The State Of Madras vs C. G. Menon And Another

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Criminal Appeal No. 33 of 1953

Decision Date: 19 May 1954

Coram: Mehar Chand Mahajan, Ghulam Hasan, Natwarlal H. Bhagwati, B. Jagannadhadas

The appeal concerned the State of Madras versus C. G. Menon and another, decided on 19 May 1954 by the Supreme Court of India. The opinion was authored by Justice Mehar Chand Mahajan, who sat with Justices Ghulam Hasan, Natwarlal H. Bhagwati and B. Jagannadhadas. The petitioner was the State of Madras and the respondents were C. G. Menon together with a second accused. The judgment was reported in the 1954 All India Reporter at page 517 and in the 1955 Supreme Court Reports at page 280, with subsequent citations in later law reports. The case involved the application of sections 12 and 14 of the Fugitive Offenders Act 1881 to India after the Constitution had come into force, and it examined whether the Indian Extradition Act 1903, adapted under article 372 of the Constitution, retained the effect of those British statutes. The headnote explained that after independence India became a sovereign democratic republic and could no longer be described as a British possession. Consequently, India could not be treated as a territory falling within the scope of section 12 of the Fugitive Offenders Act, and the extradition of persons who had taken asylum in India after committing offences in other British possessions required a bilateral arrangement and appropriate legislation. The Court observed that the Indian Extradition Act, while adapted under article 372, did not incorporate any provisions of the Fugitive Offenders Act, which remained an unrepealed British statute and therefore its sections 12 and 14 did not apply to India.

The matter arose in criminal appellate jurisdiction as Criminal Appeal No. 33 of 1953, filed under article 132(1) of the Constitution challenging a February 20 1953 judgment of the Madras High Court. That judgment had held that section 14 of the Fugitive Offenders Act was void for being inconsistent with the Constitution because it was discriminatory in effect. The State of Madras, represented by the Solicitor-General for India and the Advocate-General for Madras, assisted by counsel, acted as appellant. Counsel for the respondents, assisted by junior counsel, represented the accused. The Union of India intervened through the Solicitor-General for India, also assisted by counsel. The Supreme Court hearing concluded on 19 May 1954, and the judgment was delivered by Chief Justice Mehar Chand Mahajan. In delivering the opinion, the Court examined whether the challenged provision of the Fugitive Offenders Act could be sustained in light of the constitutional framework and the status of India as a sovereign nation, ultimately finding that the provision could not be applied to India.

The Menons, a husband and wife, were seized and taken before the Chief Presidency Magistrate at Egmore, Madras, in accordance with warrants of arrest that had been issued under the Fugitive Offenders Act of 1881. The husband, Mr. C. G. Menon, was a barrister-at-law who at that time practiced as an advocate and solicitor in the Colony of Singapore. The wife, Mrs. C. G. Menon, was an advocate of the Madras High Court and, until very recently, had served as a member of the Legislative Council of the Colony of Singapore. Both individuals arrived in India sometime after July 1952. On 22 August 1952 the Government of Madras sent to the Chief Presidency Magistrate, Madras, copies of the correspondence that had passed between the Government of India and the Colonial Secretary of Singapore. Those communications requested that the Government of India assist in arresting the Menons and returning them to Singapore under warrants that had been issued by the Third Police Magistrate of Singapore. The charges against Mr. Menon consisted of several counts of criminal breach of trust, while Mrs. Menon was charged with abetting those offences. When they were produced before the Presidency Magistrate, the Menons challenged the legality of their arrest. They asserted their innocence and argued that, as Indian citizens, they could not be surrendered because the warrants concerned matters of a civil character that had been given a criminal guise solely to harass them for political reasons, to prejudice the court against them, and that the warrants had been issued in bad faith. They further contended that the provisions of the Fugitive Offenders Act invoked to pursue them were repugnant to the Constitution of India and therefore void and unenforceable. The Presidency Magistrate observed that the continued existence of the Indian Extradition Act of 1903, together with Chapter IV of that Act, suggested that the President of India might have intended to give effect to the Fugitive Offenders Act of 1881. However, because the Act had not been suitably adapted or modified, it became impossible to give effect to that intention; the existing provisions were inconsistent with, and repugnant to, the sovereign status of the Indian Republic. Nevertheless, invoking section 432 of the Criminal Procedure Code, as amended by Act XXIV of 1951, the Magistrate referred the matter to the High Court and framed two questions of law: (1) whether the Fugitive Offenders Act of 1881 applied to India after 26 January 1950, when India became a sovereign democratic republic; and (2) whether, even if it applied, any part of it—particularly Part II—was repugnant to the Constitution of India and therefore void or inoperative. The High Court answered the first question by holding that section 14 of the Fugitive Offenders Act conflicted with the fundamental right to equality before the law guaranteed by article 14 of the Constitution. Consequently, that section was declared void to the extent of the inconsistency and unenforceable against the petitioners. Having resolved the second question in favour of the respondents, the Court found that a further answer to the first question was unnecessary.

In this case a certificate under article 132(1) of the Constitution granting leave to appeal to the Supreme Court was issued to the State of Madras, and the Union of India was permitted to intervene at its request. The solicitor-general appearing for both the intervenor and the State of Madras acknowledged that the Fugitive Offenders Act of 1881 had never been formally adopted by a presidential order and that the Indian Parliament had never enacted any legislation on the same subject. Nevertheless, he argued that the failure to adapt the impugned Act did not determine whether the Act remained operative as law within the territory of India after the Constitution came into force. He relied upon article 372(1) of the Constitution, which provided that, notwithstanding the repeal of certain enactments, all law existing in India immediately before the Constitution’s commencement would continue until altered, repealed, or amended by a competent authority. He submitted that the Fugitive Offenders Act was precisely such law, having been in force at the moment the Constitution began, and that it therefore persisted under article 372(1). He further contended that the adaptations made by the Indian Extradition Act of 1903, by implication, kept the Fugitive Offenders Act and its various provisions alive. To determine whether Part II of the Fugitive Offenders Act—specifically sections 12 and 14, which formed the basis of the Menons’ arrest—remained effective after the Constitution’s commencement, it was necessary to examine the relevant provisions of the Act. The Act, originally enacted by the British Parliament, was divided into four parts and comprised forty-one sections. Part I dealt with offences listed in section 9, and section 5 of that part prescribed that a fugitive who was apprehended should be brought before a magistrate who would hear the case with the same jurisdiction and powers as if the offence had been committed within his own jurisdiction. The section further required that, when an endorsed warrant for the fugitive’s apprehension was duly authenticated and when the evidence presented raised a strong or probable presumption that the fugitive had committed the offence specified in the warrant, the magistrate must commit the fugitive to prison pending his return and must immediately send a certificate of committal and a report of the case to the appropriate authority, whether that be a Secretary of State in the United Kingdom or a Governor in a British possession.

The magistrate, after receiving a report of the case that he considers appropriate, must send that report to the Secretary of State when the case arises in the United Kingdom, and must send it to the Governor of the relevant British possession when the case arises in a possession. Section 12, which opens Part II of the Fugitive Offenders Act, states that the provisions of this part shall apply only to groups of British possessions whose contiguity or other circumstances make it advisable for Her Majesty to extend the same rules to them. The section further provides that Her Majesty may, by Order in Council, from time to time, designate a particular group of British possessions to which Part II will apply, and that by the same or any later Order she may exempt certain offences from the operation of Part II or impose conditions, exceptions, and qualifications that are deemed appropriate. Section 14, which is directly relevant to the respondents, sets out that the magistrate before whom a person apprehended under a warrant is presented may, if he is satisfied that the warrant has been properly authenticated in accordance with this Act, that it was issued by a person with lawful authority, and that, upon taking an oath, the prisoner is indeed the individual named or described in the warrant, order the prisoner's return to the British possession where the warrant was issued. For that purpose the prisoner shall be delivered into the custody of the individual or individuals to whom the warrant is addressed, held in custody, and conveyed by sea or any other means to the possession in question, where he shall be dealt with according to the law as if he had been apprehended there. Such an order for return may be made by a warrant signed by the magistrate and may be executed in accordance with the terms of that warrant. A comparison of the provisions of Part I and Part II reveals a clear distinction: under Part I, which governs certain offences, a fugitive who is apprehended may be committed to prison and surrendered only if the magistrate is convinced, based on the evidence before him, that there is a strong or probable case against the fugitive. In contrast, where Part II governs the fugitive, the magistrate is not required to reach such a finding before ordering surrender. Consequently, the two parts prescribe substantially different procedures for surrendering fugitive offenders. The overall scheme of the Fugitive Offenders Act therefore classifies fugitive offenders into different categories and assigns a specific procedural regime to each category. This categorisation is particularly relevant to individuals who have committed offences in the United Kingdom, in British dominions, or in foreign territories where the Crown exercises jurisdiction.

In the context of the Fugitive Offenders Act, the Court explained that the procedure set out in Part I of the Act must be observed before any individual can be surrendered, and that surrender is not permitted unless a prima-facie case against the person has been established. The Court further noted that, except in unusual circumstances, extradition to foreign states is normally conducted under treaties or other bilateral arrangements made between the states concerned. When the United Kingdom sought to extradite offenders to the native states of India, the process was governed by the Indian Extradition Act, which likewise required that a prima-facie case be demonstrated before a person could be surrendered.

The Court observed that extraditions that occurred between British possessions themselves were treated differently under the Act. Those territories were grouped together based on their geographical contiguity and other factors by means of an Order in Council, which treated the grouped territories as a single jurisdiction for purposes of extradition. The Court explained that such grouping could be altered, modified, or have its conditions of extradition changed by further Orders in Council. An Order in Council dated 2 January 1918 specifically listed the British possessions and protected states that were to be considered together with British India for the application of Part II of the Fugitive Offenders Act. The territories included in that order were Ceylon, Hong Kong, the Straits Settlements, the Federated Malay States, Johore, Kedah and Perlis, Kelantan, Trengganu, Brunei, North Borneo and Sarawak.

The Court then recited the wording of the 1918 Order in Council. It began by referring to an earlier order issued by Her Majesty Queen Victoria on 12 December 1885, which had applied Part II of the Fugitive Offenders Act, 1881, to a group of British possessions identified as Her Majesty’s East Indian Territories, Ceylon and the Straits Settlements. The later orders of 1916 and 1917, known as the Straits Settlements and Protected States Fugitive Offenders Orders in Council, declared that the Act should be applied as if the protected states listed in the schedule to the 1885 order were themselves British possessions. Because of the close proximity of these territories and the frequent communication among them, the Court noted that it was considered expedient by His Majesty and conducive to better administration of justice to apply Part II of the Act to the aforementioned British possessions and protected states, a request that had been made by the rulers of those states.

Finally, the Court explained that, exercising the powers conferred by the Fugitive Offenders Acts of 1881 and 1915, His Majesty, acting with the advice of the Privy Council, issued a further Order in Council. That Order declared that, effective from 1 February 1918, the earlier order of 12 December 1885 would be revoked, without affecting any lawful acts previously carried out under it or any proceedings that had begun before that date. Consequently, Part II of the Fugitive Offenders Act, 1881, was to apply to the entire group of British possessions and protected states enumerated in the order, namely British India, Ceylon, Hong Kong, the Straits Settlements, the Federated Malay…

The later Order in Council dated 29 July 1937 incorporated Burma, which had ceased to be part of British India, into the group of British Possessions and Protected States that had been mentioned in the earlier Order in Council governing the states of Johore, Kedah and Perlis, Kelantan, Trengannu, Brunei, North Borneo and Sarawak. From the provisions of the Fugitive Offenders Act and from the language of the Orders in Council it was clear that British Possessions that were contiguous and that enjoyed frequent inter-communication were to be treated, for the purposes of that Act, as a single integrated territory. Accordingly a summary procedure was adopted for the extradition of persons who had committed offences in any of those integrated territories. Because the substantive laws prevailing in those possessions were substantially the same, the usual requirement that a fugitive could not be surrendered unless a prima facie case was established against him was dispensed with. By contrast, the Indian Extradition Act of 1903 continues to require a prima facie case before a person may be extradited.

The legal situation underwent a fundamental change when India became a sovereign democratic republic. After the attainment of independence and the commencement of the new Constitution, India could no longer be characterized as a British possession, nor could it be grouped with other British possessions by any further Order in Council. In effect, India became a foreign territory with respect to the remaining British possessions, and any surrender of fugitives who had taken asylum in India after committing offences in those British territories could only be effected through a bilateral arrangement between the sovereign Republic of India and the British Government, an arrangement that would have to be given effect by appropriate legislation. To date, Parliament has not enacted any statute on this subject, and no such bilateral arrangement has been reported.

The Indian Extradition Act of 1903 has been retained and adapted, but the Fugitive Offenders Act of 1881, which was enacted by the British Parliament, has remained largely untouched. The provisions of that Act could apply to India only if they were incorporated, with suitable modifications, into a statute passed by the Indian Parliament, such as an Indian Fugitive Offenders Act. In the absence of any such legislation, it is difficult to argue that sections 12 or 14 of the Fugitive Offenders Act retain any force in India by virtue of article 372 of the Constitution. The entire basis for the applicability of Part II of the Fugitive Offenders Act has disappeared; India is no longer a British possession and no Order in Council can now group it with other British possessions. Consequently, the countries that remain British possessions and that were previously included in the same group as British India may legitimately refuse to reciprocate with India in the surrender of fugitive offenders, on the ground that, notwithstanding article 372 of the Constitution, India is no longer a British possession and therefore the Fugitive Offenders Act does not apply to it.

In the facts before the Court, the Fugitive Offenders Act of 1881 was held not to apply to India, and there was no obligation, in the absence of a new treaty, for the parties to surrender their nationals who might have committed offences extraditable to India. The Court noted that several other members of the group originally created by the Act had also attained independence. Under section twelve of the Act, the sovereign was not authorised by any Order in Council to change the character or composition of that group, nor to take any action prescribed by the provision. Consequently, the Court found that article three hundred and seventy-two of the Constitution could not rescue the statute, because the grouping it created was incompatible with the notion of a sovereign democratic republic. The Court further observed that the political circumstances which existed when Part II of the Fugitive Offenders Act, 1881, was enacted had been completely transformed, and that without radical legislative amendment the old Act could not be fitted to the present conditions. On that basis the Court agreed with the tentative view expressed by the Presidency Magistrate, and, although the High Court had not answered the first question referred to it, the matter could be disposed of on this ground alone.

The Court then turned to the argument advanced by the counsel for the Government, who claimed that because the Indian Extradition Act of 1903 incorporated references to the English Act, the whole Fugitive Offenders Act, including Part II, had been adapted by the President. The Court rejected that contention as unsupported. It explained that the scheme of the Indian Extradition Act, although founded on the English statute, was fundamentally different and did not preserve any provision of Part II of the Fugitive Offenders Act, 1881; therefore no adaptation of the 1881 Act existed within the four corners of the 1903 Act. In the circumstances the Court could not apply the sections of the Fugitive Offenders Act to the situation that arose after the Constitution of India came into force. Moreover, clause twenty-eight of the Adaptation of Laws Order, 1950, could not be invoked in this case. The Court held that it was unnecessary to decide whether the former British possessions, which had been grouped with India under Part II of the Fugitive Offenders Act, should now be treated as foreign states for purposes of surrender under the Indian Extradition Act or any other law, because the proceedings against the respondents had been specifically undertaken under section fourteen of the Fugitive Offenders Act, 1881. The Court emphasised that it does not decide questions that have not been properly raised before it or that do not arise directly for determination. Accordingly, for the reasons set out above, the Court upheld the decision of the High Court, though on a ground different from that on which the High Court had decided.

In this case, the Court observed that the reasoning applied by the appellate tribunal differed from the reasoning that the lower Court had employed when it issued a decision that was favourable to the respondents. Because the appellate decision was founded on a different basis than the one that had led to the earlier favourable ruling for the respondents, the Court concluded that the appeal did not succeed. Accordingly, the Court held that the appellant could not obtain any relief and that the appeal must be rejected. The Court therefore ordered that the appeal fail and that it be dismissed. By dismissing the appeal, the Court effectively left in place the previous order of the lower Court, which had been decided in the respondents’ favour, and affirmed that no further judicial intervention would be granted in the matter. The dismissal of the appeal thus marked the final adjudication on the disputed issues, and the Court’s order terminated the proceedings with the appeal being refused.