Kavanna Nagutha Muha... v. M.S Ahmed Marakair P...

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 17th 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 Sections 14 and 19 cannot be separated into two rigidly watertight compartments. Sections 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. Venkatachella Padayachi (1907) I.L.R. 30 Mad. 311 : 17 M.L.J. 123 and Krishna Reddy v. 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. 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. 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. Lakshmi Narasamma (1933) 65 M.L.J. 873 (F.B.). 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. 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. 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.

4. And similar remarks of Darling, J. at p. 708:

Without doing that which, I am quite clear, we could do, viz., either send it back to the magistrate and point out to him the defect in the proceedings and allow him to have the prosecution reopened and evidence given or else require for our own information an affidavit showing what the law of Victoria applicable to this case is, confirm my opinion. I therefore think that the order of Wallace, J. is perfectly right and is not vitiated even by an irregularity, much less by want of jurisdiction.

5. The only other point suggested to us is that the warrant exhausted itself when the petitioner was first brought before Mr. Boulton. When he directed the return of the warrant the High Court stayed the operation of that order and stayed the return of the warrant to Singapore. But apart from that, when the order of Mr. Boulton was set aside, all that happened from the time his order was passed up to the time the case went back before Mr. Vellodi must be regarded as wiped out and nonexistent ; and when Mr. Vellodi came to a different conclusion the warrant has got to be executed. In my opinion there is nothing in this point.

6. The petition must therefore be dismissed.

Curgenven, J.

7. I agree with my learned brother that this application must fail. The question whether, when a person has been detained under an order of a High Court, an application of this nature will lie to a Bench of the same Court--amounting as it would virtually to an application to revise that order on the ground of lack of jurisdiction--has not been argued and is certainly not a self-evident proposition. But assuming this point to be found in the petitioner's favour, I agree that the order of Wallace, J. has not been shown to have been passed without jurisdiction. On the contrary, I think the learned Judge was right in holding that an appeal lay from Mr. Boulton's order refusing to order extradition. Section 14 of the Fugitive Offenders Act requires the Magistrate to satisfy himself that the warrant is in order and that the prisoner is the person named or described in it. If he is so satisfied then, so far as the provisions of that section go, he is to order his return to the British possession in which the warrant was issued. If he is not so satisfied, then no doubt it is open to him to refuse to make an order, and it may be that no appeal would lie from such refusal. The section contemplates only the matters of form adverted to in it, and not any question of the merits of the application, and in invoking its provisions as affording a means to support a decision upon the merits I think that the learned District Magistrate exercised a power which the section does not confer. Even if the section stood alone the mere use of the word "may" would not necessarily confer that power. But in Section 19, which must be read with it in order to possess ourselves of a full statement of the Magistrate's powers in dealing with a warrant, we find a specific enumeration of the circumstances in which, upon the merits of the case, an order of discharge may be made. It may be made if it appears that "by reason of the trivial nature of the case, or by reason of the application for the return of such prisoner not being made in good faith in the interests of justice or otherwise, it would, having regard to the distance, to the facilities of communication, and to all the circumstances of the case, be unjust or oppressive, or too severe a punishment, to return the prisoner either at all or until the expiration of a certain period." Now I think it is clear that, where the legislature has adopted the course of defining with some particularity the circumstances in which extradition may be refused, it is not open to a Court to hold that, merely because the instruction in Section 14 is permissive and not mandatory in form, it may ignore the terms of the later section and exercise a discretion not conferred by them. It would be still more objectionable if an order so passed were, as is contended before us, not to be subject to appeal, while an order passed on any of the grounds mentioned in Section 19 is appealable. I am inclined to think that the order of the District Magistrate, although ostensibly passed under Section 14, could in terms be brought under Section 19, because he holds that the case is not one where the interests of justice require the rendition of the accused person. But whether that be so or not, I am clear that Section 19 is the only provision which enables a Magistrate to adjudicate upon the merits of the application, and, that being so, Mr. Boulton's order must be taken as having been passed under that section. It was therefore appealable.

8. The only other point deserving consideration is whether, in disposing of the appeal, this Court was competent to remand the case for the reception of evidence. As my learned brother has pointed out, the Fugitive Offenders Act does not define the powers which an appellate Court may exercise in this behalf, and the only reasonable inference is that it may act in accordance with the normal procedure by which it is governed in the exercise of its appellate criminal jurisdiction. It is hardly to be expected that the language of the Criminal Procedure Code will be found adapted to a case of this nature verbatim et literim. It is enough, I think, to point out that, under the provisions of section 423(a) in an appeal from an acquittal an order may be made directing further inquiry, and (b) in an appeal from a conviction an order may be made directing a e-trial. The section further empowers the appellate (Court, in language markedly wide, to "make any amendment or any consequential or incidental order that may be just or proper". Furthermore, Section 428 empowers an appellate Court to order the reception of further evidence, either by itself or by another Court. In view of these provisions I think it lies somewhat heavily upon the party asserting it to establish that the normal powers of an appellate Court do not include the power to remand a case for further inquiry; and this is the more so because in cases such as the present it may happen that such a course alone would avail to reach a right conclusion. My learned brother has discussed the case-law relating to Sections 195 and 476 of the Code of Criminal Procedure. In view of the recent Full Bench decision in Janardana Rao v. Lakshmi Narasamma (1933) 65 M.L.J. 873 (F.B.), they do not help the petitioner. No other authority for the position pressed upon us has been cited. I conclude that the order of remand was passed with jurisdiction, and confers validity upon the subsequent orders passed in this case.

By Court.--The petitioner will present himself before the Police Magistrate of Singapore on or before 20th June.