P L D 1962 Dacca 119 (PLP)

MURSHED, J.‑This Is an application for the issue of a writ of habeas corpus, on behalf of one Jogesh Chandra Majumdar, son of late Har Chandra Majumdar of Bagmara, within Police Station Parasuram, in the District of Noakhali. At the time when the application was made the petitioner was detained in the Feni Jail. The petition is at the instance of a brother‑in‑law of the detenu, by the name of Chandra Sekhar Shome of Mohammadpur within the same police station and district as those of the detenu. It has been stated in the petition that the said detenu, Jogesh Chandra Majumdar, was arrested on the 14th of March 1961, by the police on charge of contravention of the provisions of the Pakistan (Control of Entry) Act, 1952. He was thereafter produced before the Sub‑Divisional Magistrate of Feni, Noakhali, who has been Impleaded as respondent No. 3 in this application. The detenue, Jogesh Chandra Majumdar, was enlarged on‑ bail by the respondent No. 3, namely, the Sub- Divisional Magistrate of Feni, and the order was made in respect of a case which was started against the detenu and numbered as G. R. Case No. 135/15‑T of 1961. A few days thereafter, on the 17th of March 1961, the said detenu was sent for by the Sub‑Divisional Magistrate through a lawyer and was taken into custody on the allegation that he is a fugitive from India where there is a case pending against him on a charge of defalcation. The detenu prayed for being enlarged on bail, but this was rejected by :he said Sub‑Divisional Magistrate (Respondent No. 3). Thereafter the detenu, Jogesh Chandra Majumdar, applied for adjournment of the G. R. Case No. 135/15‑T to enable him to move this Court for a transfer of the case. The Sub‑Divisional Magistrate passed the following order on such application on the 6th of April 1961 ". . . He has stated that I have cancelled his bail inspite of weighty reasons and hence he has developed the apprehension that he may not get justice by this Court. He has made some mistake. I cannot and hence have not cancelled his bail in this case which is bailable. Perhaps he has confused the issue. I have detained him in prison on the charge that he ran away from India where he has a charge of defalcation of public money. However, his sentiments must be respected. I adjourn the case to 6‑5‑61 . . . . ." Immediately the Magistrate passed a separate order on the same date, i.e., on the 6th of April 1961 to the effect that the said detenu, Jogesh Chandra Majumdar, would be transported to Indian border at Belonia on the allegation that he had a charge of defalcation pending against him there. The Sub‑Divisional Magistrate purported to pass the aforesaid order on an alleged letter sent to him from the S. D. O., Belonia in West Bengal in India. He proceeded to pass the following order: "Seen D. O. No. 154/SDO/BEL/SC/27/61, dated 31‑3‑61, which confirms that Jogesh Chandra Majumdar has a charge of defalcation in his Sub‑Division. Our charge against him relates to the violation of Pass- Port laws. This is of course a minor offence. Still we tried our best to complete our trial here and then to send him to S. D. O. Belonia. But Jogesh Chandra has started delaying tactics and put in petition under section 526, Cr. P. C. That means that he will delay our case inordinately. In the interest of good relation between us and India we should send the man to Indian authority where he has the graver charge before we complete our case. S. D. P. O. will please make the necessary arrangement for escorting him to Belonia by 8‑4‑

61. He is requested to inform me of the date and time when he will be transported to Indian border at Belonia, so that I can inform S. D. O. Belonia, in advance. I am sure the Indian authority will be pleased to send him back to us after completion of their case, so that we can go ahead with our case against hip." It will be seen that by virtue of the aforesaid order the detenu Jogesh Chandra Majumdar was lodged in the Feni Jail pending the execution of the order passed by the Sub‑Divisional Magistrate of Feni in bodily transporting him outside the border of Pakistan in order to be made over to the S, D. Q. Belonia, India. In these circumstances, the petition before us was moved and the present Rule was obtained. As the procedure adopted by the S. D. O., Feni, was most extraordinary, we issued notice upon the State to appear before us in this case through a lawyer and Mr. Abdul Hakim learned Deputy Legal Remembrancer, has appeared before us in pursuance of the said order. Mr. Abdul Hakim has informed us that no mutual o reciprocal treaty obligation or arrangement exists between India and Pakistan with respect to extradition proceedings and to the A handing over of fugitives from justice. In these circumstances, we fail to see how extradition proceedings can at all be Instituted with respect to' Jogesh Chandra Majumdar (the detenu). It is quite patent that the learned Sub‑Divisional Magistrate is totally unconscious of the provisions of the various Extradition Acts under which proceedings have to be taken before an alleged offender can be made over to a foreign territory or any state outside Pakistan. The relevant enactments, amongst others, are the Extradition Act, 1870 (33 & 34 Vic., C. 52), which is a British Statute applicable to India as well as to Pakistan. This was subsequently amended by the Extradition Act, 1873 (36 & 37 Vic. C. 60)‑another British Statute applicable to India and Pakistan. (hereafter came the Extradition Act of 1903 (Act XV of 19;13) which also applies Lo Pakistan. Even a casual perusal of these statutes will show the various procedures under which a person, placed In the circumstances as the detenu Jogesh Chandra Majumdar is alleged to be, cannot be dealt with in the manner in which the Sub‑Divisional Officer of Feni purported to act. The various enactments quoted above are not applicable to the case before the said Sub‑Divisional Officer. Even if these Acts are applicable to this case, and we hold that they do not apply, the Sub‑Divisional Officer is by no means empowered to pass an order .for the transportation of an alleged criminal to a territory outside the borders of Pakistan. It will be seen from the order, which has been passed by the Sub‑Divisional Officer, that he was probably actuated by an ethical consideration of the matter before him ; but he should 8 not forget that he is an officer who has been vested with con siderable powers in various matters and it is his paramount duty to act according to law. The facts of this case are very simple, and from what we have already stated, there is no manner of doubt that the detention of the said Jogesh Chandra Majumdar is illegal. In the circumstances of this case, the order of the S. D. O. directing that the detenu should be deported to India is most astonishing and the Sub‑Divisional Magistrate should not have embarked upon such an illegal course without consulting the various enactments, to which reference has already been made above, and without ascertaining his own powers, if any, there under. The Sub‑Divisional Magistrate did not purport to act under the various statutes relating to extradition proceedings and it seems that he is not aware of them. It is obvious that he was under the impression that he was vested with some undefined and indefinite executive powers which entitled him to pass the order that he had made. He lost sight of the fact that even a criminal and a fugitive from justice is not an out‑law, devoid of any right whatsoever. An order passed even against such a fugitive requires the sanction of law. For reasons stated above, we make the Rule absolute and direct that the detenu, Jogesh Chandra Majumdar, be set at liberty forthwith, if not wanted in any other connection. S. D. AHMED, J.‑I agree. K. B. A. Rule made absolute.