P (PLP)

The position however is as follows :‑

The applicant, being suspect of murder in one part of His Majesty's dominions, has been found in another part. Hence the Fugitive Offenders Act applies. The Act itself mentions only two methods of arrest (a) by endorsed warrant, (b) by provisional warrant, but the arrest without warrant was made by the police under the specific provision of section 54 (seventhly) of the Criminal Procedure Code which expressly refers to the Fugitive Offenders Act. Just as the Pakistan Extradition Act has provisions supplemental to the Imperial Act, so this provision of the Criminal Procedure Code is supplemental to the Imperial Act. The police produced the applicant before a Magistrate. The Magistrate is empowered under section 19 of the Pakistan Extradi tion Act to issue a provisional warrant, and there is no question of his jurisdictional competency to issue such orders for detention as a Magistrate may make under section 5 of the Imperial ` Act. A doubt, however, later occurred to us, arising from sec tion 23 of the Pakistan Extradition Act. The preamble to the Act states, inter alia. " Whereas it is expedient to provide for the convenient administration in British India of the Extradition Acts 1870 and 1873, and of the Fugitive Offenders Act 1881." Chapter I is preliminary, Chapter II deals with Foreign States, Chapter III with non‑Foreign States (i.e., what were once called Native States), Chapter I V with his Magesty's dominions, Chapter V with offence at sea, Chapter VI with commissions and Chapter VII is " Supplemental ". Section 23 falls in Chapter VII, and reads as follows :‑ " 23.' Notwithstanding anything in the Code of Criminal Pro cedure, Code 1898, any person arrested without an order from a Magistrate and without a warrant, in pursuance of the provisions of section 54, clause seventhly, of, the said code, may, under the orders of a Magistrate within Act V of 1898, the local limits of whose jurisdiction such arrest was made, be detained in the same manner and subject to the same restrictions as a person arrested on a warrant issued by ,such Magistrate under section 10." Section 10 falls within Chapter III, and reads as follows :‑

" 10 (1) If it appears to any Magistrate of the first class or any Magistrate empowered by the Local Government in this behalf that a person within the local limits of his jurisdiction is accused or suspected of having committed an offence in any State not being a Foreign State' and that such person may lawfully be surrendered to such State, or that a warrant may be issued for his arrest under section 7, the Magistrate may, if he thinks fit, issue a warrant for the arrest of such person on such information or complaint, and on such evidence as would, in his opinion‑justify the issue of a warrant if the offence had been committed within the local limits of his jurisdiction. (2) The Magistrate shall forthwith report the issue of a warrant under this under this section, if the offence appears or is alleged to have been committed in the territories of a State for which there is a Political Agent to such Political Agent, and in other cases to the Local Government. (3) A person arrested on a warrant issued under this section shall not without the special sanction of the Local Government be detained more than two months, unless within such period the Magistrate receives an order made with reference to such person in accordance with the procedure prescribed by section 9, or a warrant for the arrest of such person under section 7. (4) In the case of a person arrested or detained under this section, the provisions of the Code of Criminal Procedure for the 'time being in force relating to bail shall apply in the same manner as if such person were accused of committing in British India the offence with which he is charged." Sections 7 and 9 referred to in section 10 also fall within Chapter III. We thought that the position of section 23 in a separate chapter in an Act of which the preamble is as above quoted requires section 23 to apply not merely to cases falling under Chapter III, but also to cases under the Fugitive Offenders Act, and that, there fore, the special sanction of the Central Government is necessary for detention for more than two months. We therefore set the case down for further argument with notice to the learned Advocates of the point. We still consider that section 23 applies to this case, and see no reason to limit its application to Chapter III, of the Extradition Act. The learned Advocate‑General informed, us that the sanction of the Central Government was given after we communicated to him this question as to section

23. We think, however, that we have to consider the legality of the detention of the applicant as the position stands to day, and not as it stood at the time of the filing of the petition. There is no condition precedent or impedi ment to the grant of sanction by the Central Government, and as a result we therefore think that that sanction is sufficient to sup port the continued detention of the applicant, though we consider the detention of the applicant was illegal between the date of the expiry of the two months following his arrest and the date of giving the sanction. But that sanction now having been given the present detention is legal. The application is, therefore, dismissed. A. H. Application dismissed.