thereupon started de novo. The warrantissued by the Indian Court is the exhibit P 1. That warrant bears thesignatures of the Sub-Divisional Magistrate of Negapatam and of theAdditional District Magistrate, Tan j ore District. Both these signatureshave been authenticated by the respective seals of the two Magistrates’Courts. There is also appended the affidavit of K. Marimuttu Pillai, theescort, to the effect that the Sub-Divisional Magistrate of Negapatamsigned and sealed the warrant in his presence.
Mariinuthu Pillai, who is a head constable of the Tanjore Police Force,brought this warrant and the connected papers to the Magistrate at PointPedro who thereupon under Part II of the Fugitive Offenders Act 18811endorsed the -warrant for execution to Sub-Inspector Rosairo of theCeylon Police and K. Marimuthu Pillai of the Tanjore Police and everyPolice Officer in Ceylon, for the arrest of the person named in the warrant.
Mr. H. V. Perera for the petitioner has taken objection to the summaryway in which the Point Pedro Magistrate endorsed the Indian warrant.Section 13 of the Fugitive Offenders Act provides the procedure to befollowed by the Ceylon Magistrate when such a warrant is producedbefore him for “ backing ” or endorsement. The relevant words ofsection 13 of the Act read as follows : —“ A Magistrate in the last-mentioned possession (i.c. in Ceylon) if satisfied that the warrant wasissued by a person haying lawful authority to issue the same, may endorsesuch warrant in manner provided by this Act, and the warrant so endorsedshall be sufficient authority to apprehend' within the jurisdiction of theendorsing Magistrate the person named in the warrant and bring himbefore the endorsing Magistrate or some otfier Magistrate in the samePossession ”. Mr. H. V. Perera contends that there is nothing on recordto show that before the Point Pedro Magistrate endorsed the warrant P 1he was “ satisfied ” that it was issued “ by a person having lawfulauthority to issue the same ”. It is unnecessary to consider this aspectof the matter further in view of what follows.
This petitioner was apprehended under the warrant P 1 and producedbefore the Point Pedro Magistrate. The proceedings culminating in theendorsement of the warrant were necessarily ex parte. When the allegedfugitive is arrested, the procedure to be followed thereafter is inter partesand is laid down by section 14 of the Act. That procedure can besummarised as follows : —
It is the duty of the person demanding the surrender of the prisonerto make out his case for the surrender of the fugitive. The onus is *
* 44 <t 45 Viet. e. 69.
DIAS J.—Kandasamy v. Bandaranayalee.
451
on him to prove that this is a proper case in which the surrender of the
person arrested should be granted. The points requiring proof are—
that the warrant was duly “ authenticated ” as directed by
the Act;
that it was issued by a person having lawful authority to issue .
the same ; and
that the Magistrate should be satisfied by evidence that the
prisoner then before the Court is the person named or other- •
wise described in the warrant.
Although under section 14 of the Act a Magistrate may, on proof of theforegoing, direct the surrender of the fugitive, yet under section 19of the Act the Magistrate (or the Supreme Court in the exercise of itsrevisional powers or on an application for a writ of habeas corpus)can go into the merits of the case in respect of which the surrender isdemanded.
Mr. Perera admits that the warrant has been authenticated, and he alsoadmits that the petitioner is the identical person named in the warrant.But he contends that there is a total absence of proof that the warrantP 1 was issued by a person having lawful authority to issue it within themeaning of section 14.
Considering the precision with which this Act has been drafted, and thesimple nature of the procedure provided, there should be no difficultyas to whether the warrant was issued by a person having lawful authorityto issue it. As I have pointed out before, when the Point Pedro Magis-trate endorsed the warrant, he ought to have satisfied himself on thatpoint, and normally, therefore, when the fugitive appeared before theCourt, proof of this fact should have been purely formal and snould havecreated no difficulty. On the other hand, if the three ingvedients ofproof under section 14 of the Act or any one of them are or is not estab-lished, the whole proceeding will be vitiated and the prisoner would beentitled to claim his discharge. It is, therefore, necessary to considerwhether the warrant P 1 was issued by a person having lawful authorityto issue the same.
One point at once strikes the eye. This petitioner was convicted bythe Court of Sessions at Negapatam. When the High Court of Madrasin its appellate jurisdiction, and the Privy Council affirmed the convictionone would normally expect it would be for a Judge of the Court of Sessionsat Negapatam to issue the extradition warrant. But P 1 has not beenissued by a Judge of the Court of Sessions at Negapatam, but by theSub-Divisional Magistrate and Additional District Magistrate of Nega-patam, and, therefore, Mr. H. V. Perera argues that these two officershave no authority to issue a warrant for and on behalf of the Judgeof the Court of Sessions at Negapatam. If we take a Ceylon analogy,once the Magistrate commits an accused to the District Court for trialhe is functus officio and loses seisin of the record. Thereafter the DistrictJudge will hold the trial and the accused, if convicted, will appeal to theSupreme Court. If the Supreme Court affirms the conviction, undersection 350 of the Criminal Procedure Code the Supreme Court willcertify its order under its seal to the District Court “ which shall there-upon make such orders as are conformable to the order so certified ”.
452
DIAS J.—Kandasamy v. Bandaranayake.
If the accused does not appear before the District Court to serve hissentence and is unlawfully at large in India, the extradition warrant will besigned, not by the committing Magistrate, but by the District Judge.
It is only he who is authorised either to issue a warrant for the arrest ofthe accused in Ceylon, or to issue a warrant under Part II of the FugitiveOffenders Act for his arrest in India.
Now Indian Law is “ foreign law ”. Although the Ceylon CriminalProcedure Code is based on the Indian Criminal Procedure Code, theJudges in Ceylon are not bound to take judicial notice of Indian Law.
It is a question of fact to be proved by the person demanding the sur-render of the fugitive. What the escort has done in this case is to producecopies of the Indian Penal Code and the Indian Criminal Procedure Codeanu, expect the Ceylon Courts to ascertain as best as they can what theIndian Procedure Code lays down in a case of this kind. Neither theresearches of Mr. H. V. Perera nor of the Crown Counsel have shown meany section or provision in the Indian Criminal Procedure Code whichauthorises a Sub-Divisional or Additional District Magistrate to issue awarrant for or on behalf of the Sessions Judge.
I have studied the provisions of the Indian Criminal Procedure Codein order to ascertain whether any power exists in a Sessions Judge todelegate to a District Magistrate or to a Sub-divisional Magistrate anyof his powers generally, or the special powers conferred on him undersection 425 of the Indian Code, when the High Court in its appellatejurisdiction returns the record of a case to the Sessions Judge who triedthe case to carry out the judgment of the High Court in appeal.
A “ Sessions Judge ” is defined by section 9 (1) of the Indian Code,a “ District Magistrate ” and an “ Additional District Magistrate ”by section 10. A “ Sub-Divisional Magistrate ” is defined by section13 (2).
Section 17 of the Indian Code subordinates these officers to certainhigher authority, but section 17 (5) provides that “ Neither DistrictMagistrates nor the Magistrates or Benches appointed or constitutedunder sections 12, 13, 14 and 15 shall be subordinate to the SessionsJudge except to the extent and in the manner hereinafter expressly provid-ed Chitaley and Rao in their commentary on the Indian Criminal Proce-dure Code (1946 edition) Vol. 1, page 289, say that “ express provision to thecontrary ” has been made by sections 123, 193, 195, 408, 435 and 436 ofthe Indian Criminal Procedure Code. I have studied these provisions,but they contain nothing relevant to the matter now under consideration.Sections 435 and 436 confer on a Sessions Judge the right to call for andrevise the proceedings of an inferior Court within his jurisdiction and tomake the requisite orders. The exercise of no such powers was calledfor in the case now under consideration.
Section 75 of the Indian Code deals with the issue of warrants of arrest.It is provided that every warrant of arrest issued by a Court under thisCode shall be in writing and signed by the presiding officer. Chitaley(Vol. I., pages 406-407) says:—“A warrant of arrest in order to bevalid must fulfil the following requirements : — (a) It must be in writing,(b) It must be signed by the presiding officer. A warrant which is notsigned by the authority issuing it is invalid, and any arrest made in
DIAS J.—Kandasamy v. Bandaranayake.453
execution of such warrant is illegal …. The signature must bethat of the presiding officer of the Court, and not that of any otherMagistrate ”.
Section 193 (1) of the Indian Code provides that “ except as otherwiseexpressly provided …. no Court of Sessions shall take cog-nizance of any offence as a court of original jurisdiction, unless the accusedhas been committed to it by a Magistrate duly empowered in that behalfSection 206 indicates what Magistrates commit cases for trial before theSessions Court. Section 218 indicates that once the case is committed,the committing Magistrate is functus officio. The procedure to befollowed at a trial in the Court of Sessions is provided for by section 268et seq. of the Indian Code.
Appeals from an Assistant Sessions Judge go to the Court of Session—Section 403 ; while appeals from a Sessions Judge or Additional SessionsJudge go to the High Court—section 410. When the appeal is disposedof by the High Court, the judgment or the order made is certified to “ theCourt by which the finding, sentence, or order appealed against wasrecorded and passed”—section 425 (1). The Court to which the HighCourt certifies its judgment or order “ shall thereupon make such ordersas are conformable to the judgment or order of the High Court ”—section 425 (2). There is no power or jurisdiction given to the Court oftrial to delegate the duty of the issue of a warrant for the arrest of anabsconding accused (e.g., under section 92 of the Indian Code) to thecommitting Magistrate or other subordinate officer.
Whether such power exists under the Indian Extradition Acts we donot, and cannot be expected to, know. It is for the person demandingthe surrender of the fugitive to make these things plain ’.
Mr. Perera rightly complains that an item of inadmissible evidencehas been allowed to be produced which must have prejudiced the mindof the Magistrate in these proceedings. This is the exhibit P 2. It is aletter written by the Additional District Magistrate, Tanjore, to theInspector-General of Police, Ceylon, and reads as follows:—“This is toinform you that the Sub-divisional Magistrate at Negapatam has issuedthe annexed warrant of arrest on S. A. Kandasamy on orders of theCourt of Sessions, East Tanjore, at Negapatam ”. In the first placethis document was produced by Mr. Dias Bandaranaike, Superintendentof Police, and not by the Inspector-General of Police. In the secondplace no authority is cited for the proposition that the Court of Sessionshas power, either under the Indian Law or under the Fugitive OffendersAct, to authorise a Magistrate to issue a warrant like P 1 on behalf ofthe Sessions Judge. Can a District Judge authorise a Magistrate to issuea warrant on behalf of the District Judge? I think the Magistrateerred in admitting P 2 as evidence. This is reflected in his judgmentin the following passage:—“P 2 is a document received by the A. S. P.in the course of his official duties. There it is stated that the Court ofSessions has directed the Sub-divisional Magistrate to issue the warrant.In the absence of any provision to the contrary I have to hold that the1 See do Mello's Law oj Extradition and Fugitive Offenders (1933 edition) p. 04.
454
DIAS J.—Kandasamy v. Bandaranayake.
person issuing the warrant had the authority to do so I think this is.fallacious reasoning and has prejudiced the petitioner. Section 14•of the Act provides that he must be satisfied inter alia that the warrantwas issued by a person having lawful authority to issue the same. Simplyl>ecause the Additional District Magistrate, Tan j ore, informed the Ins-pector-General of Police, Ceylon, that the Sub-divisional Magistrate atNegapatam issued the warrant P 1 on the orders of the Court of Sessions,East Tangore, it does not prove that this Magistrate was lawfullyauthorised to issue it.
Mr. Perera stresses two sections in the Indian Criminal ProcedureCode. Section 92 of that Code corresponds to our section 65. Section92 of the Indian Criminal Procedure Code provides that when “ any personwho is bound by any bond taken under this Code to appear before aCourt does not so appear, the officer presiding in such Court may issue awarrant directing that such person be arrested and produced before him ”.Suppose this petitioner instead of coming to Ceylon, did not surrenderto his bail in India, under section 92 of the Indian Code it is the Judgeof the Court of Sessions who would have to issue the warrant for hisarrest. The extradition warrant is only an extension of this principle. Ifthe Indian Law is that, in spite of section 92, some other officer could havelawfully issued the warrant referred to in that section, it is for the persondemanding the surrender of the accused to satisfy the Ceylon Courtson that point. I have not been able to find any such provision.
(C
The second section of the Indian Criminal Procedure Code relied onby Mr. Perera is section 425 which corresponds to our section 350.Section 425 provides that “ whenever a case is decided on appeal by theHigh Court …. it shall certify its judgment or order to theCourt by which the finding, sentence or order appealed against was recordedor passed …. The Court to which the High Court certifies itsjudgment or order shall thereupon make such orders as are conformableto the judgment or the order of the High Court ”. Delegatus non potestdelegare. Obviously, when the Court of Appeal certified to the Court ofSessions that the conviction of this petitioner was affirmed, it ,was for theSessions Court to make such orders so as to carry out the directions ofthe High Court.
therefore, regretfully come to the conclusion..that in terms of section14 of the Fugitive Offenders Act a case has not been made out for thesurrender of this fugitive. I say I come to this conclusion with regretbecause, once it is admitted that this petitioner is the convict referredto in the warrant and in the judgments of the Indian Courts, it is quiteclear that for a great many years he has been circumventing the processesof the law by being unlawfully at large before the expiry of his sentence ;but that is no reason for slurring over a defect in procedure of this kind.I, therefore, set aside the order for the surrender of this accused and directthat he be freed from further restraint so far as these proceedings areconcerned.
Order set aside.