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Citation Codes
Equivalent Citations
citation codes
Case Number
Judges
  • Russell
  • Aston, JJ.
Acts
  • s. 54, cl. 7, of the Code of Criminal Procedure (Act V of 1898) and first Schedule of the Indian Extradition Act XV of 1903,
  • provision of the Indian Extradition Act, that this Act
  • s. 7 (1) of the Indian Extradition Act
  • s. 7 of the Indian Extra'ditidn Act.
  • s. 22 of the Indian Extradition Act
  • s. 7 of,.the Indian Extradition Act
  • s. 15 of the Extradition Act
  • Rule 4 of these Rules
  • Offenders Act, 1881,
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Judges
  • Russell
  • Aston, JJ.
Acts
  • s. 54, cl. 7, of the Code of Criminal Procedure (Act V of 1898) and first Schedule of the Indian Extradition Act XV of 1903,
  • provision of the Indian Extradition Act, that this Act
  • s. 7 (1) of the Indian Extradition Act
  • s. 7 of the Indian Extra'ditidn Act.
  • s. 22 of the Indian Extradition Act
  • s. 7 of,.the Indian Extradition Act
  • s. 15 of the Extradition Act
  • Rule 4 of these Rules
  • Offenders Act, 1881,
See more information ...
Smart Summary

Judgment Summary — Russell, J. & Aston, J. (1905)

Factual and Procedural Background

The petition was filed on 25 February 1905 by three persons named Huseinally alias Saidu, Habib Jiva and Karim Jiva alias Taitu. The petition alleged that the three accused had been kept in custody for nearly two months without warrants and without any inquiry. Initially, the High Court (by a rule) ordered that the accused should not be surrendered to the Cambay authorities until further order. Subsequent material disclosed that warrants for arrest had in fact been issued by the Political Agent of Cambay on 8 February 1905, and that inquiries had been conducted by the Ahmedabad District Police and by two Magistrates of Ahmedabad. The Political Agent issued a warrant under s. 7 (1) of the Indian Extradition Act (XV of 1903), addressed to the District Magistrate of Ahmedabad, directing arrest and delivery of the petitioners to the Cambay authorities. Applications were made to the District Magistrate and the Sessions Judge of Ahmedabad seeking to restrain surrender pending a British court inquiry; the Sessions Judge cancelled an interim order and refused relief. The present application to the High Court repeated the request that the accused not be surrendered until a competent British Court inquired into the truth of the accusations.

Legal Issues Presented

  1. Whether the High Court had jurisdiction to order that the petitioners should not be surrendered to the Cambay authorities until a British Court conducted an inquiry into the truth of the accusations.
  2. Whether the arrest of the accused without a warrant was lawful under s. 54(7) of the Criminal Procedure Code (Act V of 1898) and the Indian Extradition Act XV of 1903.
  3. Whether the Political Agent was required, under the Rules made under the Indian Extradition Act (specifically Rule 4), to personally hold the preliminary inquiry leading to a prima facie case before issuing a warrant, or whether he could rely on inquiries conducted by police or other Magistrates.
  4. Whether the remedy for challenging the validity of a warrant issued under Chapter III of the Indian Extradition Act is vested exclusively in the Government of India or the Local Government under s. 15 of the Act, thereby ousting the High Court's jurisdiction.

Arguments of the Parties

Petitioners' (Accused) Arguments

  • The petitioners sought an order that they not be surrendered to the Cambay authorities unless and until a competent British Court conducted an inquiry into the truth of the accusations (i.e., a Magisterial inquiry in British India).
  • It was alleged (without foundation in the application itself, according to the record) that the Political Agent had acted on bare suspicion when he issued his warrant under the Extradition Act.
  • Counsel for the petitioners (Mr. Davar) argued that the High Court could order the District Magistrate to "hold his hand" until the warrant was shown to be legal, and further contended that the Political Agent had not followed the Rules under the Act (notably Rule 4) and should have personally conducted the investigation resulting in a prima facie case.
  • Because the petitioners claimed to be British subjects, counsel contended the Political Agent should have considered certification that the case was suitable for trial in British India (per the relevant rules).

Respondents' (Government / Political Agent / Complainant) Arguments

  • The Government Pleader and Counsel for the complainant argued that the arrest without warrant was permitted by s. 54(7) of the Criminal Procedure Code and the Indian Extradition Act, and that warrants had been duly issued by the Political Agent.
  • It was pointed out that inquiries had been made by the Ahmedabad District Police and by two Magistrates of Ahmedabad and that these were before the Political Agent when he issued the warrant.
  • Reliance was placed on s. 15 of the Indian Extradition Act, which provides that the Government of India or the Local Government may stay proceedings or cancel warrants issued under Chapter III — an exclusive administrative remedy that, in their submission, limits the High Court's jurisdiction to interfere with warrants issued by Political Agents.
  • The Political Agent's memorandum stated that there "appeared to be a strong prima facie case" based on the inquiries and evidence, and the Political Agent relied upon that material rather than personally conducting the inquiry.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
In re Mukund Babu Vethe Cited as being rendered no longer law by the operation of s. 54(7) of the Criminal Procedure Code (authorising certain arrests without warrant in extradition contexts). The Court stated that the provision in s. 54(7) of the Criminal Procedure Code "renders the case of In re Mukund Babu Vethe ... no longer law," and therefore that precedent was not applicable to defeat the legality of arrest without warrant in the present extradition context.

Court's Reasoning and Analysis

The Court's analysis was delivered by two judges (Russell, J. and Aston, J.), whose reasoning overlaps and complements each other. The core steps in the Court's legal analysis are summarized below, following only the materials and reasoning set out in the opinion.

1. Examination of the factual record and initial procedural posture: The Court observed that the petition as originally presented omitted several material facts — notably that warrants had been issued by the Political Agent on 8 February 1905 and that inquiries by the District Police and two Magistrates of Ahmedabad had been considered by the Political Agent (Russell, J.). The omission led to an interim order preventing surrender pending fuller inquiry, but later supplied documents demonstrated the existence of warrants and inquiry material.

2. Lawfulness of arrest without warrant: The Court referred to s. 54(7) of the Criminal Procedure Code (Act V of 1898), which permits a police officer to arrest without warrant a person concerned in an offense committed outside British India when a reasonable complaint, credible information or reasonable suspicion exists and the person is, under extradition law or the Fugitive Offenders Act, liable to apprehension. Applying that provision, Russell, J. held that arrest without warrant was justified and that this provision rendered the earlier decision in In re Mukund Babu Vethe no longer authoritative on the point.

3. Powers and duties of the Political Agent under the Indian Extradition Act: The Court analysed the Indian Extradition Act (XV of 1903), particularly s. 7(1) (empowering a Political Agent to issue a warrant addressed to a District Magistrate for arrest and delivery) and the Rules (Rule 4 and Rule 5) promulgated under the Act. Those Rules require the Political Agent to satisfy himself by "preliminary inquiry or otherwise" that there is a prima facie case, and to decide whether surrender should be for trial by the Political Agent or by the State Courts, taking specified matters into consideration.

4. Meaning of "preliminary inquiry or otherwise": The Court construed the phrase "preliminary inquiry or otherwise" to allow the Political Agent to satisfy himself by inquiries conducted by others (e.g., police or Magistrates) rather than insisting that he personally conduct the inquiry. Russell, J. reasoned that the words "or otherwise" must be given effect to and include inquiries held before other officials; the Political Agent's statement that "there appeared to be a strong prima facie case" was taken to mean that he was satisfied.

5. Jurisdictional limitations and available remedy under the Act: The Court examined s. 15 of the Indian Extradition Act which provides that "The Government of India or the Local Government may, by order, stay any proceedings taken under this Chapter, and may direct any warrant issued under this Chapter to be cancelled." The judges treated s. 15 as the statutory mechanism for staying or cancelling warrants issued under Chapter III and as limiting the High Court's power to interfere. Russell, J. observed that s. 15 ousts the High Court's jurisdiction to inquire into the propriety of a warrant generally, while leaving open the narrow question whether the High Court could intervene if a Magistrate's action was based on a warrant that was plainly illegal. Aston, J. elaborated that the Act confers power on Political Agents (who are British officers under the control of Government of India or Local Government) and provides the administrative tribunal (Government of India/Local Government) for redress under s. 15.

6. Application of law to the facts: The Court found no illegality or impropriety in the proceedings: the warrants had been issued after the Political Agent considered inquiries by the District Police and Magistrates; the Political Agent had stated that a strong prima facie case appeared; and the arrest was justified under s. 54(7) CrPC and the Extradition Act framework. The judges were unpersuaded by the petitioners' contention that a Magistrate in British India must, as a condition precedent, hold an inquiry before surrender; the Act and Rules place the preliminary inquiry responsibility on the Political Agent (or his satisfaction by inquiry "or otherwise") and provide administrative remedies under s. 15 rather than judicial intervention by the High Court.

7. Specific point on Rule 4 (personal inquiry by Political Agent): The Court considered counsel's argument that Rule 4 required the Political Agent to personally hold the investigation. Aston, J. found no support in the Rules for the contention that the Political Agent must personally conduct the investigation; the materials before the Court did not show failure to consider whether the case should be tried in British India.

8. Conclusion of analysis: Because the statutory scheme and the materials before the Court showed the Political Agent had satisfied himself (by the inquiries and papers submitted) of a prima facie case and because the statutory remedy for staying or cancelling warrants lay with the Government of India or the Local Government, the Court concluded that there was no basis for the High Court to prevent execution of the warrant.

Holding and Implications

Holding: Application dismissed; the rule restraining surrender was discharged and the warrant was to be carried into execution. (Russell, J. dismissed the application and ordered that the warrant be executed. Aston, J. likewise would dismiss the application, discharge the rule and withdraw the order arresting execution of the warrant.)

Implications:

  • Direct effect: The petitioners were ordered to be surrendered to the Cambay authorities in accordance with the warrant issued by the Political Agent; the interim order preventing surrender was withdrawn.
  • Jurisdictional consequence: The Court treated s. 15 of the Indian Extradition Act as providing the administrative remedy (Government of India or Local Government) for staying or cancelling warrants issued under Chapter III, thereby limiting the High Court's jurisdiction to interfere with Political Agents' warrants except in cases of plain illegality.
  • On procedural practice: The Court construed the Rules under the Act (notably Rule 4) to permit the Political Agent to be satisfied by inquiries conducted by police or Magistrates ("preliminary inquiry or otherwise") rather than mandating personal investigation by the Political Agent.
  • No new judicial precedent: The Court disposed of the application on the particular facts and statutory construction set out; the opinion does not purport to establish a broad new principle beyond these applications of the Act and Rules to the facts. The opinion also notes that where an applicant believes a warrant is unlawful, the statutory route under s. 15 is the prescribed remedy.
Show full summary ...

    Emperor v. Huseinally Niazally

    Russell, J.:— The petition herein was presented to this Court on the 25th day of February 1905, by three persons (1) Huseinally alias Saidu, (2) Habib Jiva, and (3) Karim Jiva alias Taitu.

    2. I state the material facts and the prayer thereof in extenso. Upon the face of the petition, therefore, it was apparent that the three accused persons had been kept in custody for a period of nearly two months without any warrants having been issued, and no inquiry whatever held. Such action appeared to the Judges who granted the rule herein opposed to every principle of justice as understood in British Courts: and therefore, it was incumbent on the Court to send for the Record and Proceedings and pass the order it did that the accused should not be surrendered to the Cambay authorities till further order. The case has now been fully argued by Counsel for the accused, by the Government Pleader and by Counsel for the complainant whom we allowed to appear and argue. The result of the argument and the further documents furnished to this Court show that the petition was silent on some most material points. Whether such silence was due to ignorance of what had been done or whether the accused concealed the facts and documents from their pleader it is difficult for us to say. One thing is certain and that is that looking to the fact that the petition was drawn and presented by Mr. Coyaji, pleader for the accused, we are convinced that he did not know of the further fact and documents that have been elicited and produced.

    3. In the first place then as to the arrest of the accused without a warrant that is justified by the provisions of s. 54 (7) of the Criminal Procedure Code (any police officer may, without an order from a Magistrate and without a warrant, arrest any person who has been concerned in, or against whom a reasonable complaint has been made or credible information has been received or a reasonable suspicion exists of his having been concerned in, any act committed at any place out of British India, which, if committed in British India, would have been punishable as an offence, and for which he is, under any law relating to extradition or under the Fugitive Offenders Act, 1881, or otherwise, liable to be apprehended or detained in custody in British India). This provision renders the case of In re Mukund Babu Vethe (1) no longer law. In the next place it appears that on the 8th February 1905, the Political Agent of Cambay had issued warrants for the arrest of the three accused. The warrants have been produced before us. This most material fact was not stated in the petition at all.

    4. In the third place the Political Agent, before he issued the warrants, had had before him and considered (a) the inquiries made by the District Police and (b) the inquiries made and evidence taken by two Magistrates of Ahmedabad, as appears from the Memo, furnished to us by the Political Agent, dated the 6th March 1905.

    5. It appears—though not very clearly perhaps—that the accused were not present either in person or by pleader at the inquiries and examination of witnesses by the two Magistrates of Ahmedabad. We thiuk that in all cases when such inquiries are held by Magistrates with the view of extraditing accused persous it would be desirable that they should, if possible, be present thereat but we do not find any express enactment on the point.

    6. By the indian extradition act xv of 1903—which it appears has been brought into force by Notifications. (7)(1), it is provided that “Where an extradition offence has been committed or is supposed to have been committed by a person, not being a European British subject, in the territories of any State not being a Foreign State, and such person escapes into or is in British India and the Political Agent in or for such State issues a warrant, addressed to the District Magistrate of any district in which such person is believed to be, for his arrest and delivery at a place and to a person or authority indicated in the warrant, such Magistrate shall act in pursuance of such warrant and may give directions accordingly.”

    7. By Rules 4 and 5, published under that Act in the Government Gazette of 19th May 1904, Part I, pages 613 and 614, it is provided as follows:—

    “4. The Political Agent shall, in all oases before issuing a warrant under s. 7 of the said Act, satisfy himself, by preliminary inquiry or otherwise, that there is a primafacie ease against the accused person.

    5.(1) The Political Agent shall, before issuing a warrant under s. 7. of the said 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 the 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 the accused person is a British subject or not; and if he is a Bri-tish (other than European British) subject, whether the Courts of the State either by custom or by recognition, try such British subject 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 which the accused person is charged.”

    8. In his Memo, of the 6th March 1905, the Political Agent says: “The undersigned issued warrants for the surrender of the accused as there appeared to be a strong prima facie case against them (please see the papers of the inquiries made by the District Police and two Magistrates of Ahmedabad and the evidence recorded before the First Class Magistrate, Cambay),” according to the prevailing practice. The Political Agent himself made no inquiries. The rules under the Extradition Act do hot make it incumbent on the Political Agent to make inquires himself.

    9. The words or “otherwise” in the rule above set out after “preliminary, inquiry” must, have effect given to them, and we think that they would cover an inquiry held before another official or other officials. No doubt under the Rules the Political Agent has “to satisfy himself preliminary inquiry or otherwise.” The construction we have put on the words or otherwise” enable him to satisfy himself by preliminary inquiry by himself or other officials. It is we think desirable that Political Agents in such cases as the present Should use the expression that “they are satisfied.” But we think in the present case that was what Political Agent intended to convey when he said that “there appeared to be a strong prima facie case against the three accused.” That must mean “appeared to him” and if so we must assume that he was satisfied, for if he had not been satisfied it would not have appeared to him.

    10. As was pointed out by Mr. Branson in bis argument there was some difficulty in ascertaining what the accused really were praying for; but Mr. Davar in his reply put it thus:— “This Court can order the District Magistrate to hold his hand until the warrant is shown to be legal.” The objection to this, however, is that by s. 15 of the Extradition Act it is “the Government of India or the Local Government” (not the High Court) who “may by order stay any proceedings taken under this Chapter, and may direct any warrant issued under this Chapter to be cancelled “This section ousts the jurisdiction of this Court to inquire into the propriety of the warrant, but leaves open the question of this Court's power to interfere with a Magistrate's action, if it was proved that such action was consequent upon a warrant issued by a Political Agent which was plainly illegal.

    11. In the present case, however, as we have above pointed out, there is no illegality or impropriety in any of the proceedings that have been taken and we must, therefore, dismiss the application.

    12. The warrant must, therefore, be carried into execution.

    Aston, J.:— It appears from the Record and Proceedings forwarded to this Court by the Sessions Judge of Ahmedabad that the petitioners were arrested in December last by the Ahmedabad District Police at Dholka under authority presumably of s. 54, cl. 7, of the Code of Criminal Procedure (Act V of 1898) and first Schedule of the Indian Extradition Act XV of 1903, as persons whom a Police' Officer may under that section and clause arrest, without an order from a Magistrate and without a warrant; the offence alleged against them being dacoity with murder—an extradition offence. Inquiries were conducted by the Police of the Ahmedabad District, and in January last inquiries were held by both the City Magistrate of Ahmedabad and the Magistrate at Dholka presumably under s., 10 of, the indian extradition act xv of 1903. There is before us also an affidavit sworn by one Dosan Vajir on the 16th March last that these Magisterial inquiries in January were made in the presence of such of the accused as had been arrested.

    14. It further appears that the papers of these three inquiries were read by the Political Agent for Cambay together with the record of an inquiry made by a Magistrate of the Cambay State in the absence of the petitioners before he issued his warrant referred to in the present, application.

    15. The Political Agent for Cambay (who is also District Magistrate of Kaira) after perusal of the information obtained in these inquiries issued his warrant under s. 7 (1) of the Indian Extradition Act addressed to be District Magistrate of Ahmedabad for the arrest of the petitioners and for their delivery to the Cambay authorities. The District Magistrate who, according to the law as enacted in the said section of the said Act, “shall act in pursuance of such warrant, and may give directions accordingly,” did give directions accordingly to the City Magistrate, Ahmedabad.

    16. When the petitioners were being removed in custody through the Ahmedabad District under the warrant aforesaid of the Political Agent for Cambay to be surrendered to the authorities of the Cambay State, application was made to the District Magistrate of the Ahmedabad District who was responsible in law for executing the said warrant “(1) that they may not be surrendered to the Native State of Cambay unless and until an inquiry is made by a competent British Court into the truth of the accusations made against them, namely, of being concerned in an offence of dacoity with murder committed in the State of Cambay and that (2) pending the result of such inquiry they may not be surrendered to the Cambay authorities.

    17. This application was refused on the 23rd February last. A similar application was meanwhile made on 21st February by the same persons to the Sessions Judge of Ahmedabad who on the 21st February took it upon himself, under what provision of law has not been stated, to make and issue an interim order to the City Magistrate, Ahmedabad, arresting the execution of the warrant of the Political Agent for Cambay pending his own further orders in the matter. On the 27th February last the Sessions Judge of Ahmedabad cancelled this interim order by a further order as follows:—

    “ORDER. These applications ask the Sessions Court to prohibit the City Magistrate, Ahmedabad, from handing over the applicants to Cambay State, in compliance with warrants issued by the Political Agent, whereunder they have been arrested. The ground alleged is the omission of the Magistrate to hold a preliminary inquiry under s. 14 of act xxi of 1879.

    The extradition law now applicable is contained in Act XV of 1903, which repealed the earlier enactment. The rules under it, which are published at page 613 of the Bombay Government Gazette for May 19, 1904, and the provisions of s. 14 of the old act alike prescribe the holding of the preliminary inquiry, not by the Magistrate when executing the warrant, but by the Political Agent before issuing it. I have no reason to suppose that the rules were not observed in the present instance, and if I had, I should decline to interfere with the warrant on the ground of want of jurisdiction, see section 15 of the present Act.

    The applications were apparently presented under a misapprehention of the law. Applicants only remedy lies by petition to the Bombay Government, I cancel the interim orders issued.”

    18. Again before the application aforesaid to the Sessions Judge of Ahmedabad had been thus disposed of, the present application was presented to this High Court on 25th February last repeating the same requests which had been made to the District Magistrate and the Sessions Judge of Ahmedabad to arrest tho execution of the warrant of the Political Agent for Cambay and to order that the petitioners may not be surrendered to the Cambay authorities unless and until an inquiry is made by a competent British Court iuto the truth of the accusation made against them.

    19. On the 27th February last a rule was granted by Russell and Batty, JJ. and it was ordered that telegrams be sent to the City Magistrate, District Magistrate and Sessions Judge at Ahmedabad not to surrender the accused parsons to the Cambay authorities till further orders.

    20. The grounds upon which this application was made are two-fold:— First, there is the allegation, for which no foundation is suggested in the application itself, and for which no support was adduced in the argument in support of the Rule, that the Political Agent had acted on bare suspicion when he issued his warrant under the indian extradition act.

    21. Secondly, there is the suggestion, based, as the Sessions Judge of Ahmedabad has already pointed out, upon a misapprehension of the provision of the Indian Extradition Act, that this Act requires as a condition precedent for surrender of an alleged fugitive criminal to a State, not a Foreign State as defined in s. 2, that there shall be a preliminary inquiry before a Magistrate in British India before such alleged fugitive criminal is surrendered in execution of the warrant of a Political Agent for such State.

    22. The provisions of the Act show that the Legislature viewing a Political Agent for a State other than a Foreign State, denned in s. 2, as a British Officer under the control and authority of the Government of India the Local Government, has conferred upon such Political Agents, who are not under the authority or control of this High Court and whose Courts are not subordinate to this High Court, power to decide whether an alleged fugitive criminal shall be arrested in British India and directed to be surrendered to the authorities in a Native State.

    23. Such power is exercised under the provisions of Chapter III of the indian extradition act, and under the rales made under s. 32 of the said Act by the Governor-General in Council, and promulgated in the Notification No. 1832 IA published at page 364, Gazette of India, Part I, May 14, 1904.

    24. The Act further provides a tribunal where those who seek to get any warrant issued under Chapter III cancelled or to stay any proceedings taken under that Chapter, can seek redress. For s. 15 enacts that “The Government of India or the Local Government may, by order, stay any proceedings taken under this Chapter, and may direct any warrant issued under this Chapter to be cancelled, and the person for whose arrest such warrant has been issued to be discharged.”

    25. The Act does provide for a Magisterial inquiry in the cricumstances stated in s. 10 of the Act and s. 54, c. 7, of the Criminal Procedure Code authorises the Police in British India where the offence is one of those enumerated in the first schedule of extradition offences to arrest without warrant fugitive criminals from a Native State.

    26. But there is no provision in the indian extradition act or in the Code of Criminal Procedure or in any other law to which our attention has been directed making an inquiry by a competent British Court in British India into the truth of the accusation, whether in the presence of the accused or otherwise, a condition precedent to the issue ‘and execution of the warrant of a Political Agent under s. 7 of the Act.’

    27. I am accordingly of opinion that we have no jurisdiction “to order that the petitioners may not be surrendered to the Cambay authprities unless and until an inquiry is made by a competent British. Court into the truth of the accusation made against them.”

    28. The provisions of Chapter III of the indian extradition act by taking advantage of the existence of a Britsh Court on either side of a frontier between British India and a Native State, bring the arrest of fugitive criminals from a Native State into British India and their surrender, within the machinery of the criminal Courts and thereby dispense with the interminable delays which must, often be incidental to procedure by requisition. In these provisions of Chapter III the intention of the Legislature to facilitate the prompt arrest and surrender of fugitive criminals is, in my opinion, clearly, manifested. But that intention is liable to be frustrated and justice would, in my opinion, be hindered and possibly defeated if applications to arrest the execution of a warrant issued under, s. 7 of,.the Indian Extradition Act made upon such grounds as are set forth in the present application are in any way encouraged.

    29. For the above reason I would dismiss this application and discharge the rule, and withdraw the order arresting execution of the warrant issued by the Political Agent for Cambay State under s. 7 of the Indian Extra'ditidn Act. At the bearing Mr. Davar, Counsel for the petitioners, did not put forward the grounds relied upon in the application, but endeavoured to show that the Political Agent for Cambay before issuing his warrant had not followed the Rules made under s. 22 of the Act by the Governor General in Council. It was contended that under Rule 4 of these Rules he should have personally held, the investigation resulting in a prima facie case against the petitioners, and further as the petitioners claim to be British subjects the Political Agent should under Rule No. 3 before issuing his warrant have considered whether he ought not to certify the case as one suitable for trial in British India.

    30. I was unable to gather what action we were invited to take in the event of our deciding that the Political Agent whose proceedings are not under the superintendence of this High Court had not complied with the Rules made under s. 22 of the Indian Extradition Act Sy the Governor-General in Council. The indian extradition act daes not require that when a warrant issued under S. 7 is forwarded to a District Magistrate in British India the proceeding's andpapers upon which such warrant was issued shall be submitted to the District Magistrate.

    31. I am of opinion that the provisions of the Act itself make it manifest that we should be going out of our province if we were to embark upon any such inquiry as that which Counsel for the petitioners invites us to undertake.

    32. If any opinion on the merits of the above objection were called for in this case, I would observe that I can find no support in the Rules themselves for the contention that the investigation as to the existence of prima faice evidence to support the accusation must be personally conducted by the Political Agent, nor can I find in the materials placed before us any ground for the contention that the Political Agent had not, before issuing his warrant under s. 7 of the Act, considered “whether he ought not to certify the case as one suitable for trial in British India.”

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    Emperor v. Huseinally Niazally
    (Apr 7, 1905)