s. c. R. SUPREME COURT REPORTS

DR. BABU RAM SAKSENA

ti.

THE STATE

r SttRI HARILAL KANIA c. J ., SAIYID F AZL Au,

PATANJALI SASTRI, MEHR CHAND MAHAJAN,

MuKHERJEA and DAs JJ.]

573

Constitutioll of India-Merger of. States-Effect-Treaty of

Extradition between British Government and Indian State-Whether

subsists after merger-Extradition Act 1903, ss. 7, IS-Provision

i11 Act for extradition for additional offences-Whether "derogates"

from Treaty-F.xtradition warrant for additional offences-Legality.

In 1869 the British Government and Qie State of Tonk

entered into treaty which provided for the extradition of

offenders in respect of certain offe11ces specified therein called

"heinous offences," which did not include the offences of chcat­

i ng and extortion. In 1903 the Indian Extradition Act was

passed which provided for extradition in respect of cheating and

extortion also, but

s. 18 of the Act provided that nothing

con­

tained in the Act "shall derogate from the provisions of any

treaty for the extradition of offenders." Under the Independence

of India Act,

1947,

the suzerainty of His Majesty over the Indian

States lapsed ana with it all ~reaties and agreements in force;

but under a "standstill agreement," between the Indian Dominion

and the States (including Tonk) all agreements between His

Majesty and the States were continued, including agreements in

respect of extradition. Tonk acceded to the Dominion of lridia in

1947 and became a member

State of the United State of

Rajasthan.

The appellant was a member of the

Uttar Pradesh

Civil Service and his services were lent to the State of Tonk in

1948. After he had reverted to the Uttar Pradesh he was charged

with the

offences of cheating and extortion alleged to have been

committed while

he was in Tonk and was arrested under an

extradition warrant issued under

s. 7 of the Extradition Act,

1903. He applied under ss. 491 and 561-A of the Code of

Criminal Procedure for his release, contending that in view of the

provisions of

s. 18 of the Extradition Act and the

Tre~ty of

Extradition of

1869, his arrest was illegal :

· Held per KANIA C. J. and PATANJALI SAsTRI J. (FAzL ALI J.

concurring).-Even assuming that the Extradition Treaty of 1869

subsisted after the merger of the Tonk State, by providing for

extradition

for additional offences the Extradition Act of

1903 did

not derogate . from the provisions of the Treaty of 1869 or the

rights of Indian citizens thereunder, and the arrest and surrender

of the appellant under

s. 7 of the Act was not, therefore, rendered

unlawful

by anything contained in the said Treaty.

1950

ltlig 5.

1950

Dr. Babu Ram

Salama

v.

The Siok.

Patdnjali

Sastri].

574 SUPREME COURT REPORTS f1950J

Per MuKHERJEA J. (FAZL AL1, ivfAHAJAN an<l DAs JJ. con­

curring).-The Extradition Treaty of 1869 \Vas not capable of

being given effect

to in

vie'v of the n1erger of the Tonk State ;n

the United State of Rajasthan, and, as no enforceable treaty

right existed,

s. 18 of

the Extradition Act of 1903 had no applica­

tion ; and

inasn1uch as the conditions of s. 7 of the said Act

had

been complied with, the warrant of arrest issued under s. 7 of the

Act \Vas not illegal.

APPELLATE JuR1so1cTroN: Criminal Appeal No. II

of

1949.

Appeal by special

leave from the judgment of the

Allahabad

High Court (Harish Chandra J.) dated 11th

November,

1949, in Criminal Miscellaneous Case No.

960 of 1949. The facts of the case and the arguments

of coumel are set out fully in the judgment.

Alladi, Krishnaswami /year (Alladi Kuppuswami

with him) for the appellant.

M. C. Setalvad, Attorney-General for India (V. N.

Sethi, with him) for the respondent.

1950. May 5. The judgment of Kania C.J. and

Patanjali Sastri J. was delivered by

PATANJALI SASTRI J.-This is an appeal by special

leave from an order of the

High Court at Allahabad

dis­

missing an application under sections 491 and 561-A of

the Code of Criminal Procedure for release of the

appellant who was arrested in pursuance of an ex­

tradition warrant issued by the Regional Commissioner

of the United State of Rajasthan who is the principal

officer representing the Crown in tbe territory of that

State.

The appellant who is a member of the Uttar Pradesh

Civil Service was appointed in

1948 to serve what was

then known

as the Tonk

State in various capacities,

and during such service he

is alleged to have helped

the Nawab in obtaining the sanction of tbe Government

of India to the payment of

Rs. 14 lakhs to the Nawab

out of the

State Treasury for the discharge of his

debts, and to have induced the Nawab

bv

threats and

deception to pay the appellant, in return. for such help,

sums totalling

Rs. 3 lakhs on various dates.

On these

allegations the appellant

is

charged with having com­

mitted offences under section 383 (Extortion) and

S.C.R. SUPREME COURT REPORTS 575

section 420 (Cheating) of the Indian Penal Code which

are extraditable offences under the Indian Extradition

Act, 1903 (hereinafter referred to as "the Act"). The

warrant was issued under section 7 of the Act to the

District Magistrate, Nainital, where the appellant was

residing after reverting to the service of the Uttar

Pradesh Government, to arrest and deliver him up

to the District Magistrate of Tonk.

The appellant's

case is

th:it the sum of Rs. 3 lakhs

was paid to him by the Nawab to be kept in safe

deposit in a bank for the Nawab's use in Delhi, that

no offence was committed and that the amount was

returned when demanded

by the authorities of. the

Tonk

State. The warrant was issued mala fide on

account of enmity. Various technical objections were

also raised to the validity of the warrant and to the

jurisdiction of the Magistrate at Nainital

to take

cogmsance of the matter and

~rrest the · appellant:

The High Court overruled all the objections and dis­

missed the. application for the release of the appellant.

On behalf of the appellant Mr. Alladi Krishnaswami

Aiyar contended that section 7 of the Act under which

the warrant purports to have been issued had no

application

to the case and that the ' entire proceedings

before the Magistrate were illegal and without

jurisdic­

tion and should be quashed. Learned counsel, relying

on section

18 of the Act which provides that nothing in

Chapter III (which contains section 7) shall

"derogate

from the provisions of any treaty for ·the extradition of

offenders," submitted that the treaty entered into

between the British Government and the Tonk State on

the 28th January,

1869, although declared by section 7 of the Indian Independence Act, 1947, to have lapsed

as from the 15th August, 1947, was continued in force

by the "Standstill Agreement" entered into on the

8th August,

1947, that that treaty exclusively governed

all matters relating to extradition between the two States, and that, inasmuch as it did not cover the

offences now charged against the appellant, no extra­

dition of the appellant could \>c demanded or ordered.

1950

Dr. Babu Ram

Sahtna

v.

The Stott.

Patwifoli

Sastri].

1950

Dr. Babu Ram

Saksnld

v.

T/,. Statt.

Patalljllli

Sanri ].

576 SUPREME COURT REPORTS I 1950]

The Attorney-General appearing for the Government

advanced three lines of argument in answer to that

contention. In the first place, the standstill agreement

entered into with the various Indian States were purely

temporary arrangements designed

to maintain the

status quo ante m respect of certain administrative

matters of common concern pending the accession of

those

States to the Dominion of India, and they were

superseded

by the Instruments of Accession executed

by the Rulers of those States. Tonk having acceded

to the Dominion on the 16th August, 1947, the stand­

still agreement relied on

by the appellant

must be

taken to have lapsed as from that date. Secondly, the

treaty was no longer subsisting and its execution

became impossible,

as the Tonk

State ceased to exist

politically and such wvereignty as it possessed was

extinguished, when it covenanted with certain other

States, with the concurrence of the Indian Government

·"to unite and integrate their territories in one State,

with a common executive, legislature and judiciary,

by the name of the United State of

Rajasthan," the

last of such covenants, which superseded the earlier .

ones, having been entered into on the 30th March, 1949. '

Lastly, even assuming that the treaty was still m

operation

as a binding executory contract, its

pro­

v1s10ns were in no way derogated from by the applica­

tion of section 7 of the Act

to the present case, and the

extradition warrant issued under that section and the

arrest made in pursuance thereof were legal and valid

and cou

Id not be called in question under section 491

of the Criminal Procedure Code. As we are clearly of

opm10n that the appellant's contention must fail on

this last ground, we consider it unnecessary to pro­

nounce on the other points raised by the Attorney-.

General especially

as the issues involved are not purely

legal but partake also of a political character, and we

have not had the views of the Governments concerned

on those points.

It was not disputed before us that the present

case

would fall within section 7 of the Act, all the require­

ments thereof being satisfied, if only the applicability of

S.C.R. SUPREME COURT REPORTS 577

the section was not excluded, under section 18, by

reason of the Extradition Treaty of

1869, assuming that

it still

subsists. The question accordingly arises whether

extradition under section 7 for an offence which

is not

extraditable under the treaty

is, in any sense, a deroga­

tion

from· the provisions of the treaty, which provides

for the extradition of offenders for certain specified

offences therein called "heinous offences," committed

in the respective territories of the high contracting

parties. Under article 1 the Government of the Tonk

State undertakes to· extradite any person, whether a

British or a foreign subject, who commits a l_leinous

offence in British territory. A reciprocal obligation

is cast by article 2 on the British Government to ex­

tradite a subject of Tonk committing such an offence

within the limits of that State. Article 3 provides, inter

alia, that any person other than a Tonk subject com­

mitting a heinous offence within the limits of the Tonk

State and seeking asylum in British territory shall be

apprehended and the case investigated by such Court

as the British Government may direct. Article 4 pre­

scribes the procedure to be adopted and the conditions

to

be fulfilled before extradition could be had, and

:article 5 enumerates the offences which are

"to 1)e

deemed as coming within the category of heinous

offences" which, however, do not include the offences

charged against the appellant.

The argument on behalf of appellant

was put thus:

The maxim expressio unius est exclusio alterius is

:applicable, as pointed out by McNair on The Law of

Treaties,

(1938-pp.

203, 204), to the interpretation of

treaties. According to that rule the treaty in question

should

be read as allowing extradition only for the

specified

offences and for no others, that is to .say, as

implying a

prohibition of extradition by either State

for any other offence than those enumerated in article

5. Further, while the treaty entitled each of the high

contracting parties

to demand extradition on a

reci­

procal basis; an unilateral undertaking by the Indian

Government

to grant extradition for an offence for

which it could not claim extradition under the treaty

1950

Dr. Babu Ram

Saksenu

v.

Tk State.

Patanjali

Sastrij.

Dr. Babu Ram

Saksena

v.

Tk Stale.

Pat1171iali

Sas1ri].

578 SUPREME COURT REPORTS [1950}

violates the principal of reciprocity which is the recognis­

ed basis of all international compacts for extradition.

Such an arrangement places the State of Tonk in a more

advantageous position which was not contemplated

by

the framers of the treaty. And

wh~re, as here, the

person whose surrender

is demanded is an Indian

subject who

is not liable to be ,extradited under the

treaty,

his surrender under section 7 trenches upon the

liberty of the subject.

In so far, therefore, as that sec.

tion authorises extradition of a person, especially

when he

is an Indian subject, for an offence which is

not extraditable under the treaty, it derogates from the

provisions of the treaty within the meaning of section

18, and its application to the present case

is thereby

excluded. The argument proceeds on a misconception

and cannot

be accepted.

No doubt the enumeration of

"heinous offences"

in article 5 of the treaty is exhaustive in the sense that

the high contracting parties are not entitled, under

the treaty, to claim extradition of criminals in respect

of other offences. But

we cannot agree that such

enumeration implies a

prolzibition against either of

those parties providing

by its own municipal laws for

the surrender of criminals

for other offences not

cover­

ed by the treaty. It is difficult to imagine why the

contracting States should place such a fetter on their

respective legislatures in advance not only in regard

to their subjects but also in regard

to alien offenders,

for,

if such prohibition is at all to be implied, it should

cover both.

As pointed out in Wheaton's International

Law, there is no universally recognised practice that

there can

be no extradition except under a treaty, for

some countries grant extradition without a treaty :

(Fourth Edition, sections

116 (a) to (d), pp. 186-189).

No doubt the constitutional doctrine

'in England is that

the Crown makes treaties with foreign States for extra­

dition of criminals but those treaties can only be carried

into

effect by Act of Parliament : (Ibid-section 116

(b ), p. 187). Accordingly, the extradition Acts arc

made applicable

by an.

Order in Council in the case

of each State which enters into an extradition treaty

S.C.R. SUPREME COURT REPORTS 579

with the Crown, and they are made applicable only

so far as they can be applied cons~tently with

the terms and conditions contained in the treaty.

Under such a system where the high contracting parties

expressly provide that their own subjects shall not

be

delivered up, as in the case of the treaty between

Eng­

land and Switzerland, the power to arrest and surren­

der does not exist: Regina v. Wilson(1 ). This it was

observed

by Cockburn C.J. in that case, was a

"serious

blot" on the British system of extradition, and the

Royal Commission on Extradition, of which he was the

chairman, recommended in their report that "recipro­

city in this matter should no longer be insisted upon

whether the criminal

be a British subject or not. If

he has broken the laws of a foreign country his

liabi­

lity to be tried· by them ought not to depend upon his

nationality ...... The convenience of trying crimes in the

country where they were committed

is obvious. It is

.

very much easier to transport the criminal to the place

of his offence than to carry all the

witnesses and proofs

to

some other country where the trial is to be held :"

(Wheaton, section 120 (a), pp. 197, 198). Evidently,

similar considerations

led to the passing of the Act by

the Indian Legislature providing for the surrender of

criminals, including Indian subjects, for a wide variety

of offences, with power to the Governor-General in

Council to add

to the list by notification in the

Gazette generally for all

States or specially for any one

or more States. This statutory authority to surrender

cannot of course enlarge the obligation of the other

party where an extradition treaty has been entered

into, and this

is made clear by section 18. But it is

equ­

ally clear that the Act does not derogate from any such

treaty when it authorises the Indian Government to

grant extradition for

some additional offences, thereby

enlarging, not curtailing,

· the power of the other party

to claim surrender of criminals. Nor

does the Act

derogate, in the true

sense of the term, from the

posi­

tion of an Indian subject under the treaty of 1869.

That treaty created no right in the subjects of either

(11 3 Q· B. D. 42.

5--5 S. C. India ;N.D.)/58

19So

Dr. Babu Rom

Saksma

v.

Thi State.

PaJanjali •.

Sastri J.

1950

Dr. Babu Ram

Saksma

v.

The Stau.

Patanjali

Sastri j.

F.,J Ali j.

Malrf!ia;o j.

Muk/rerfea].

580 SUPREME COURT REPORTS [1950]

State any more than in fugitive aliens not · to he

extradited for other than "heinous offences". It is

noteworthy that even in Wilson's case, (ubi supra)

where there was an exception in the treaty in favour of

the subjects of the contracting States, the decision

was

based not on the ground that the treaty by itself

con­

ferred any right or privilege on English subjects not

to

be surrendered but on the ground that the

Order

in Council applying the Extradition Act, 1870, to

Switzerland limited its operation, consistently with

the terms of the treaty,

to persons other than English

subjects. It

is, therefore, not correct to say that, by

providing for extradition for additional offences, the

Act derogates from the rights of Indian citizens under

the treaty or from the provisions of the treaty. We

are accordingly of opinion that the arrest and

surren­

der of the appellant under section 7 of the Act is not

rendered unlawful by anything contained

in the treaty

of

1869, assuming that it still subsists.

The appeal fails and is dismissed.

FAzL

Au J.-I have had the advantage of reading

the judgments prepared

by my brothers,

Sastri and

Mukherjea, who have given different reasons for arri­

ving at the same conclusion. As I am inclined to agree

with the line of reasoning in both the judgments, I

concur in the order that this appeal should

be

dis­

missed.

MAHAJAN J.-I agree with the judgment going to be

delivered by my brother Mukherjea. For the reasons

given therein this appeal should

be dismissed.

MuKHERJEA J.-This appeal, which has come up

before

us on special leave granted by this Court, is

directed against a judgment of Harish Chandra J. of

the Allahabad High Court dated 11th of November,

1949, by which the learned Judge dismissed an

appli­

cation of the appellant under sections 491 and 561-A

of the Criminal Procedure Code.

The facts which are material for purposes of this

appeal are not in controversy and may

be shortly

stated

as follows: The appellant Dr. Babu Ram

/

_,

-

S.C.R. SUPREME COURT REPORTS 581

Saksena, who is a resident of the United Provinces,

was a member of the Executive Civil Service in that

province, and during his

official career, extending

over

30 years, held various important posts, both in

and outside that province. In January,

1948, he was

appointed Administrator of the

Tonk State, where a

disp.ute was going on at that time regarding succession

to the rulership of the State between -two rival claim­

ants. On 11th of February, 1948, the dispute was

settled and Ismail Ali Khan was recognised

as the

Nawab or the Ruling

Prince of the State and appel­

lant was then appointed Dewan and Vice-President

of the State Council, of which the Nawab was the

President. In April,

1948, the Tonk

State, together

with several other States

in Rajputana, integrated and

formed together the

United State of Rajasthan and

the appellant thereupon became the Chief Executive

Officer of the Rajasthan Government. Towards the

end of July,

1948, he got a'nother special post under

the Rajasthan

Governtllent, but soon afterwards, he

took leave and proceeded to Naini Tai, where he has

been residing since then. On 23rd May, 1949, he was

arrested at Naini Tai on the strength of a warrant

issued under section 7 of the Indian Extradition Act,

1903, by Shri V. K. B. Pillai, Regional Commissioner

and Political Agent of the United State of Rajasthan.

The warrant, which is dated the 8th of May, 1949,

was addressed to the District Magistrate of Naini Tai

and directed to the arrest of Dr. Saksena and his remo­

val to Rajasthan, to be delivered to the District Magis­

trate of Tonk for enquiry into certain offences :igainst

the laws of that State which he was alleged to have

committed. After

his arrest, the appellant was released

on bail in terms of the warrant itself and was directed

to

be present before the District Magistrate of Tonk

on the 7th of June, 1949. The allegations against the

appellant in substance are, that while he was the

Dewan of the

Tonk

State and Vice-President of the

State Council, the Nawab, being in urgent need of

money to meet

his personal demands, requested

Dr.

SakSena to help him in obtaining for his own use

1950

Dr. Babu Ram

S.7kstna

v.

The Stair.

Mukhtrjea ].

1950

Dr. Babu Ram

sots ...

v.

TM Slat<.

Muklrerjea ].

582 SUPREME COURT REPORTS 11950.1

a sum of Rs. 14 lakhs from the State Treasury.

Dr. Saksena promised his assistance on condition that

the Nawab would give him a sum of

Rs. 3 lakhs out

of this amount

as his share. By dint of his efforts,

the appellant succeeded in inducing the

State Ministry

to pay the full amount of Rs. 14 lakhs to the Nawab

in different instalments. The first instalment, amount­

ing to over Rs. 2} lakhs was paid on· 31st March, 1948,

and a further sum of Rs. 5 lakhs was paid on 21st of

April following. On that date, it is said, the Nawab

paid

to Dr.

Saksena a sum of Rs. 1,50,000 which

was only half of the promised amount. A few days

later, Dr. Saksena pressed for payment of the balance

and held out threats to the Nawab that in

case the

money was not paid, the latter would find himself

in

serious difficulties as his position as a Ruling

Prince

of the State was not at all secure and there were grave

charges against him.

As a result of these threats and

misrepresentations, the Nawab

was induced .to

pay .to

the appellant the balance of Rs. 1,50,000 m two m­

stalments. The matter became known to the Regional

Commissioner some time in November

1948 and he

called Dr.

Saksena for an interview and succeeded in

getting back from him the entire sum of

Rs. 3 lakhs

which the Nawab had paid.

On the basis of these

facts, Dr. Saksena has been accused of having com­

mitted offences under sections 383 and 420 of the

Indian Penal Code.

On 3rd June, 1949, Dr. Saksena filed an application

in the High Court of Allahabad under sections 491 and

561-A of the Criminal Procedure Code, complaining of

illegal and unauthorised detention under the warrant·

of the Regional Commissioner of Rajputana dated the

8th of May,

1949. The legality of the warrant and of

arrest thereunder was attacked on a number of grounds.

It was contended, first

of all, that the applicant was

falsely implicated

by the Nawab on account of enmity

which grew

up between

them for various reasons and

the allegations made were totally false. It was next

said that the District Magistrate of Naini Tai could

not take cognizance

of the matter without the previous

S.C:R. SUPREME COURT REPORTS 583

sanction of the U. P. Government under section 197 'of

the Criminal Procedure Code and that the sanction of

the Rajpramukh of the United State of Rajasthan was

also necessary before any proceeding could be initiated.

The third and the main contention was that the al­

leged offences being said to have been committed in

the State of Tonk, the case would be governed by the

provisions

of the Extradition Treaty entered into be­

tween the British Government and the Tonk

State on

28th of January,

1869, and as neither

"extortion" nor

"cheating" was mentioned in the list of offences for

which extradition

was permissible under that Treaty,

the warrant

.of arrest issued under

sectio~ 7 of the

Extradition Act

was wholly illegal and unauthorised.

It

is admitted that these offences are specified in the

Schedule

to the Inclan Extradition Act of

1903, but

it was said that section

18 of the Extradition Act

expressly made the Act inapplicable when its provi­

sions

"derogated" from those of a Treaty. Lastly, it

was urged that the extradition warrant was a mala fide

step taken by the Nawab of Tonk with the help of his

friend the Regional Commissioner of Rajasthan for

ulterior purposes and that it constituted a fraud upon

the Statute and an abuse of the

processes of law.

The application

was

hea~d by Harish Chandra, J.

sitting singly, and by a judgment dated 11th of

November,

1949, which fully and elaborately discussed

the different points raised in the

case, the learned

Judge rejected the application

of the petitioner. No

certificate was given by the High Court u_nder sec­

tion 205(1) of the Government of India Act, 1935, and

the present appeal has been, brought to this Court on

the strength

of special leave granted by it.

Sir Alladi Krishnaswami Aiyar, who appeared in

support of the appeal,

has very properly not

press~d

before us all the points that were canvassed on behalf

of his client in the Court below. His contention, in

substance,

is that the rights of extradition in the

present

case should be regulated exclusively by the

pro­

visions of the Extradition Treaty that was entered into

between the 1'onk State and the British · Government

1950

Dt. Babu Ram

S~oa

v.

Tire State

Mulr.her:ita},

1950

-Or. Babu Ram Sahma

v.

The Stau

Muk/ie,j.a J.

584 SUPREME COURT REPORTS [1950)

on 28th of January, 1869, and was subsequently

modified

by a supplementary Treaty in the year 1887.

This Treaty, it is argued, has not been abrogated or

rendered ineffective in

any way by reason of the

merger of the Tonk State in the United State of

Rajasthan, and the decision of the

High

"Court

on this point is erroneous. According to the pro­

visions of this Treaty, no extradition is permis­

sible in · respect to offences of "extortion" and

"cheating" with which the appellant is charged and

the warrant of arrest issued

by the Political Agent is

consequently illegal and ultra vires. It is conceded

by

Sir Alladi that if section 7 of the Indian Extradi­

tion Act, 1903, is held to be applicable to the facts of

the present

case, the warrant of arrest issued bv the

Political Agent of Rajasthan could not

be

assaifed as

invalid or inoperative; but his contention is that sec­

tion 18 of the Extradition Act makes an express

reservation in

cases where Treaty rights exist and to

the extent that the provisions of

Chapter III of the

Extradition Act derogate from those of any Treaty

relating to extradition of offenders, the Treaty is

entitled to prevail.

To appreciate the merits of this contention, it may be

convenient to refer at this stage to a few sections of

the Indian Extradition Act of 1903 as well as to the

material provisions of the Extradition Treaty between

the Toni( State and the British Government which

have a bearing upon the present question.

Chapter III of the Indian Extradition Act deals

with surrender of fugitive criminals in

case of

States

other than foreign States and section 7, with which

this chapter opens, provides

as follows : " (I) Where an extradition offence has been com­

mitted 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 war­

rant, addressed to the District Magistrate of any

district in which such person

is believed to be, (or if

such person is believed to be in any Presidency town

S.C.R. SUPREME COURT REPORTS 585

to the Chief J>residency Magistrate of such town), for

his arrest and delivery at a place and

to a person for

authority indicated in the

W'iffitllt such Magistrate

shall act in pursuance

of such warrant and may give

directions accordingly." • • • •

The expression "extradition offence" has be.::n

defined in section 2(b) and means "any such offence

as is described in the First Scheme to the Act." The

First Schedule gives a catalogue of offences described

with reference co specific sections of the Indian Penal

Code and it includes offences punishable under sec­

tions 383 and 420 of the Indian Penal Code prima

facie, it seems therefore that all the conditions laid

down in section 7 of the Extradition Act are fulfilled

in the present

case. The warrant has been issued by

the Political Agent of a

State which is not a "foreign

State" as defined by the Act and the offences with

which the appellant

is charged are

"extradition of­

fences" as specified in Schedule I. Sir Alladi's con­

tention, as stated above, is that section 7, which is

in Chapter III of the Extradition Act, is controlled by

section 18 which lays down that "nothing in this

chapter shall derogate from the provisions of any

treaty for the extradition of offenders, and the pro­

cedure provided by any such treaty shall be followed

in any case to which it applies, and the provisions of

this Act shall

be modified

accordingly."

Turning now to the Extradition Treaty between the

Tonk State and the British Government, it will be

seen that the First Article of the Treaty provides for

extradition, where a British subject or a foreign sub­

ject commits a "heinous" offence in British territory

an<l seeks shelter within the limits of the Tonk State.

The Second Article deals with an offender who is a

subject

of the Tonk

State and having committed a

"heinous" offence within the State seeks asylum in

British territory; while the Third Article relates to a

person other than a Tonk subject who commits a

"heinous" offence within the limits of the Tonk State

a!lc seeks asylum in British territory. The conditions

1950

Dr. BabulRam

Saksma

v.

The State •

Mukherjea J.

1950

Dr.BU..R,,,,.

Sobtta

v.

T/w SloU.

586 SUPREME COURT REPORTS [1950]

under which extradition could be . had in all such cases

and the procedure to be followed ate· laid down in

article

4. Article 5 then gives a list of offences which

would

be deemed as coming within the category of

"hei­

nous" offences. It is not disputed that neithe{ "cheat­

ing" nor "extortion" are mentioned in this list. The

whole controversy, therefore, centers round the point

as

to whether in

view of the provisions of the Extradition

Treaty mentioned

above, extradition could legally be

made or demanded in respect of offences coming under

sections

383 and

420 of the Indian Penal Code which

are mentioned in the list

of offences

·speci1ied in Sche­

dule I to the Extradition Act but do not find a place

in article 5 of the Treaty. Could it be said that the

provisions of the Extradition. ,:\ct, derogate in this

respect from the Treaty between the Tonk State and

the British Government and consequently, the terms

of

the Treaty would override the statute as indicated in

section

18 of

the Extr:iR,ition Act?

The learned Attorney-General, whc appeared £01

the Goverhment of India, put forward a two-fold

argument in reply to the contention of Sir Alladi. He

argued in the first place, that section

18 of the Indian

Extradition Act has no application to the present

case

inasmuch as the Extradition

Treaty between the Tonk

State and the British Government, upon which the

appellant relies,

does not subsist and cannot be

enforced, at the present day. The other contention is

that even if the Treaty still subsists, there is nothing in its terms which prohibits extradition for offences

other than those described as heinous offences in

article 5. It is argued that "to derogate~· ~

"to . detract" or "to take away" and the Schedule to

the Extradition Act by mentioning certain offences,

which do not occur in the list of "heinous offences" as

given in the Treaty, cannot be said to have derogated

from the terms of the Treaty. Both these points were

fully argued on both sides and it is clear that if on

either

of these points a decision is reached adverse

· to

the appellant, the appeal

is bound to fail.

1~

'

S.C:R. SUPREl\1E COURT REPORTS 587

-. ,

So far as the first point is concerned, Mr. Setalvad t950

has drawn our attention to various political changes --,.

that have come over the Tonk State since the con-Dr.s~'t' R•m

clusion of the Extradition Treaty in 1869. In 1869 :'.no

Tonk was one ·of the Native States in India with a -Tl .. Stat•.

"separate'' political existence of its own and the Treaty

that was entered _into. in that year was meant to Mukhorje• J.

regulate exclusively the rights and obligations in

matters of extradition of offenders as between

the

Tonk State on

the one hand and the British Govern-

ment on the other. In 1887 there was a modification

of

the Treaty but it is not disputed that the modifica-

·

tion made certain alterations in the procedure which

are

not material for our present purpose.

The major political change with regard to

_all Indian

States which vitally affected their existing Treaties

with the British Government occurred on th" 15th of

August, 1947, when

India became an Independent

Dominion. Section 7 of

the Indian Independence Act

provided

inter alia that :

", (1) As from the appointed day-

· (b) The suzerainty of His Majesty over the Indian

States lapses, and with it, all treaties

and agreements

in

force at the date of the passing of this Act between

His Majesty and the rulers of

Indian

States ..........

As a result of this provisiOn, the Extraqition Treaty

between Tonk and the British Government must be

deemed to have lapsed with effect from

the 15th of

August, 1947

.. If matters stood there, obviously there

would be nothing left upon which section

18 of the

Indian Extradition Act could possibly operate. There

was,howevei:, a Standstill Agreement entered into

by

the Indian Dominion with the Indian States, the first

·article of which runs as follows :

"l. (1) Until new agreements in this behalf are

made, all agreements

and administrative arrangements

as to matters of common concern now existing between

the

Crown and any Indian State shall, in so far as may

be appropriate, continue as between the Dominion of

1950

Dr. Ba/Ju Ram

Sahma

v.

n. si.,,.

588 SUPREME COURT REPORTS (19501

India or, as the case may be, the part thereof, and the

State.

(2) In particular, and witfi2ut derogation from

the generality of sub-clause (1)

of this clause the

matters referred

to above shall include the matters

specified in the Schedule

to this

agreement."

The Schedule does mention "extradition" as one

of the matters

to which the Standstill Agreement is

applicable. This was certainly intended to be a

temporary arrangement and Mr. Setalvad argues that

as there was no Treaty in the proper sense of the term.

but only a substitute for it in the shape

of a temporary

arrangement, section

18 of the Extradition Act which

expressly mentions a Treaty cannot

be applicable.

While conceding that

prima facie there is force in the

contention, I think that this would

be taking a too

narrow view of the matter and I should assume for

the purposes of this

case that under the Standstill

Agreement the provisions

of the Treaty of 1869 still

continued

to regulate matters of extradition of

criminals as between the Tonk State on the one hand

and the Indian Dominion on the other till any new

agreement

was arrived at between them.

Though the Standstill Agreement

was to take effect

after the establishment

of the Indian Dominion, the

Instrument

was actually signed on 8th of August,

1947.

On the 16th of August, 1947, Tonk acceded

to the Dominion of India and one of the terms.

in the Instrument of Accession

is that the

"Ruler

accepts the pos1t1on that with regard to matters

specified in the Schedule to the Instrument, the·

Dominion Legislature would

be entitled to make laws

for the

State". "Extradition including the surrender of

criminals and accused persons

to parts of His Majesty's

Dominion outside

India" is one of the matters specified

in the Schedule. Thus the State gave up and surrender­

ed in favour of the Dominion Legislature its right to

legislate in respect to extradition after the date of

accession. Whether the existing Extradition Treaty

was

ipso facto abrogated by this Instrument of

Acces-­

sion is not so clear. Obviously, the Indian Dominion:

"

S.C.R. SUPREME COURT REPORTS 589

could pass any legislation it liked regarding matters

of extradition between the

Tonk

State, and any other

State, either Indian or Foreign. No such law

was, however, passed

by the Indian Legislature

except that

very recently under an Adaptation

Order the Extradition Act of 1903 has been

made applicable to States under Group B in the

Indian Constitution in which Rajasthan

is included.

It is to be noted that the Extradition Act itself, which

is made applicable to the United

State of Rajasthan,

contains an ~xpress provision m section 18 which

safeguards

ex1stmg treaty rights. It 1s somewhat

unusual that an Extradition Treaty would

be

subsist­

ing even after the State had acceded to India but we

have no materials before

us upon which we could

definitely hold that the Treaty has been expressly

superseded or abrogated

by the Indian Legislature.

The next important thing

is that in April, 1948,

there was a Covenant entered into by the Rulers of

nine

States including Tonk, by which it was agreed

by and between the covenanting parties that the

territories of these nine States should be integrated

into one State by the name of the United State of

Rajasthan. This

was done with the concurrence of

the Dominion of India. Later on, on 12th of May,

1949, Mewar also became a party to this Covenant

and the United

State of Rajasthan was reconstituted

by the integration of the territories of all the ten States.

By the Covenant of merger, the Covenanting

States

aweed to unite and integrate their territories in one

State known as the United State of Rajasthan and to

have a common executive, legislature and judiciary.

The Rulers of all the

States became members of the

Council of Rulers and the President

was designated

as the Raj Pramukh of the United

State. Article VI

of the Covenant of Merger runs as follows :

"(I) The Ruler of each Covenanting State shall,

as soon as practicable and in any event not later than

the first day of May,

1948, make over the

administra­

tion of his State to the Raj Pramu~h; and there­

upon-

1950

Dr. Bab11 Rarrr

Sakseno.

Y.

The Stau.

Mukher.fea].

1950

Dr. Babu Ram

Saksoia

v.

Mu.t,.,,j.a ].

590 SUPREME COURT REPORTS [1950]

(a) all rights, authority and jurisdiction belonging

to the Ruler which appertain or are incidental to the

Government of the Covenanting State shall vest in

the United State and shall hereafter be exercisable

only

as provided by this Covenant or by the

Con­

stitution to be framed thereunder ;

(b) all duties and obligations of the Ruler

pertaining or incidental to the Government of the

Covenanting State shall devolve on the United Sta~

and shall be discharged by it ; and

( c) all the

assets and liabilities of the Covenanting

State shall be the assets and liabilities of the United

State."

The question now is how far was the Ex­

tradition Treaty between the Tonk State and the

British Government affected

by reason of the

mer­

ger of the State into the United State of Rajasthan.

When a State relinquishes its life as such through

incorporation into or absorption

by another

State either

voluntarily or

as a result of conquest or annexation,

the general opinion of International Jurists

is that the

treaties of the former are automatically terminated.

The result

is said to be produced by reason of complete

loss of personality consequent on extinction of

State

life('). The cases discussed in this connection are

generally

cases where independent

States have ceased

to

be such through constrained or voluntary absorption

by another with attendant extinction of the former's

treaties with other

States. Thus the forceable in­

corporation of Hanover into the Prussain Kingdom

· destroyed the previous treaties of Hanover. The

admission of Texas into the United States of America

by joint resolution extinguished the. Treaties of thr

Independent Republic of Texas('). The position is

the same when Korea merged into . Japan. According

to Oppenheim, whose opinion has been relied upon by

Sir Alladi, no succession of rights and duties ordinarily

takes place in such

cases, and as political and personal

treaties presuppose the existence of a contracting

State,

(1) Vide Hyde on International Law, Vol. III, p. 1529.

(

1

) Vidt Hyde on International Law, Vol. Ill, p. 1531,

S.C.R. SUPREME COURT REPORTS 591

th~y are altogether extinguisheJ. It is a debatable

pomt whether

succession takes place in cases of treaties

relating to commerce or extradition but here again the · majority of writers are of opinion that they do not

survive merger or annexation (1 ).

The remarks quoted above do not, however, seem

quite appropriate to a · case of the present description.

Here there

was no absorption of one

State by another

which would put an end to the State life of the former

and extinguish its personality. What happened here

was that several

States voluntarily united together and

integrated their territories

so as to form a larger and

composite

State of which every one of the covenanting

parties

was a component part. There was to be one

common executive, legislature and judiciary and the

Council of Rulers would consist of the Rulers

of all the

Covenanting States. It may not

be said, therefore,

that the Covenanting

States lost their personality

altogether and it

is to be noted that for purposes of

succession of Ru!ership and for counting votes on the

strength of population and other purposes the Covenant

of Merger recognises a quasi-separation between the

territories of the different States. But although such

separation exists for

some purposes between one

State

territory and another. it is clear that the inhabitants

of all the different States became. from the date of

merger, the subjects

of the

United State of Rajasthan

and they could not

be described as subjects of any

particular

State. There is no such thing as subject of

the Tonk. State existing at the present day and the

Ruler of Tonk cannot independently and in his own

right exercise any form of sovereignty or control over

the Tonk territory.

The Government, which exercises

sovereign powers,

is only one, even though the different

Rulers may have a

voice in it. It seems to us that in

those altered circumstances the Extradition Treaty

of

1869 has become entirelv incaoable of execution. It is

not possible for the

T~nk St;te, which is one of the

contracting parties to act m accordance with the terms

of the treaty, for

it has no longer any independent

(')

Oppenhein on International Law. Vol. I, p. 152.

1950

Dr. Babu Ram

Saksma

v.

The Stale.

Mulclrerjea]

1950

Dr. Babu Ra,.

Salrs.na

v.

Tl14 Stat"

592 srJPREME COURT REPORTS [1950]

authority or sovereign rights over the Tonk territory

and can neither make nor demand extradition. When

as a result of amalgamation or merger, a

State loses

its full and independent power of action over the

subject-matter of a treaty previously concluded, the

treaty must necessarily lapse(

1

). It cannot be

said that the sovereignty of the Tonk State in this

respect

is now vested in the

United State of Rajasthan.

The authority,

so far as extradition was concerned, was

already surrendered

by the Tonk

State in favour of

the Dominion Government

by the Instrument of

Accession. But even assuming that these treaty rights

could devolve upon the

United State of Rajasthan by

reason of article 6 of the Covenant of Merger, the

latter, it

seems to me, could be totally incapable of

giving

effect to the terms of the treaty. As has been

said· already, there could be no such thing as a subject

of

the Tonk State at the present moment and article

2 of the Treaty which provides for extradition of Tonk

subjects

accused of having committed heinous offences

within

Tonk territory and seeking asylum elsewhere

would

be wholly infructuous. The

United State of

Rajasthan could not possibly demand extradition on

the

basis of this article, and if reciprocity, which 1s

the essence of an Extradition Agreement, is gone, the

Treaty must

be deemed to be void and inoperative.

The decision in Terlinden v.

Ames(•) which was relied

upon

by

Sir Alladi in course of his arguments, rather

fortifies the

view that I have taken. The question

there

was whether an Extradition Treaty between

Prussia and the

U nitcd States of America, wJ1ich was

entered into in

1852, could be given effect to after the

incorporation

of Prussia into the German Empire.

The question

was answered in the affirmative. It was

pointed out

inter alia that the Constitution of the

German Empire left sufficient independent power and

sovereignty to the States composing the confederation

to enable them to act upon these treaties and

il was

observed

by Chief Justice Fuller, who delivered the

opinion

of the Court, that where sovereignty in respect

(1)

VUle Hyde on International Law, VoL III, p. 153.'1.

(') 184 u. s. 270.

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