Dr. Babu Ram Saksena Vs The State [1950 AIR 155, 1950 SCR 573]

Introduction to the Case:

Extradition is the procedure of a state surrendering a criminal to another state for the prosecution and punishment of his offences which were committed in the requesting or seeking country’s jurisdiction.  India faced many issues and problems in the arena of extradition. The existence of extradition treaties was of prime importance. If the case of extradition could not operate under the extradition treaty between British India and the other States, then there arises a question as to what law would prevail. In the case of Dr. Ram Babu Saksena V. The State, the court discussed the treaty which existed between India and Tonk State. This case discusses how the treaty got affected. The Extradition Act containing 5 chapters was enacted in 1962, it deals primarily with all issues concerning extradition in India. It was later amended in 1993. The Criminal Procedure Code also provides certain sections for extradition, they are Section 41(1), Section 166A, Section 166B, Section 188. Currently, India has extradition treaties in 43 countries. India has the right to make an extradition request to any country however right to accept the request depends on the India’s treaty with that particular country.

Facts

Dr. Saksena was serving as a member of the Uttar Pradesh Civil Service community and was appointed to serve the Tonk State. He had allegedly assisted the Nawab to acquire the sanction of the Government for the payment of Rs.14 Lakhs from the state treasury to discharge the debts of the Nawab. He was further accused for inducing the Nawab and threatening him to pay Rs. 3 lakhs on several dates. Under Section 7 of the Extradition Act, a warrant was issued to arrest the appellant. In the light of such offences, the accused was charged under the following acts,

• Section 383 – Extortion (IPC)
• Section 420 – Cheating (IPC)
• Under the Extradition Act, the above-mentioned sections are extraditable offences.

Issues

1. Does the Extradition treaty between the Tonk State and British government get affected due to the merger of the State into the United State of Rajasthan?
2. Was the Warrant issued legal?

Procedural History

• Dr. Saksenawas accused of offences under Sections 383 and 420 of the IPC.
• He approached the High Court of Allahabad and filed an application under section 491 and 561-A of the CPC.
• A special leave petition was granted by the court.

Party’s Arguments

Mr. Alladi Krishnaswami Aiyar represented the appellant.

• He argued that the Nawab provided the appellant with Rs. 3 lakhs for the purpose of depositing in a bank and for the use of the Nawab in Delhi.
• He argued that the appellant was wrongfully incriminated by the Nawab on grounds of enmity.
• He argued on the grounds of section 7 and section 18 of the Extradition act.
• Learned Counsel argued that the District magistrate of Naini Tal cannot take notice of the matter without the sanction providedby the Uttar Pradesh Government, under section 197 of the CPC.
• He further contended that the warrant had no relevance to the issue at hand and the proceedings did not have a proper jurisdiction.
• He contented for the proceedings and warrant to be revoked.
• Tonk State and the British Governmententered into a treaty on 28^th January, 1869.
• This treaty provided for the extradition of wrongdoers in light of certain offences, such as “heinous offences”. But did not provide for the offence of extradition and cheating.
• It lapsed from 15^th August, 1947.
• But it continued to be in force due to the stand-still agreement which was established on 8^th August.
• It was claimed that it did not provide for the offences which the accused was charged with.
• Therefore, it was argued that the extradition of the appellant cannot be ordered.
• The appellant argued on the grounds of the maxim “Unius es exclusion alteriusa”.
• He stated that if the Government of India undertook measures to permit extradition for any offence which was not provided in the treaty then it would violate the “principle of reciprocity”.
• Mr. Alladi relied upon the case of Terlinden V. Ames and Lazard Brothers v. Midland Bank Ltd.[1]

Attorney General, M.C. Setalvad represented the respondent

• The Attorney General made a two -fold argument.
• M.C Setalvad answered the contentions raised by the petitioners.
• Firstly, he contended that the standstill agreements were only made for temporary purposes.
• It was established for only specific administrative events such as the accession of states.
• The standstill agreement lapsed from 16^th August,1947.
• Tonk State came to an agreement with the Dominion on 16^th August,1947.
• He argued that the Tonk State did not exist politically.
• He stated that even in case the treaty was in existence, it would not contravene with section7.
• He also stated that section 18 of the Indian Extradition Act had no relevance and cannot be applied to the current case.
• He further stated that the warrant issued was legal.
• M.C Setalvadalso brought to the attention of the court, the several political changes that arose in the Tonk State after the end of the Treaty in the year 1869.

Holdings – Rule Of Law And Judgement

Rule Of Law

• Section 383 – Extortion under the Indian Penal Code – Whoever intentionally puts any person in fear of any injury to that person, or to any other, and thereby dishon­estly induces the person so put in fear to deliver to any person any property or valuable security, or anything signed or sealed which may be converted into a valuable security, commits “extor­tion”[2]

• Section 420 of the Indian Penal Code provides for cheating and dishonestly inducing delivery of property, whoever cheats and thereby dishonesty induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall be liable to fine.[3]

• Section 18 of the Extradition Act, 1962 provides for return of fugitive criminal by warrant – The Central Government may, at any time after a fugitive criminal has been committed to prison under this Chapter, issue a warrant for custody and removal of the concerned fugitive criminal and for his delivery at a place and to a person to be named in the warrant.[4]

• Section 7 of the Extradition Act – Contains procedure before the magistrate.

• Section 197 of The Code of Criminal Procedure, 1973 – The prosecution of judges and public servants.

• Chapter 111 of the Indian Extradition Act – Surrender of fugitives in cases of states other than foreign states.[5]

Judgement

• It was held in the judgement that, even if the extradition treaty of 1869 existed after the merger of the Tonk State, and even after the Extradition Act of 1903 provided for extradition or additional offences, it will not set to be derogative of the provisions of the Treaty. [6]
• The Extradition Treaty of 1869 was not capable of being given effect to under the view of the merger of the Tonk State in the United State of Rajasthan, thus it was held that since there was no enforceable treaty right, Section 18 of the Extradition Act had no application and after complying with the section 7 of the Extradition Act, the warrant issued under section 7 was ultimately held to be not illegal.[7]
• The arrest of the Dr. Saksena made under section 7 of the was not illegal.
• The treaty was thus rendered as ineffective.
• The appeal was dismissed.

Rationale

The reasons behind the judgement are as follows,

• The arguments argued by the appellant side was not accepted as it was considered to be constructed on the grounds of misconception.
• The court referred to the case of Regina V. Wilson[8].
• Cockburn CJ’s comments in the case of Regina V. Wilson was observed.
• Cockburn also said that “it’s easier to transport the criminal to the place of his offence than to carry all the proofs to another country where is trail takes place.”
• It was established that the Act cannot detract from any treaty.
• As mentioned in Wheaton’s International Treaty, it is not recognized that there cannot be extradition except under a treaty.
• This act does not detract from any treaty when it authorizes the Government of India to grant extradition.
• The bench was of the judgment that the detainment and surrender ofDr. Saksena made under section 7 of the extradition act is not established to be illegal by anything mentioned or contained in the treaty of 1869, in the scenario being that it continues to subsist.
• Therefore, the appeal was dismissed.

Dicta

The Hon’ble judges on the bench Mr. FazalAli, Mr. Saiyid Mahajan, Mr. Mukherjea all were of the same opinion that the appeal must be dismissed and there was no dissenting opinion. Judge Mehr Chand Das also agreed with the reasoning for the judgement provided by learned Judge Mukherjea and dismissed the appeal.

Comments

From this case, we can understand that there are several factors that dampen the process of extradition and make it relatively slow to carry out the process of extradition.

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References:

[1][1932] 1 K. B. 617

[2]https://indiankanoon.org/doc/262864/

[3]https://indiankanoon.org/doc/1436241/

[4]https://indiankanoon.org/doc/1648695/

[5]https://indiankanoon.org/doc/1502630/

[6]https://indiankanoon.org/doc/390835/

[7]https://indiankanoon.org/doc/390835/

[8][1990] 1 SCR 1291