Holding

The 1931 U.S.–India extradition treaty, as extended by the 1942 Order, remains in force, the Extradition Act, 1962 applies throughout India, and the procedural requirements for extradition have been met.

Summary

George Kutty Kuncheria, an Indian citizen, was arrested in Kerala following a U.S. request for his extradition on charges of embezzlement and related offences. The United States supplied authenticated documents, and the Indian Government ordered a magisterial inquiry under the Extradition Act, 1962. The appellant challenged the extradition on several grounds, including the alleged lapse of the 1931 U.S.-UK treaty after Indian independence, the lack of authority of the Governor‑General to accede to treaties, the inapplicability of the Fugitive Offenders Act, and procedural deficiencies under the treaty. The Supreme Court held that the 1931 treaty, as extended to India by the 1942 Order, remained operative, that treaty‑making is a prerogative of the Head of State not the Governor‑General, and that the Extradition Act applies to the whole of India, including former native states. It further ruled that the procedural requirements, including evidence production within two months, were satisfied and that the special provisions of the Extradition Act override the general provisions of the Criminal Procedure Code. Consequently, the Court dismissed the appeals and the writ petition, ordering the magistrate to complete the inquiry.

Issues considered

The validity of the 1931 extradition treaty between the United States and Great Britain as extended to India by the 1942 Order after Indian independence.
Whether the Governor‑General of India had authority to accede to treaties on behalf of India.
The effect of the Indian Independence (International Arrangements) Order, 1947 and the Adaptation of Laws Order, 1950 on the 1942 Order and the treaty.
The applicability of the Fugitive Offenders Act, 1881 to India post‑independence.
The territorial scope of the Extradition Act, 1962/1963, especially concerning former native states like Kerala.
Whether the procedural requirement of producing sufficient evidence within two months under Article 11 of the treaty was complied with.
The jurisdiction of the magistrate appointed under Section 5 of the Extradition Act in light of the Criminal Procedure Code provisions.
The distinction between treaty‑making (executive act) and treaty implementation (legislative act).

Legislation cited

Code of Criminal Procedure, 1973s. 177, s. 188, s. 190
Constitution of Indias. Article 372(1)
Extradition Act, 1962s. 10, s. 2(g), s. 5
Fugitive Offenders Act
Government of India Act, 1935s. 11
Indian Independence Act, 1947s. 18(3)

Subjects

extraditiontreaty successionmunicipal lawGovernor‑General authorityFugitive Offenders ActExtradition Act 1962Indian Independence Actprocedural compliancejurisdictionevidence production

Judgment

ROSILINE GEORGE A
v.
UOI & ORS.

OCTOBER 11, 1993

[KULDIP SINGH AND S.P. BHARUCHA, J.] B

In,ternational Law-Extradition-f'rocedure to be followed-Held
Municipal law detennines procedure. Surrender of fugitive criminals- Held:
not without request, fonnal authority or by .statute or treaty.
International Treaties--Rights and obligations-Laps,; of-Held : a
c
political question dependent upon intention of concerned state-No automat-
ic lapse on external change of sovereignity over the territo~Treaties not.
come to an end on change of Government.
Fugitive Offender Act 1881-Not applicable to British possessions. D
Treaty-W'ho can enter iiito.

Held: Governor General of India had no authority to enter into treaties
on behalf of India and it was only the prerogative of Head of a State to do
so. E
,Treaties:
Held: Not the subject matter of Indian Independence (International
Arrangements) Order 1947 which only dealt with Municipal Law.
F
Existing Indian Laws under the 1947 order-S.18(3) of Indian Inde-
pendence Act-Meaning of-Did not prevent order-in-Council from operating.

Constitution of India 1950 : ATt 372(1)--Law in force immediately
before commencement of the Constitution-Meaning of-{J.S.A. (extradition
India) Order-in-Council 1942 (1942 Orders) in accord with Constitution of G
India.

Extradition Act 1963-Treaty-Operation of-Held: Applicable to
whole territory of India.

Section 5 and Section lo-Documents under Section 10 along with H
141
142 SUPREME COURT REPORTS [1993) SUPP. 3 S.C.R.

A order of the Central Govt. under Section ~Held part of evidence in support
of Extradition Act-Extradition Act being special provision excludes from
operation general provisions of Criminal Procedure Code.

The U.S. Embassy in a letter of request for extradition stated that
an Indian citizen G while working in an American Bank, was guilty of
B embezzlement of funds of the Bank by fraud and forgery by transferring a
certain sum to another country by wire. An indictment was returned in the
U.S. District Court charging G with embezzlement, forgery, fraud by a
banker, wire fraud, transportation of stolen money in foreign commerce
and receiving stolen money. A warrant for G's arrest was issued by the
C U.S. Magistrate. The letter of request for extradition by the U.S. Govern-
ment was accompanied by the original set of duly certified and authenti-
cated documents in support of the request. The Government of India by
an order under Sec. 5 of the Extradition Act 1962, requested an enquiry
by the Magistrate in Delhi. The Magistrate after examining the documents
caused G to be arrested and produced before him on 17th April, 1989 and
D on 3-5-1989. There after various proceedings were taken by G and his wife
in the Magistrate's Court apart from filing 2 Writ petitions and ultimately
the matter was carried to the Supreme Court and the proceedings were
pending for over five years.

E There existed a 1931 Extradition Treaty between U.S.A. and Great
Britain. For the purpose of the said treaty the territory of His Britannic
· Majesty did not include India. However, in 1942 under the powers reserved
under Article 14 of the said treaty, an order was issued by which the British
Government through His Majesty acceded to the 1931 treaty on behalf of
India and thereafter a notification under S.3(1) of he Extradition Act read
F with S.3(3) was issued setting out in full the 1931 Treaty between U.S.A.
and India and the provisions of the Extradition Act were also made
applicable to the United .states of America. Thereafter both the Indian
Embassy in U.S.A. and the Department of State of U.S.A. confirmed and
acknowledged the existence of the treaty. Extradition proceedings were
q challenged in this Court by G. and his wife by way of a Writ Petition and
Civil Apreals against the High Court's orders on the following grounds:

(a) A treaty signed prior to the coming into force of the Constitution
on 26-1-1950 automatically ceased to exist.

H (b) Under the Government of India, Act, only the Governor General
GEORGE v. U.O.I. 143

of India could accede to the extradition ~~7'-- A
(c) The 1942 order extending and making applicable the treaty to
India ceased to be existing Indian Law and became inoperative after
coming into force of the India (Adaptation of Existing Laws) Order, 1947
and the Adaptation of Laws Order 1950.
B
(d) The Indian Extradition Act 1903 being applicable to British
India, could not apply to an erstwhile native India State like Kerala where
G. was arrested and therefore his arrest and detention was illegal and
unathorised.

(e) Adequate evidence not having been produced within two months
c
of G's apprehension, he was liable to be set at liberty under Clause 11 of
the 1931 Treaty.

(l) The competent Magistrate to hold an enquiry under the Extradi-
tion Act was the Chief Judicial Magistrate Ernakulam, where G was found D
and arrested in view of S.5 of the Extradition Act read with S.177, 188, 190
of the Criminal Procedure Code.

Dismissing the Criminal Appeals & Writ Petition, this Court

HELD: 1. Procedure to be followed by Courts in deciding whether E
extradition should be granted is determined by the Municipal Law of the
land even though extradition itself is in implementation of ~he international
commitment of the State. [155-D-E]

2. There cannot be surrender of fugitive criminals or a request there-
for without formal authority either by statute or treaty. [156-C] F

3. There is no general rule that all treaty rights and obligations lapse
upon external changes of sovereignity over territory, nor is there any prin-
ciple which is generally accepted and favours continuity of treaty relations.
The general working rule is to ascertain the intention Gf the concerned State G
by looking at relevant treaty and other arrangement accompanying change
of sovereignity, and it is a political question to be determined in view of the
circumstances accompanying the change in sovereignity. [156-F; 157-A-B]

4. The Government of India has accepted the 1931 treaty as operative
between United States of America and India. The 1931 treaty as extended H
144 SUPREME COURT REPORTS [1993] SUPP. 3 S.C!R.

A to India by the 1942 order is operative between the two countries.
[157-G-H; 158-A]
5. Existing treaty obligation or a State do not automatically lapse
under public international law on an external change or sovereignity. Ter-
mination or treaty is a political question and the controlling importance is
B of the governmental action. [158-B, G]

Tom C. Clark v. Alvina Allen, 331 U.S. 503·5·18, relied upon.

6. Change in the form of government of a contracting state does not
put an end to its treaties. Therefore, independence in 1947 and the sovereig-
C nity of a republic could not have put an end to the treaties entered into by
the British Government prior to 15th August 1947, on behalf of India.
[160-D-E]
Dr. Babu Ram Saksena v. The State, [1950 ]S.C.R. 573 and Jhirad v.
Fe"andina, 365 Federal Supplement 1155, relied upon.
D 7. Fugitive Offenders Act 188l could not apply to British Possessions
because .the Fugitive Offenders Act was an internal statute (of Britain).
[161-B]
State of Madras v. C.G. Menon. & Ors., [1955] SCR 280, held inap-
P!icable.
E
8. The 1931 Treaty between U.S.A. and Indian as notified under S.3.
of the Act is subsisting and operative between the two countries. [162-B]

9. Entering into a treaty being the sole prerogative of the British
Crown, the Governor General oflndia had no authority whatsoever to enter
F into treaties with any country on behalf of India. [162-G]

10. Entering into a treaty is the executive act performed by the Head
of the State and its implementation is the legislative function if in a given
case a law is required to implement the treaty. [163-C]

G 11. Entry 3 List I of the Seventh Schedule to the Government of India
Act 1935 only permitted the Legislature to make law, if necessary, in order
to implement the treaties which were entered into by the British Crown.
[163-G]
12. The Indian Independence (International Al'rangeyients) order,
H 1947 and the Adaptation of Laws Order, 1950 dealt only with municipal
GEORGE\'. U.0.1. 145

law which was operating in India and needed adaptation because of the A
change in India's so\·ereign status and could not have dealt with the
international agreements and treaties entered into by the British Crown
in its executive power. [164-C]

13. The exclusion of 'Order-in-Council' from the definition of the
expression 'existing Indian Law' under the 1947 order did not have the B
effect of preventing the 'Order-in-Council' from operating ~y virtue of
S.18(3) of the Independence Act. (164-F] -

14. The United States of America (extradition-India) Order-In·
Council 1942 (1942 Orders) issued by the British Government was in C
accord with the provisions of the Constitution of India and did not require
any adaptation or modification as it was law in force immediately before
the commencement of the Constitution and continued in force under Art.
372(1) of the Constitution. The 1950 Order being only for the purpose of
adaptation of the 'existing Indian Laws' and as such was not applicable to D
the 1942 Order. (164-H, 165-A]

15. When the native Indian State became part of Independent India
after 1947, the territories comprising the States automatically came to be
operated by the Municipal laws of the land including the laws enacted to
implement the treaties. When the 1963 Extradition Act came into force E
Kerala was part of India and the notification dated 1st April, 1966
reiterated that the 1931 treaty was operative qua the whole territory of
India. (165-D-E]

16. Documents referred to under S.10 of the Extradition Act, 1963, F
when placed on record with the order of the Central Government issued
under S.5 of the Act, are part of the evidence in support of Extradition.
[167·D·EJ
17. The Extradition Act being a special provision to deal with the
Extradition of fugitive criminals shall exclude from operation the general G
provisions of Criminal Procedure Code 1973 and S.5 of the Criminal
Procedure Code gives overriding effect to the Special jurisdiction created
under any special or local laws. Consequently, S.177, 178, and 190 of the
Criminal Procedure Code have no application to the proceedings under
the Extradition Act. [168·C·D] H
146 SUPREME COURT REPORTS (1993) SUPP. 3 S.C.R.

A CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
631of1993.

From the Judgment and order dated 14.12.90 of the Delhi High
Court in W.P. (Crl.) No.692 of 1989.

B WITH

Criminal Appeal No. 632 of 1993.

AND

C .Writ Petition (Crl.) No. 97 of 1992.
R.G. Garg, G.L. Sanghi, Ms. Lily Thomas, for the appellant.

K.T.S. Tutsi, Solicitor General, A.K. Srivastava, K: Swamy, P. Par-
meshwarn, Ms. Sushma Suri and M.T. George for the repondents.
D
The Judgment of the Court was delivered by

KULDIP SINGH, J. Leave granted in both the special leave peti-
tions.

E George Kutty Kuncheria, an Indian national, is wanted in the United
States of America to stand trial for violation of Federal fra!ld statutes and
related offences. The Embassy of the United States of America in New
Delhi sent a latter of request dated September 20, 1988 to the Ministry of
External Affairs, Government of India, for the extradition of George to the
F United States. The Ministry of External Affairs, Government of India, in
exercise of its powers under Section 5 of the Extradition Act, 1962 (the
'Act') passed an order dated December 5, 1988 requesting the Additional
Chief Metropolitan Magistrate, Patiala House, New Delhi (the Magistrate),
to conduct an inquiry into the ma~ter under the Act. Rosiline, wife of
George, challenged the extradition proceedings by way of a writ petition
G before the Delhi High Court. The writ petition was dismissed by a Division
Bench of the High Court by its judgment dated December 14, 1990. The
two appeals by way of special leave filed. by Rosiline and George, are
against the judgment of the Delhi High Court. The writ petition under
Article 32 of the Constitution of India has been filed by George challenging
H the extradition proceedings on various grounds.
GEORGE v. U.0.1. [KULDIP SINGH, J.) 147

The facts as disclosed by the Embassy of the United States of A
America in its letter of request indicate that while employed as an officer
of the Chase Manhattan Bank in New York, George defrauded and em-
bezzled from the bank more than one million dollars. He caused - by means
of forgery and embezzlement the funds to be transferred.by wire out of the
United States, to the United Arab Emirates, where he claimed the alleged B
ill-gotten gains. George is the subject of indictment No.5 88 CR 461
returned on August 16, 1988 in the United States District Court for the
Southern District of New York (Manhattan) charging him with two counts
of embezzlement,- two counts of forgery, two counts of fraud by a banker,
two counts of wire fraud, two counts of transportation of stolen money in
foreign commerce and two counts of receiving stolen money. A warrant for C
George's arrest was issued on August 16, 1988, by the U.S. Magistrate of
the above court.

In support of the United States' request for extradition of George,
an original set of documents, duly certified and authenticated, was trans-
mitted along with the said letter. The details of the documents are as D
under:-

i. Certificate of authentication by the Attorney-General of the
United State~ by affixing the seal of the Department of Justice.

ii. Certification by the Director, Office of International Affairs, E
Criminal Division, United States Department of Justice, certifying
that the judicial certificate of authentication, affidavits, exhibits and
attachment are all original and have been offered in supp~rt of the

- United States request for the extradition of George.

iii. Prosecutor's affidavit in support of request for extradition.
F

iv. Exhibit 1 to the prosecutor's affidavit is a certified true copy of
the indictment No.S.88 C.R.C.461 which was filed against George
on August 16, 1988, in the United States District Court for the
Southern District of the New York. G
v. Exhibit 2 to the prosecutor's affidavit is a certified true copy of
the warrant for arrest issued for George by the Embassy con-
cerned.

vi. Exhibits 3, 4, 5, 6 and 7 to the prosecutor's affidavit are affidavits H
148 SUPREME COURT REPORTS [1993] SUPP. 3 S.C.Rt

A of witnesses relating to the indictment against George. Each of
these exhibits is a true copy of the original affidavit which has been
filed and is part of the official court record in this case. Exhibits
3, 4, 5 and 6 have been sworn to before the United States District
Court Judge.
B. vii. Exhibit 8 to the prosecutor's affidavit consists of true copies of
the relevant statutes of the United States which w~re in effect at
the time· of the alleged offences.

viii. Certification by the Director, Officer of International Af-
fairs,Criminal Division, United States Department of Justice cer-
c tifying that the judicial certificate of authentication signed by
United States District Court Judge, the affidavit of prosecutor
(Assistant United States Attorney) and Exhibits 1 to 8, are original.
It was further certified that all the document mentioned above are
offered in support of the United States request for the extradition
D of George.

On receipt of the letter of request for extradition of George, the
Government of India issued the order dated December 5, 1988, requesting
the Magistrate to conduct an inquiry into the alleged offences. Para 5 of
E the said order is as under :- ·

"The letter of request received from the US Embassy in New Delhi
for the extradition of Shri George Kutty Kuncheria together with
documents furnished by the Government of USA in support of
their request are enclosed herewith.
F
G. Jagannathan, Deputy Secretary, Ministry of External Affairs,
Government of India, presented the order dated December 5, 1988, along
with the original file of the case before the Magistrate on December 7,
1988. After examining the documents, the learned Magistrate ordered that
a warrant of arrest of the fugitive criminal be issued returnable by January
G 4, 1989. George was produced before the Magistrate on April 17, 1989. He
was remanded to judicial custody. Thereafter, nothing material happened
on the next six hearing before the learned Magistrate. On May 3, 1989,
copies of the documents numbering 99 pages were supplied to George
through his counsel. These were the documents placed on record in terms
H of para 5 of the order reproduced above, the Government of India dated
GEORGE v. U.O.I. [KULDIP SINGH, J.] 149

December 5, 1988. A
On May 6, 1989, George filed a writ petition being criminal writ
petition No.314 of 1989 before the Delhi High Court. The original record
from the Magistrate's court was summoned to the High Court. The wr~t--"~ ·
petition was dismissed as withdrawn on November 2, 1989. During the 'B
period from May 1989 to December 1989, thirty three further hearings took
place before the Magistrate but the inquiry could not commence because
the High Court was seized of the matter. On December 5, 1989, Shri
J agannathan, Deputy Secretary, Ministry of External Affairs, Government
of India, was present before the learned Magistrate along with his counsel. C
George requested the Magistrate that he had no faith in his counsel iind
to enable him to engage another lawyer, the inquiry be adjourned. Despite
the direction of the High Court to proceed with the inquiry on day-to-day
basis, the learned Magistrate, in the interest of justice, adjourned the
hearing. On December 8, 1989, George was not produced before the
Magistrate from Judicial custody. It was stated that he had been advised D
rest by the jail doctor. The learned counsel for the Union of India con-
tended before the Magistrate that the report of the jail superintendent was
concocted. He requ.!sted the Magistrate to inquire into the matter. On the·
next six hearings, neither the accused appeared before the Magistrate nor
the medical report summoned by him was produced. Finally, on January E
19, 1990, the Magistrate passed an order stating that the non-production
of the accused and non- production of the medical record would be treated
as disobedience of the court's order and as much legal action in accordance

- with law would be initiated. On January 30, 1990, the medical record was
produced before the court by the accused prayed that he could not afford F
to engage a lawyer and, as such, legal aid be provided to him. During the
next several hearings extending upto February 19, 1991, the accused did
not permit the court to record the evidence produced by the Government
of India on one pretext or the other. He moved five application before the
Magistrate and insisted that the inquiry could not commence till the time G
the applications filed by him were disposed of. He did not present himself
before the Magistrate on the ground that he had undergone an operation
and was unwell. Meanwhile, Rosiline, wife of the accused, filed another
writ petition in the Delhi High Court on October 26, 1989, challenging the
extradition proceedings on various grounds. The High Court passed an H

•
150 SUPREME COURT REPORTS (1993) SUPP. 3 S.C.R.

A interim order on December 7, 1989, which was confirmed on January 10,
1990, staying the extradition of George but permitting the inquiry to go on.
Various application filed by the accused before the Magistrate were dis-
missed by him on April 5, 1990. As mentioned above, the writ petition filed
by Rosiline was finally dismissed by the High Court on December 14, 1990
B giving. rise to these proceedings before us. This Court by order dated
January 7, 1991, stayed the extradition of George till further orders. On
February 20, 1991, this Court stayed further inquiry before the Magistrate.
It is unfortunate that George successfully circumvented the normal extradi-
tion proceedings by adopting every possible tactic with a view to prolong
C the proceedings. The case has been in limbo for over five years. .

Before dealing with the arguments advanced by the learned counsel
for the parties, it would be useful to examine the international documents
evidencing the conclusion of a treaty between the United States of America
and India for the reciprocal extradition of criminals. On December 22,
D 1931, a treaty of extradition was concluded between England and the
United States of America· (1931 Treaty). For the purposes of the said
treaty, the territory of His Britannic Majesty did not include British India.
The treaty was, thus, not applicable to India. Article 14 of the said treaty,
however, provided as under:-

E "Article 14. His Britannic Majesty may accede to the present
Treaty on behalf of any of his Dominions hereafter named -- that
is to say, the Dominion of Canada, the Commonwealth of Australia
(including for this purpose Papua and Norfolk Island), the
Dominion of New Zeland, the Union South Africa, the Irish Free
F State, and Newfoundland - and India ....."

Exercising the powers reserved under the above quoted Article 14
an order called the United States of America (extradition: India) Order-
in-Council, 1942 (1942 Order) was issued by the British Government on
February 23, 1942. By the said order, "His Majesty acceded to the 1931
G treaty on behalf of India". The treaty was extended and made applicable
to India with effect from March 9, 1942.

The next relevant document is The Indian Independence (Interna-
tional· Arrangements) Order, 1947 [The International ~rangements
.H Order]. Under the said order, India agreed that the rights and obligaticins

•
GEORGE v. U.0.1. [KULDIP SINGH, J.] 151

under all international agreements to which India was a party immediately A
before the 15th day of August, 1947 would devolve upon the dominion of
India. The schedule to the International Agreements Order incorporating
the agreement is reproduced hereunder :-

"SCHEDULE
B
.Agreement as to the devolution of International rights and obliga-
tions upon the Dominions of India and Pakistan.

1. The international rights and obligat~ons to which India is entitled
and subject immediately before the ~5th day of August, 1947, will C
devolve in accordance with the provisions of this agreement.

2. (1) Membership of all international organisation together with
the rights and obligations attaching to such membership, will
devolve solely upon the Dominion of India.
D
For the purposes of this paragraph any rights or obligations
arising under the Final Act of the United National Monetary and
Financial Conference will be deemed to be rights or obligations
attached to membership of the International Monetary Fund and
to membership of the International Bank for Reconstruction and
Development. E
(2) The Dominion of Pakistan will take such ste~s as may be
necessary to apply for membership of such international organisa-
tions as is chooses to join.

3. (i) Rights and obligations under international agreements F
having an exclusive territorial application to an area comprised in
the Dominion of India will devolve upon that Dominion.

(2) Rights and obligations under international agreements
having an exclusive territorial application to an area comprised in G
the Dominion of Pakistan will devolve upon that Dominion.

4. Subject to Articles 2 and 3 of this agreement, rights and obliga-
tions under all international agreements to which India is a party
immediately before the appointed day will devolve both upon the
Dominion of India and upon the Dominion ~f Pakistan, and will H
152 SUPREME COURT REPORTS [1993) SUPP. 3 S.~.R.

A if necessary, be apportioned between the two Dominions;"

The Extradition Act 1962 came to be enforced with effect from
January 5, 1963. Sections 2( d) and 3 of the Act are reproduced hereunder:-

"2(d). "Extradition treaty" means a treaty or agreement made by
B India with a foreign State relating to the extradition of fugitive
criminals, and includes any treaty or agreement relating to the
extradition of fugitive criminals made before the 15th day of
August, 1947, ·which extends to, and is binding on, India;

3. Application of the Act. - (1) The Central Government may, by
c notified order direct that the provisions of this Act other than
Chapter III shall apply, --

(a) to such foreign.State or part thereof; or

(b) to such Commonwealth country or part thereof which
D Chapter III does not apply;

as may be specified in the order.

(3) Where the notified order relates to a treaty States--
E (a) it shall set out in full the extradition treaty with that State;

(b) it shall not remain in force for any period longer than that
treaty; and

(c) the Central Government may, by the same or any sub-
F sequent notified order, render the application of this Act subject
to such modification, exceptions, conditions and qualifications as
may be deemed expedient for implementing the treaty with the
State."

G Notification dated April 1, 1966 under Section 3(1) read with Section·
3(3) was issued by the Government of India wherein the text of 1931 Treaty
between India and United States of America was set out in full and further
the provisions of the Act were made applicable to the United States of
America.

H The Embassy of India in Washington D.C. by a diplomatic note dated
GEORGE v. U.O.I. [KULDIP SINGH, J.] 153

July 11, 1967, confirmed the existence of the Extradition Treaty between A
India and the United States. The note is reproduced hereunder :-

"The Embassy of India presents its complements to the Depart-
ment of States and has the honor to request them to confirm the
existence of the Extradition Treaty between India and the United
States in these words :- B
"The dominion of India, which came into being on August 15,
1947, became the Republic of India on January 26, 1950 but
remains a member of the British Commonwealth of Nations. This
change is understood not to have affected any agreements in their C
application between the United States and India. The Treaty of
Extradition between the United States and Great Britain entered
into on December 22, 1931 and made applicable to India on March
9, 1942 is therefore considered a good subsisting and binding
convention between the United ~tates and India as of this date.
A copy of the said Treaty is annexed hereto." D
The Embassy of India takes this opportunity to renew to the
Department of State the assurances of its highest consideration.

Con.48(2)/66
July 11, 1967 E
Washington, D.C."

The Department of State of the United States of America acknow-
ledged the receipt of the above quoted note dated July 11, 1967 sent by
the Embassy of India. The acknowledgment by the United States of
America in the following words :- F

"The Department of States acknowledges the receipt of the note
No.Con,48(2)/66 dated July 11, 1967 from the Embassy of India
and is pleased to confirm as follows the existence of the Extradition
Treaty in force between the United States and India.
G
The dominion of India, which came into being on August 15,
1947, became the Republic of India on January 26, 1950 but
remains a member of the British Commonwealth of Nations. This
change is understood not to have affected any agreements in their
application between the Unitt:d States and India. The Treaty of H
A
154 SUPREME COURT REPORTS [1993) SUPP. 3 S.C.R.

Extradition between the United States and Great Britain entered
into on December 22, 1931 and made applicable to India on March
-
9, 1942 is therefore considered a good subsisting and binding
convention between the United States and India as of this date. A
copy of the said Treaty is annexed hereto.
B Enclosure : Treaty Series 849.
Department of States,
Washington, July 21, 1967."

Mr. G.L. Sanghi and Mr. R.K. Garg, learned counsel for the appel-
C !ants, challenged the extradition proceedings on the following grounds :-
(1) An extradition treaty has to be signed on behalf of two sovereign
States by the competent authorities empowered to do so. Any treaty signed
on behalf of India prior to January 26, 1950 automatically ceased to exist
after India achieved sovereignty. Since there is no concluded extradition
D treaty between India and United States of America after January 26, 1950,
the provisions of the Act are inoperative so far as United States of America
is concerned and there cannot be an exchange of fugitive criminals between
the two countries.

(2) Under the Government of India Act, it was the Governor-
• E General of India who could accede to the extradition treaty with the United
States of America behalf of India. The 1942 Ordr.r could not have extended
the 1931 Treaty to India as the said power could only be exercised by the
Governor-General.

·F (3) The India (Adaptation of Existing Indian Laws) Order, 1947
(1947 Order) read with the Adaptation of Laws Order, 1950 (1950 Order)
excludes the Orders-in-Council from the definition of "existing Indian laws"
and "existing Central laws" and, as such, the 1942 Order ceased to be an
existing Indian law and became inoperative after 1947 or, in any case, after
G the coming into force of the 1950 Order.

( 4) The Treaty was made applicable to British India by the 1942
Order. The Indian Extradition Act, 1903 was limited in the its extent and
application· to British India and was not applicable to the Indian native
States. As a consequence the extradition treaty, as acceded to by the 1942
,
H Order, was not applicable to the Indian native States. George having been
GEORGE v. U.0.1. [KULDIP SINGH, J.) 155

arrested from the State of Kerala which was part of an erstwhile native A
State where the extradition treaty was not applicable, the arrest and
detention of George was illegal and unauthorised.

(5) Sufficient evidence for the extradition of George has not been
produced before the Magistrate within two months of his apprehension. As
such, in term of Article 11 of the 1931 Treaty, George is liable to be set at B
liberty.

(6) The competent Magistrate to hold an enquiry under the Act is
the Cheif Judicial Magistrate, Ernakalam, in whose jurisdiction the fugitive
was found and arrested. Reliance in this respect is placed on Section 5 of C
the Extradition Act read with Sections 177, 188 and 190 of the Criminal
Procedure Code.

The term 'extradition' denotes the process whereby under a con-
cluded treaty one State surrenders to any other States at its request, a D
person accused or convicted of a criminal offence committed against the
laws of the requesting State, such requesting State being competent to try
the alleged offender. Though extradition is granted in implementation of
the international commitment of the State, the procedure to be followed
by the Courts in deciding, whether extradition should be granted and on .
what terms, is determined by the Municipal Law of the land. Extradition E
is founded on the broad principle that it is in the interest of civilised
communities that criminals should not go un-punished and on that account
it is recognised as a part of the .comity of nations that one State should
ordinarily afford to another State assistance towards bringing offenders to
justice. J.G. Starke in his book, Introduction to International Law (10th p
Edition) gives the following rational considerations which have conditioned
the law and practice as to extradition.

"a. The general desire of all states to ensure that serious crimes
do not go unpunished. Frequently a state in whose territory a G
criminal has taken refuge cannot prcsecute or punish him purely
because of some technical rule of criminal law or for lack of
jurisdiction. Therefore to close the net round such fugitive of-
fenders, intel'Dational law applies the maxim, 'aut punire aut dedere'
i.e. the offender must be punish'!d by the state of refuge or
surrendered to the state which can and will punish him. H
156 SUPREME COURT REPORTS (1993] SUPP. 3 S.C.R.

A b. The state on whose territory the. crime has been committed is
best able to try the offender because the evidence is more freely
available there, and that state has the greatest interest in the
punishment of offender, and the greatest facilities for ascertaining
the truth. It follows that it is only right and proper that to the
territorial state should be surrendered such criminals as have taken
B refuge abroad.

With the tremendous increase of the facility of international
transport and communication, extradition has assumed prominence since
the advent of the present century. Because of the negative attitude of the
C customary international law on the subject, extradition is by and large dealt
with by bilateral treaties. These treaties, inasmuch as they affected, the
rights of private citizens, required in their turn alternations in the laws and
statutes of the States which had concluded them. The established principle
requires that without formal authority either by treaty or by statute, fugitive
D cr~als would not be surrenderd nor would their surrender be requested.

We may now consider the first contention raised by learned counsel
for the appellant. The precise argument raised by Mr. R.K. Garg is that
there is no valid extradition treaty in existence between India and the
United States of America and as much the extradition proceedings against
E the appellant are without jurisdiction. According to him, the 1931 Treaty
as extended to India by the 1942 order automatically ceased to be operative
after January 26, 1950 when India became a sovereign republic.

To appreciate the argument it is necessary to examine the inter-
F national law on the subject of treaty succession. There is no general rule
that all treaty · rights and obligations lapse upon external changes of
sovereignty over territory nor is there any generally accepted principle
favouring the continuity of treaty relations. Treaties may be affected when
one State succeeds wholly or in part to the legal personality and territory
of another. The conditions under which the treaties of the latter survive
G depend on many factors including the precise from the origin of the
succession and the type of treaty concerned. The emancipated territories
on becoming independent States may prefer to give general notice that they
are beginning with a "clean slate", so far as their future treaty relations were
colleemed, or may give so-called "pick and choose" notifications as to
H treaties as were formally applicable to it before achieving independence.
GEORGE v. U.0.1. [KULDIP SINGH, J.) 157

The "clean slate" doctrine was ultimately adopted in the relevant provisions A
of the Vienna Convention of 1978. The sound general working rule which
emerges is to look at the text of the relevant treaty and other arrangements
accompanying change of sovereignty and then ascertain as to what was the
intention of the State concerned as to the continuance or passing of any
rights or obligations under the treaty concerned. The question whether a B
State is in a position to perform its treaty obligations is essentially a
political question which has to be determined keeping in view the cir-
cumstances prevailing and accompanying the change of sovereignty.

We have plenty of evidence to show that India, after achieving
independence, has unequivocally committed itself to honour the interna- C
tional obligations arising out of the 1931 Treaty. We have reproduced
' above the International Arrangement Order wherein India agreed to
honour all the international agreements entered into before August 15,
1947 and agreed to fulfil the rights and obligations arising from the said
agreements. The Parliament made its intention further clear when under
Section 2(d) (quoted above) of the Act it gave inclusive definition to the D
expression "extradition treaty" by including, the treaties made or entered
into prior to August 15, 1947 in the said definition. The most important
document in this respect is the Notification dated April 1, 1966 issued by
the Government of India under Section 3 of the Act, directing that the
provisions of the said Act, other than Chapter III thereof, would apply to E
the United States of America with effect from April 1, 1966. The opening
paragraph of the said Notification is an under :-

"G.S.R/ 493.-- Whereas the Extradition Treaty between the United
States of America and Great Britain and Northern Ireland of p
December 22, 1931, which was acceded to by India on 9th March,
1942, is in force in India from 9th March, 1942 and which treaty
provides as follows: ......."

The full text of 1931 Treaty was thereafter produced in the Notifica-
tion. It is thus obvious that the Government of India has, in clear terms, G
accepted that the 1931 Treaty is operative between India and the United
States of America. We have produced in the earlier part of the judgment
the exchange of diplomatic notes between the two countries reiterating that
the 1931 Treaty is considered a "good subsisting and binding convention
between the United States and India as on this date". It was further stated H
158 SUPREME COURT REPORTS (1993) SUPP. 3 S.C.R.

A that after India became a Republic of January 26, 1950, the change had
not affected any agreements in their application between the United States
and India. We have, therefore, no hesitation in holding that the 1931 Treaty
as extended to India by the 1942 Order is operative between the two
countries.

B There is no rule of public international law under which the existing
treaty obligation of a State automatically lapse on there being an external t
change of sovereignty over its territory. India after achieving independence
specifically agreed to honour its obligations u;· der the international agree-
ments. At no point of time, India disowned the 1931 Treaty. Rather, by
C various overt acts -- indicated above -- India accepted the existence of the
1931 Treaty between the two countries and repeatedly reiterated that it
would honour its obligations under the said treaty. The Supreme Court of
the United States in Tom C. Clarie v. Alvina Allen, 331 US 503-518 held as
under:-

D "It is argued, however, that the Treaty of 1923 with Germany
must be held to have failed to survive the war, since Germany, as
a result of its defeat and the occupation by the Allies, has ceased
to exist as an independent national or international community.
But the question whether a state is in a position to perform its
treaty obligations is essentially a political question. Terlinden v..
E
Ames, 184 US 270, 288 46 Led 534, 545, 222 S Ct 484. We find I-

no evidence that the political department have considered the
collapse and surrender of Germany as putting an end to such
provisions of the treaty as survived the outbreak of the war or the
obligation of either party in respect of them. The Allied Control
F Council has, indeed, assumed control of Germany's foreign affairs
and treaty obligation -- a policy and course of conduct by the
political department wholly consistent with the maintenance and
enforcement, rather than the repudiation, of pre-existing treaties."

G Whether a treaty has been terminated by the State is essentially a
political question. The governmental action in respect to it must be
regarded as of controlling importance. So far as India and the United
States of America are concerned, it is amply evidenced by their actions that
the two States fully recognise their obligations under the 1931 Treaty.

H It would be useful at this stage to refer to the judgment ;Jr the United
GEORGE v. U.0.1. [KULDIP SINGH, J.] 159

States District Court, New York, in lhirad v. Ferrandin(l., 355 Federal A
Supplement 1155. The Government of India sought the extradition of
Jhirad, an Indian citizen and a resident alien in the United States of
America. It was alleged that while working in the Indian Navy Jhirad
embezzled large sums of money from. the naval funds. Jhirad challenged
the extradition proceedings by way of a writ of habeas corpus before the
United States District Court, New York. The United States and India B
relied upon the 1931 Treaty as made effective by the 1942 Order. Jhirad
argued before the court that the 1931 Treaty under which extradition was
sought, though made applicable to British India in 1942, did not survive
after the creation of the Republic of India in 1950. The court rejected the
argument advanced by Jhirad on the following reasoning :- C
1. As part of the creation of dominion of India, the Indian Govern-
ment agreed, the Indian Government agreed to take an assignment
of all treaties signed on its behalf by the Great Britain. The
subsequent change to a "Republic" was certainly of only evolution-
ary nature, thus the 1931 Treaty would appear to survive. D
2. Both the Government of Indfa and the United States of America
have been unequivocal in relying on the validity of the Treaty of
1931 and in .the past there have been extraditions from both
countries.
E
3. The weight of authority, under international law, supports the
view that new nations inherit the treaty obligation of the former
colonies. There is ·a tendency in the direction. of continuity of
treaties upon independence of .colonial territories.
F
The learned counsel for the appellant has relied on the judgment of
this Court in Dr. Babu Ram Saksena v. The State, [1950) S.C.R. 573. In the
said case, the question before this Court was whether the Extradition
Treaty between the Tonic State and the British Government became extinct
by reason of the merger of the said State in the United State of Rajasthan. G
This Court answered the question in the affirmative. What happened in
that case 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 party 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. The Covenanting H
I
l(J() SUPREME COURT REPORTS (1993) SUPP. 3 S.C.R.

A States had lost their personality altogether. As a result of amalgamation of
merge, the Tonk State lost its full and independent power of action over
the subject-matter of a treaty previously concluded and, as such, it was held
by this Court that the Treaty must necessarily lapse. The following obser-
vations of this Court, in che said judgment, are relevant for our purpose :-
B "The other case cited by Sir Alladi, viz., that of Lazard Brothers v.
Midland Bank Limited, (1933) AC 289 has absolutely no bearing
on this point. It laid down the well accepted proposition ·of inter-
national law that a change in the form of government of a con-
tracting State does not put an end to its treaties. The treaty entered
c into by the Czarist Russia could be given effect to after the
Revolution, once the new government was recognized as a person
in International Law."

It is thus obvious that in Babu Ram Saksena's case this Court
D approved the proposition of International Law that a change in the form
of government of a contracting State does not put an end to its treaties.
India, even under British Rule, had retained its personality as a State under
International Law. It was a member of the United Nations in its own right.
Therefore, grant of independence in the year 1947 and thereafter the status
of Sovereing Republic could not have put an end to the treaties entered
, E into by the British Government prior to August 15, 1947, on behalf of India.

Mr. R.K. Garg strongly relied upon the judgment of this Court in
State of Madras v. C.G. Menon & Ors., (1995) S.C.R. 280. In the said case
Menon and his wife were apprehended and produced before the Chief
F Presidency Magistrate, Egmore, Madras, pursuant to warrants of arrest
issued under the provisions of the Fugitive Offenders Act, 1881. The
Colonial Secretary, Government of Singapore had requested the assistance
of the Government of India to arrest and return to the Colony of Singapore
the Menons under warrants issued by the Singapore Magistrate. Menon
was charged dn several counts of having committed criminal breach of trust
G · and his wife was charged with the abetment of these offences. Under the
provisions of the Fugitive Offenders Act, 1881, the British possessions
which were contiguous to one another and between whom there was
frequent inter-communication were treated for purposes of the said Act as
one integrated territory and a summary procedure was adopted for the
H purpose of extraditing persons who had committed offences in these in-
GEORGE v. U.0.I. [KULDIP SINGH, J.] 161

tegrated territories. As the laws prevailing in those possessions were sub- A
stantially the same, the ::equirement that no fugitive will be surrendered
unless a prima facie case was made against him was dispensed with. India
was, thus, being treated under the provisions of the Fugitive Offenders Act,
1881, as a British possession and by an Order-in-Council was grouped with
Singapore and other contiguous British Possessions. This Court came to B
the conclusion that after the achievement of independence, the provisions
of the F,ugitive Offenders Act, 1881, could not be made applicable to India.
This Court, on examining the provisions of the said Act, came to the
conclusion that after the achievement of independence the said Act could
not be made applicable to India. This Court reached the said finding on
the following reasoning : C

"The situation completely changed when India became a Sovereign
Democratic Republic. After the achievement of independence and
the coming into force of the new Constitution by. no stretch of
imagination could India by described as a British Possession and D
it could not be grouped by an Order in Council amongst those
Possessions. Truly speaking, it became a foreign territory so far as
other British Possessions are concerned and the extradition of
persons taking asylum in India, having committed offenders in
British Possessions, could only be dealt with by an arrangement
between the Sovereign Democratic Republic of India and the E
British Government and given effect to by appropriate legislation.
........... The whole basis for the applicability of Part II of the
Fugitive Offenders Act has gone; India is no longer a British
Possession and no Order in Council can be made to group it with
other British Possessions. ........... Article 372 of the Constitution F
cannot save this law because the grouping is repugnant to the
conception of a sovereign democratic republic. The political back-
ground and shape of things when Part II of the Fugitive Offenders
Act 1881 was enacted and envisaged by that Act )laving completely
changed, it is not possible without radical legislative changes to
adapt that Act to the changed conditions." G

It is thus obvious that Menon's case has no reliance whatsoever to
the facts of the present case. The Fugitive Offenders Act, 1881, was an
internal statute which could not be made applicable to India after its
independence because of the peculiar provisions under the said Act. On H
162 SUPREME COURT REPORTS [1993) SUPP. 3 S.C.R.

A the other hano, in this case, we are concerned with the 1931 Treaty which
was an external act whereby India as an international person gained rights
and obligations vis-a -vis another international person.

We, therefore, reject the contention raised by the learned counsel for
the appellant and hold that the 1931 Treaty between India and United
B States of America as notified under Section 3 of the Act is subsisting and
operating between the two countries.

The second contention raised by Mr. G.L. Sanghi is based on Section
11 read with Entry 3, List I, Seventh Schedule of the Government of India
C Act, 1935 (the 1935 Act), Section 11, as it existed in 1942, provided that
the functions of the Governor-General with respect to external affairs shall
be exercised at his discretion. Entry 3, List I of Seventh Schedule to the
1935 Act was as under :- · ·

ENTRY 3. EXTERNAL AFFAIRS
D
"The implementing of the treaties and agreements with other
countries, extradition including the surrender of criminals and
accused persons to parts of His Majesty's dominions outside India."

The precise argument is that the Governor-General of India had the
E exclusive power under Section 11 read with Entry 3, of the 1935 Act to
accede to the 1931 Treaty and the accession made by the British Sovereign
by the 1942 Order was unconstitutional and, as such, there is no subsisting
treaty between the two countries. Treaty-making is a subject of public
international law. It is the prerogative of the Executive Head of the State
F to enter into treaties and agreements with other sovereign countries in the
international sphere. The 1931 Treaty was concluded between His Majesty,
the King of Great Britain and the President of the United States of
America. Under Article 14 of the said Treaty, it was only His Britannic
Majesty who could accede to the said treaty on behalf of any of his
dominions including India. This was precisely what was done by the 1942
G Order. The Governor-General of India had no authority whatsoever to
enter into treaties with any country on behalf of India. This was the sole
prerogative of the British Crown. Even otherwise, reliance by the learned
counsel on Entry 3, List I, Seventh Schedule to the 1935 Act is wholly
misplaced. The said Entry only talks of "the implementing of the treaties
H and agreements with other countries." Entering into a treaty and im-
·"'
GEORGE v. U.0.1. [KULDIP SINGH, J.] 163

plementing the same are two different subjects. The Governor-General A
under the 1935 Act had no power to enter into treaties with foreign
countries. Under the said Act he had the power only to implement the
treaties which had already been entered into and concluded by British
Crown. The contention of the learned counsel that the expression "im-
plementation" includes entering into and accession of treaties is only to be
mentioned and rejected. It would be useful to refer to Entry 14, List I,
B
Seventh Schedule, the Constitution of India, which read as under :-

"Entering into treaties and agreements with foreign countries and
implementing of treaties, agreements and conventions with foreign
countries." C
It is thus obvious that entering into a treaty and its performance are
two different stages covered by different wings of the Government. Enter-
ing into a treaty is the executive act performed by the Head of the State
whereas its implementation is the legislative function, if in a given case, a
law is required to implement the treaty. In Maganbhai Ishwarbhai Patel v. D
Union of India & Anr., [1969] 3 SCR 254 Hidayatullah, C.J., observed as
under:-

"As was observed by Lord Atkin in Attorney General for Canada
v. Attorney General for Ontario, (1937) A.C. 326 at 347 the position E
may be summed up thus: there is a distinction between (1) the
formation and (2) the performance of the obligation. The first is
an executive act, the second a legal act if a law is required. The
performance then has not force apart from a law that is to say
unless parliament assents to it and Parliament then accords its
approval to the first executive act. The treaties created by executive F
action bind the contracting parties and, therefore, means must be
found for their implementation within the law."

We are, therefore, of the view that under Entry 3, List I, Seventh
Schedule to the 1935 Act only permitted the Legislature to make law, if G
necessary, in order to implement the treaties which were entered into by
the British Crown. The Governor-General had no power to enter into
treaties on behalf of British India with any other country. We see no force
in the contention of Mr. Sanghi and reject the same.

Coming to the next argument of Mr. Sanghi, we fail to appreciate H
164 SUPREME COURT REPORTS (1993] SUPP. 3 S.C.R.

A how the provisions of the 1947 Order and th_e 1950 Order are attracted to
the treaties which were entered into by the British Crown in exercise of its
prerogative power. Accession to the 1931 Treaty on behalf of India by the
1942 Order was an executive act of the British Sovereign under Interna-
tional Law. The international agreements, including treaties, to which India
was a party prior to 1947 were dealt with separately by the international
B Arrangements Order. The relevant provisions of the said Order have been
reproduced in the earlier part of the judgment. By virtue of the said Order
rights and obligations under all international agreements, including the
1931 Treaty, to which India was a party immediately before 1947, automat·
ically devolved upon India after it achieved jndependence. The 1947 Order
c and the 1950 order were only dealing with the municipal law which was
operating in India and which needed adaptation because of the change in
India's sovereign status. These Orders did not and could not have dealt
with the international agreements and treaties entered into by the British
Crown in its executive power.
D
·We may, also, examine the argument by assuming that the 1942
Order was a part of the municipal law of the land. Section 18(3) of the
Indian Independence Act 1947 (Independence Act) provided that "the law
of British India ...... existing immediately before the appointed day shall,
sofar as applicable and with the necessary adaptations, continue as the law
E of each of the new dominions ..... until other provision is made by laws of
the legislature of dominion in question ...... " It is thus obvious tha~ the 1942
Order continued to operate by virtue of Section 18(3) of the Independence
Act. The purpose and object of 1947 Order was to incorporate such
adaptations as were necessary or expedient for bringing the provisions of
F the "existing Indian law" into effective operation. The exclusion of 'Order-
in-council' from the definition of the expression "existing Indian Law"
under the 1947 Order only meant that no adaptation could be made in any
'Order- in-Council'. It did not have the effect of preventing the 'Order-in-
Council' from operating by virtue of Section 18 (3) of the Independence
G Act. The 1942 Order did not require any adaptation and as such it was
beyond the purview of the 1947 Order. The 1942 Order came to be
operative under Section 18 (3) of the Independence Act. Similar was the
situation under the 1950 Order. Article 372(1) of the Constitution of India,
by and large,· substituted the provisions of Section 18 (3) of the Inde-
pendence Act. The 1950 Order was replacement of the 1947 Order. The
H 1942 Order was in accord with the provisions of the Constitution and did
GEORGE v. U.0.1. [KULDIP SINGH, J.) 165

not require any adaptation or modification; being law in force in the A
territory of India immediately before the commencement of the Constitu-
tion, it continued in force therein under Article 372 (1) of the Constitution
of India. The 1950 Order - like the 1947 order - was only for the purpose
of adaptation of "existing Indian Laws" and as such was not applicable to
the 1942 Order. Thus, examined from any angle, the argument advanced B
by Mr. Sanghi is wholly devoid of force and is rejected.

It was next contended by Mr. G.L. Sanghi that the Indian Extradition
Act, 1903 was limited in its extent and application to British India which
did not include the territories of native Indian States. According to him,
the 1931 Treaty to which British Indian acceded by the 1942 Order was not C
applicable to the native States. The contention is that even today the 1931
Treaty is not operative in the territories of the erstwhile native States and
since George was residing at Erankulum in Kerala, which was originally a
native State, bis arrest under the Act was illegal. The argument is un-
tenable. Treaty-making is the State-prerogative under the international law.
The laws made by the State legislatures in the process of implementing a D
treaty are binding and operative on the territory of the State. When the
native Indian States became part of independent India after 1947 the
territories comprising those States automatically came to be operated by
the Municipal laws of the land including the laws enacted to implement
the treaties. In any case, on January 1, 1963 when the Act came into force
Kerala was a part of India. The Notification dated April 1, 1966, issued E
under Section 3 of the Act reiterated that the 1931 Treaty was operative
qua the whole of the territory of India. We, therefore, reject the argument
of the learned counsel.

To appreciate the next argument of Mr. G.L. Sangbi, it is necessary F
to have to look at Article 11 of the 1931 Treaty which is as under :·

"Article 11. If sufficient evidence for the extradition be not
produced within two months from the date of the apprehensions
of the fugitive, or within such further time as the High Contracting
party applied to, or the proper tribunal of such High Contracting G
party, shall direct, the fugitive shall be set at liberty."

George was apprehended and produced before the Magistrate on
April 17, 1989. Sufficient evidence in support of the extradition was to be
produced within two months of the apprehension. As mentioned above, G.
Jagannathan, Deputy Secretary, Ministry of External Affairs, Government H
166 SUPREME COURT REPORTS (1993) SUPP. 3 S.C.R.

A of India, presented the order of the Central Government dated December
5, 1988 along with the original file of the case before the Magistrate, on
December 7, 1988. All the documents which were sent along with the letter
of request by the United States of America were also submitted before the
learned Magistrate. The details of the documents have already been given
in the earlier part of the judgment. The copies of all the documents,
B numbering 99 pages, were supplied to George through his counsel by the
Magistrate. At this stage, we may refer to Section 10 of the Act which is
as under:-

"I0. Receipt in evidence of exhibits, depositions and other documents
and authentications thereof (1) In any proceedings against a fugi-
c tive criminal of a foreign State or Commonwealth country under
this Chapter, exhibits and depositions (whether received or taken
in the presence of the person against whom they are used or not)
certificates of facts and judicial documents stating facts may, if duly
authenticated, be received as evidence.
D
(2).Warrants, depositions or statements on oath, which purport
to have been issued or taken by any Court of justice outside India
or copies thereof, certificates of, or judicial documents stating the
facts or, conviction before any such Court shall be deemed to be
duly authenticated if --
E
(a) the warrant purports to be signed by a judge, magistrate or
officer of the State of country where the same was issued or acting
in or for such State or country;

(b) the depositions or statements or copies thereof purport to be
F certified, under the hand of a judge, magistrate or officer of the
State or country where the same were taken, or acting in or· for
such State or country, to be the original depositions or statements
or to be true copies thereof, as the case may require;

( c) the certificate of, or judicial document stating the fact of, a
G
conviction purports to be certified by a judge, magistrate or officer
of the State or country where the conviction took place or acting
in or for such State;

(d) the warrants, depositions, statements, copies, certificates and
H judicial documents, as the case may be, are authentlt:ated by the
GEORGE v. U.0.1. [KULDIP SINGH, J.] 167

oath of some witness or by the official seal of a Minister of the A
State or country where the same were respectively issued, taken
or given."

Mr. K.T.S. Tulsi, learned Addl. Solicitor General, has placed on the
record all the documents sent by the United States of America along with B
the letter of request for extradition of George. We have examined the
documents carefully. They are duly authenticated and certified as required
under Section 10 of the Act. These documents are eligible to be treated
and received as evidence under Section 10 of the Act. Since these docu-
ments have been placed on the life of the Magistrate and copies thereof
given to George within two months of the apprehension of George it is C
futile to say that the terms of Article 11 of the 1931 Treaty have been
breached. As mentioned above, on May 6, 1989, George filed a writ
petition before the Delhi High Court and thereafter he never permitted
the proceedings before the learned magistrate to commence. Section 10(1)
of the Act makes it clear that the exhibits and depositions, whether D
received or taken in the presence of the person ag!linst whom they are used
or not, and copies thereof and offici;U certificates of facts and judicial
documents stating facts, if duly authenticated, can be received as evidence.
We are of the view that the documents referred to in Section 10 of the Act,
when placed on record along with the order of the Central Government
issued under Section 5 of the Act, are part of the evidence in support of E
extradition. The proceedings before the learned Magistrate show that the
Government of India wanted to produce Mr. G. Jagannathan before the
Magistrate and for that purpose he was present in the court on more than
one occasions but the appellant did not permit his evidence to be recorded
on one pretext or the other. We see no force in the contentions of the
learned counsel that there has been a violation of the provisions of Article
F
11 of the Treaty, and reject the same.

We may take up the last contention raised by Mr. G.L. Sanghi.
Relying upon Section 177, 188 and 190 of the Code of Criminal Procedure,
1973, the learned counsel contended that the inquiry. under the Act could G
only be conducted by Magistrate concerned at Erankulam in whose·juris-
diction George was apprehended. We see no force in the contention.
Section 2(g) and 5 of the Act are as under :-

"2(g) "magistrate" means a magistrate of the first class or a H
168 SUPREME COURT REPORTS (1993] SUPP. 3 S.C.R.

A presidency magistrate;

5. Orderfor magisterial inquily - Where such requisition is made,
the Central Government may, if it thinks fit, issue an order to any
magistrate who would have had jurisdiction to inquire into the
offence if it had been an offence committed within the local limits
B of his jurisdiction, directing him to inquire into the case."

It is obvious from the plain language of section 5 of the Act that the
Central Government can direct any Magistrate to hold inquiry provided
the said Magistrate would have had jurisdiction to inquire into the offence
C if it had been an offence committed within the local limits of his jurisdic-
tion. It is not disputed that the offence alleged to have been committed by
George in the letter of request by the State of America would, if committed
in the local limits of the Magistrate, have given the Magistrate jurisdiction
to inquire into the same. The Act, being a special provisions dealing with
the extradition of fugitive criminals, shall exclude from application the
D general provisions of the Code of Criminal Procedure, 1973. In any case,
Section 5 of the said Code gives overriding effect to the special jurisdiction
created under any special or local laws. Sections 177, 188 and 190 of the
Code have no application to the proceedings under the Act. We see no
force in the contention of the learned counsel and reject the same .
. E
As a result of the above discussion, we dismiss the criminal appeals
and the. writ petition.

George Kutty Kuncheria, the appellant, is wholly and solely respon-
sible for the gross delay in the conclusion of the extradition proceedings
F against him. We direct the learned Magistrate to record the evidence on
behalf of the Central Government, if necessary, on October 25 and 26,
1993. Thereafter, he shall given an opportunity to George to produce his
evidence in rebuttal, if he so desire, on November 4 and 5, 1993 and hear ·
the arguments thereafter. He shall send his report to the Government of
G India on or.before November 19, 1993. We further direct that in case
George fails to present himself in the court on one pretext of the other,
the Magistrate shall hold the proceedings in the jail premises and complete
the inquiry in accordance with the above schedule.

M~M. Appeals dismissed.