judgement:
iminal Appeal No. 14 of 1968.
Appeal by special leave from the judgment and order dated April 20, 1967 of the Calcutta High Court in Criminal Revision No. 502 of 1966.
B. Sen and P. K. Chakravarti, for the appellants.
A. section R. Chari, B. P. Maheshwari and Sobhag Mal Jain, for respondent No. 1.
The Judgment of the Court was delivered by Shah J.
In the course of investigation of offences under sections 420, 467, 471 and 120 B.I.P. Code the Officer in charge of the investigation submitted an application before the Chief Presidency Magistrate, Calcutta, for an order that a warrant for the arrest of Jugal Kishore More and certain other named persons be issued and that the warrant be, forwarded with the relevant records and evidence to the Ministry of External Affairs, Government of India, for securing extradition of More who was then believed to be in Hong Kong.
It was stated in the application that More and others "were parties to a criminal conspiracy in Calcutta between May 1961 and December 1962 to defraud the Government of India in respect of India 's foreign exchange", and their presence was required for trial.
The Chief Presidency Magistrate held an enquiry and recorded an order on July 19, 1965, that on the materials placed before him, a prima facie case was made out of a criminal conspiracy, 32 3 was "hatched in Calcutta" within his jurisdiction, and More was one of the conspirators.
He accordingly directed that a nonbailable warrant in Form 11 Sch.
V of the Code of Criminal Procedure be issued for the arrest of More, and that the warrant be sent to the Secretary Home (Political) Department, Government of West Bengal, with a request to take all necessary steps to ensure execution of the warrant.
A copy of the warrant was sent to the Commissioner of Police, Calcutta, for information.
In the warrant More was described as Manager, Premko Traders of 7, Wyndhan Street and 28, King 's Road, Hong Kong.
The Chief Presidency Magistrate forwarded to the Government of West Bengal, the warrant with attested copies of the evidence recorded at the enquiry and photostat copies of documents tendered by the prosecution in evidence "in accordance with the procedure laid down in Government of India, Ministry of External Affairs, letter No. K/52/ 6131/41 dated 21st May, 1955".
The warrant was forwarded by the Government of West Bengal to the Ministry of External Affairs, Government of India.
The Ministry of External Affairs forwarded the warrant to the High Commissioner for India, Hong Kong, who in his turn, requested the Colonial Secretary, Hong Kong, for an order extraditing More under the Fugitive Offenders Act, 1881, (44 and 45 Vict., c. 69), to India for trial for offences described in the warrant.
The Central Magistrate, Hong Kong, endorsed the warrant and directed the Hong Kong Police, "pursuant to section 13 of Part 11 and section 26 of Part IV of the Fugitive Offenders Act, 1881", to arrest More.
The order recited : "WHEREAS I have perused this warrant for the apprehension of Jugal Kishore More, .
accused of an offence punishable by law in Calcutta, Republic of India, which warrant purports to be signed by the Chief Presidency Magistrate, Calcutta, and 'is sealed with the seal of the Court of the said Magistrate, and is attested by section K. Chatterjee,.
Under Secretary in the Ministry of External Affairs of the Republic of India and sealed with the seal of the said Ministry; AND WHEREAS I am satisfied that this warrant was issued by a person having lawful authority to issue the same; AND WHEREAS it has been represented to me that the said Jugal Kishore More . is suspected of being in the Colony; AND WHEREAS Order in Council S.R. and 0.
No. 28 of 1918 by virtue of which Part 11 of the Fugitive Offenders Act, 1881, was made to apply to a group 324 of British Possessions and Protective States including Hong Kong and British India, appears to remain in full force and effect so far as the law of Hong Kong is concerned.
Now therefore under section 13 of the Fugitive Offenders Act, 1881, I hereby endorse this Warrant and authorise and command you in Her Majesty 's name, forthwith to execute this Warant in the Colony to apprehend the said Jugal Kishore More, .
wherever he may be found in the Colony and to bring him before a Magistrate of the said Colony to be further dealt with according to law.
" More was arrested on November 24, 1965.
By order dated April 4, 1966, the Central Magistrate, Hong Kong, over ruled the objection raised on behalf of More that the Court had no jurisdiction to proceed in the matter under the Fugitive Offenders Act, 1881, since the Republic of India was no longer a "British Possession".
On May 16, 1966, Hanuman Prasad father of More moved in the High Court of Calcutta a petition under section 439 of the Code of Criminal Procedure and article 227 of the Constitution for an order quashing the warrant of arrest issued against More and all proceedings taken pursuant thereto and restraining the Chief Presidency Magistrate and the Union of India from taking any further steps pursuant to the said warrant of arrest and causing More to be extradited from Hong Kong to India.
The petition was heard before a Division Bench of the High Court.
A. Roy, J., held that the warrant issued by the Chief Presidency Magistrate was not illegal and the procedure followed for securing extradition of More was not irregular.
In his view the assumption made by the Central Magistrate, Hong Kong, that for the purpose of the Fugitive Offenders Act, India was a "British possession" was irrelevant since that was only a view expressed by him according to the municipal law of Hong Kong, and by acceding to the requisition for extradition and surrender made upon that country by the Government of India in exercise of sovereign rights the status of the Republic of India was not affected.
In the view of Gupta, J., the warrant issued by the Chief Presidency Magistrate and the steps taken pursuant to the warrant were without jurisdiction, that the request made to the Hong Kong Government by the Government of India was also without authority in the absence of a notified order under section 3 of the , and the High Court could not ignore the "laws of the land, even to support a gesture of comity to another nation," that 325 what was done by the Hong Kong authorities pursuant to the request made for the surrender of More was "not an instance of international comity but was regarded as the legal obligation under the Fugitive Offenders Act under which the Central Magistrate, Hong Kong, regarded India as a Colony or Possession of the British Commonwealth".
The case was then posted for hearing before R. Mukherji, J.
The learned Judge held that the.
Chief Presidency Magistrate had no power to issue the warrant of arrest in the manner, he had done, a manner which in his view was "unknown to the Code of Criminal Procedure", since the Fugitive Offenders Act, 18 8 1, had ceased, on the coming into force of the Constitution, to be part of the law of India and could not on that account be resorted to for obtaining extradition if offenders from another country; that the instructions issued by the Government of India by letter No. 3516 J dated June 14, 1955, laying down the procedure to the followed by the courts for securing extradition 'of offenders from the Commonwealth countries should have been ignored by the Chief Presidency Magistrate, and that the 34 of 1962 did not authorise the Chief Presidency Magistrate to issue a warrant and to send it to the Secretary, Home (Political) Department, Government of West Bengal; that there "was no legal basis for the requisition made by the Central Government to Hong Kong" for extradition or surrender of More or for the issue of the warrant by the Chief ' Presidency Magistrate; and that the demand made by the Government of India to the Government of Hong Kong by making a requisition to Hong Kong for the arrest of More "was not a political act beyond the purview of law and judicial scrutiny" and being inconsistent with the law was liable to be rectified.
He observed that the Central Government had the power under section 3 of the , to issue a notification for including Hong Kong in the list of countries from which offenders may be extradited, but since the Government had not issued any notification under that clause in exercise of the executive power, the Government could not attempt in violation of the statutory procedure seek extradition which the law of India did not permit.
The learned Judge accordingly ordered that the warrant of arrest dated July 30, 1965, issued by the Chief Presidency Magistrate, Calcutta, against More and all subsequent proceedings taken by the Chief Presidency Magistrate and the other respondents be quashed.
The State of West Bengal has appealed to this Court with special leave.
Extradition is the surrender by one State to another of a person desired to be dealt with for crimes of which he has been accused or convicted and which are justiciable in the courts of the other State.
Surrender of a person within the State to another 326 State whether a citizen or an alien is a political act done in pursuance of a treaty or an arrangement ad hoc.
It is founded on the broad principle that it is in the interest of civilized communities that crimes should not go unpunished, and on that account it is recoginised as a part of the comity of nations that one State should ordinarily afford to another State assistance towards bringing offenders to justice.
The law relating to extradition between independent States is based on treaties.
But the law has operation national as well as international It governs international relationship between the sovereign States which is secured by treaty obligations.
But whether an offender should be handed over pursuant to a requisition is determined by the domestic law of the State on which the requisition is made.
Though extradition is granted in implementation of the international commitments 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.
As observed in Wheaten 's International Law, Vol. 1, 6th Edn., p. 213 : " 'The constitutional doctrine in England is that the Crown may make treaties with foreign States for the extradition of criminals, but those treaties can only be carried into effect by Act of Parliament, for the executive has no power, without statutory authority, to seize an alien here and deliver him to a foreign power.
" Sanction behind an order of extradition is therefore the international commitment of the State under which the Court functions, but Courts jealously seek to protect the right of the individual by insisting upon strict compliance with the conditions precedent to surrender.
The Courts of the country which make a requisition for surrender deal with the prima facie proof of the offence and leave it to the State to make a requisition upon the other ,State in which the offender has taken refuge.
Requisition for surrender is not the function of the Courts but of the State.
A warrant issued by a Court for an offence committed in a country from its very nature has no extra territorial operation.
It is only a command by the Court in the name of the sovereign to its officer to arrest an offender and to bring him before the Court.
By making a requisition in pursuance of a warrant issued by a ,Court of a State to another State for assistance in securing the presence of the offender, the warrant is not invested with extra territorial operation.
If the other State requested agrees to lend its aid to arrest the fugitive the arrest is made either by the issue ,of an independent warrant or endorsement or authentication of 'the warrant of the Court which issued it.
By endorsement or 327 authentication of a warrant the country in which an offender has taken refuge signifies its willingness to lend its assistance, in implementation of the treaties or international commitments and to secure the arrest of the offender.
The offender arrested pursuant to the warrant or endorsement is brought before the Court of the country to which the requisition is made, and the Court holds an inquiry to determine whether the offender may be extradited.
International commitment or treaty will be effective only if the Court of a country in which the offender is arrested after enquiry is of the view that the offender should be surrendered.
The functions which the Courts in the two countries perform are therefore different.
The Court within whose jurisdiction the offence is committed decides whether there is prima facie evidence on which a requisition may be made to another country for surrender of the, offender.
When the State to which a requisition is made agrees consistently with its international commitments to lend its aid the requisition is transmitted to the Police authorities, and the Courts of that country consider, according to their own laws whether the offender should be suffendered the enquiry is in the absence of express provisions to the contrary relating to the prima facie evidence of the commission of the offence which is extraditable, the offence not being a political offence nor that the requisition being a subterfuge to secure custody for trial for a political offence.
Prior to January 26, 1950, there was in force in India the Indian 15 of 1903, which as the preamble ex pressly enacted was intended to provide for the more convenient administration of the Extradition Acts of 1870 and 1873, and the Foreign Jurisdiction Act of 1881 both enacted by the British Parliament.
The Act enacted machinery in Ch.
II for the surrender of fugitive criminals in case of Foreign States i.e., States to which the of 1870 and 1873 applied and in Ch.
II for surrender of fugitive offenders in case of "His Majesty 's Dominions".
The Extradition Acts of 1870 and 1873 sought to give effect to arrangements made with foreign States with respect to the surrender to such States of any fugitive criminals Her Majesty may by Order in Council, direct and to prescribe the procedure for extraditing fugitive offenders to such foreign states.
As observed in Halsbury 's Laws of England Vol.
16, 3rd Edn., para 1161 at p. 567 : "When a treaty has been made with a foreign State and the Extradition Acts have been applied by Order in Council, one of Her Majesty 's principal Secretaries of State may, upon a requisition made to him by some person recognized by him as a diplomatic representative of 328 that foreign State, by order under his hand and seal, signify to a police magistrate that such a requisition has been made and require him to issue his warrant for the apprehension of the fugitive criminal if the criminal is in or is suspected of being in, the United Kingdom.
" The warrant may then be issued by a police magistrate on receipt of the order of the Secretary of State and upon such evidence as would in his opinion justify the issue of the warrant if the crime had been committed or the criminal convicted in England.
The procedure for extradition of fugitive offenders from "British possessions" was less complicated.
When the was applied by Order in Council unless it was otherwise provided by such Order, the Act extended to every "British possesSion" in the same manner as if throughout the Act the "British possession" were substituted for the United Kingdom, but with certain modifications in procedure.
Under Part I of the Fugitive Offenders Act 1881 a warrant issued in one part of the Crown 's Dominion for apprehension of a fugitive offender, could be endorsed for execution in another Dominion.
After the fugitive was apprehended he was brought before the Magistrate who heard the case in the same manner and had the same jurisdiction and powers as if the fugitive was charged with an offence committed within the Magistrate 's jurisdiction.
If the Magistrate was satisfied, after expiry of 15 days from the date on which the fugitive was committed to prison, he could make an order for surrender of the fugitive on the warrant issued by the Secretary of State or an appropriate officer.
There was also provision for "inter colonial backing of warrants" within groups of "British possessions" to which Part I of the Fugitive Offenders Act, 1881 has been applied by Order in Council.
In such groups a more rapid procedure for the return of fugitive offenders between possessions of the same group was in force.
Where in a "British possession", of a group to which Part II of the Act applied, a warrant was issued for the apprehension of a person accused of an offence punishable in that possession and such term is or was suspected of being, in or on the way to another British possession of the same group, a magistrate in the last mentioned possession, if satisfied that the warrant was issued by a person having lawful authority to issue the same, was bound to endorse such warrant, and the warrant so endorsed was sufficient authority to apprehend, within the jurisdiction of the endorsing magistrate the person named in the warrant and to bring him before the endorsing magistrate or some other magistrate in the same possession.
If the magistrate before whom a person apprehended was brought was satisfied that the war rant was duly authenticated and was issued 329 by a person having lawful authority to issue it, and the identity of the prisoner was established he could order the prisoner to be returned to the British possession in which the warrant was issued and for that purpose to deliver into the custody of the persons to whom the warrant was addressed or of any one or more of them, ,and to be held in custody and conveyed to that possession, there to be dealt with according to law as if he had been there apprehended.
This was in brief the procedure prior to January 26, 1950.
The President of India adapted the Extradition Act 1903, in certain particulars.
The Fugitive Offenders Act, 1881 and the Extradition Act, 1870, in their application to India were however not repealed by the Indian Parliament and to the extent they were consistent with the constitutional scheme they remained applicable.
In order to maintain the continued application of laws of the British Parliament, notwithstanding India becoming a Republic, the British Parliament enacted the India (Consequential Provision) Act 1949 which by section 1 provided : "(1) On and after the date of India 's becoming a republic, all existing law, that is to say, all law which, whether being a rule of law or a provision of an Act of Parliament or of any other enactment or instrument whatsoever, is in force on that date or has been passed or made before that date and comes into force thereafter, shall, until provision to the contrary is made by the authority having power to alter that law and subject to the provisions of sub section
(3) of this section, have the same operation in relation to India, and to persons and things in any way belonging to or connected with India, as it would have had if India had not become a republic.
(3)His Majesty may by Order in Council make provision for such satisfaction of any existing law to which this Act extends as may appear to him to be necessary or expedient in view of India 's becoming a republic while remaining a member of the Commonwealth, and sub section
(1) of this section shall have effect in relation to any such law as modified by such an order in so far as the contrary intention appears in the order.
An Order in Council under this section (a)may be made either before or after India becomes a republic, and may be revoked or varied by a subsequent Order in Council ', and 330 (b)shall be subject to annulment in pursuance of a resolution of either House of Parliament." In 1954 this Court was called_upon to decide a case relating to extradition to Singapore, a British Colony, of a person alleged to be a fugitive offender The State of Madras vs C. G. Menon and Another(1).
In that case Menon and his wife were apprehended and produced before the Chief Presidency Magistrate, Madras, pursuant to warrants of arrest issued under the provisions of the Fugitive Offenders Act, 1881.
Arrests were made in pursuance of requisition made by the Colonial Secretary of Singapore requesting the assistance of the Government of India to arrest and return to the Colony of Singapore Menons under warrants issued by the Police Magistrate of Singapore.
Menons pleaded that the Fugitive Offenders Act, 1881, under which the action was sought to be taken against them was repugnant to the Constitution of India and was void and unenforceable.
The Chief Presidency Magistrate.
referred two questions of law for decision of the High Court of Madras (1) Whether the Fugitive Offenders Act, 1881, applies to India after 26th January, 1950, when India became a Sovereign Democratic Republic; and (2)Whether, even if it applied, it or any of its provisions, particularly Part II thereof, is repugnant to the Constitution of India and is therefore void and or inoperative.
The High Court held that the Fugitive Offenders Act was in consistent with the fundamental right of equal protection of the laws guaranteed by article 14 of the Constitution and was void to that extent and unenforceable against the petitioners.
In appeal brought to this Court it was observed : "It is plain from the. . provisions of the Fugitive Offenders Act as well as from the Order in Council that British Possessions which were contiguous to one another and between whom there was frequent inter communication were treated for purposes of the Fugitive Offenders Act as one integrated territory and a summary procedure was adopted for the purpose of extraditing persons who had committed offences in these integrated territories.
As the laws prevailing in those possessions were substantially the same, the requirement that no fugitive will be surren dered unless a prima facie case was made against him was dispensed with.
Under the Indian Extradition (1)[1955] 1 S.C.R. 280. , also a similar requirement is insisted upon before a person can be extradited.
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 be described as a British Possession and 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 offences in British Possessions, could only be dealt with by an arrangement between the Sovereign Democratic Republic of India and the British Government and given effect to by appropriate legislation.
The Union Parliament has not so far enacted any law on the subject and it was not suggested that any arrangement has been arrived at between these two Governments.
The , has been adapted but the Fugitive Offenders Act, 1881, which was an Act of the British Parliament has been left severely alone.
The provisions of that Act could only be made applicable to India by incorporating them with appropriate changes into an Act of the Indian Parliament and by enacting an Indian Fugitive Offenders Act.
In the absence of any legislation on those lines it seems difficult to hold that section 12 or section 14 of the Fugitive Offenders Act has force in India by reason of the provisions of article 372 of the Constitution.
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. . . .
The political background and shape of things when Part II of the Fugitive Offenders Act, 1881, was enacted and envisaged by that Act having completely changed, it is not possible without radical legislative changes to adapt that Act to the changed conditions.
That being so, in our opinion, the tentative view expressed by the Presidency Magistrate was right.
After this judgment was delivered, the Government of India, Ministry of External Affairs, issued a notification on May 21, 1955, to all State Governments of Part A, B, C & D States.
It was stated in the notification that : ".
in a certain case of extradition of an offender, the Supreme Court of India recently ruled that in 332 the changed circumstances, the English Fugitive Offenders Act, 1881, is no longer applicable to India.
There can therefore, be no question of issuing a warrant of arrest, addressed to a foreign police or a foreign court, in respect of persons who are residing outside India except in accordance with the Code of Criminal Procedure, 1898.
2.In the circumstances, to obtain a fugitive offender from the United Kingdom and other Commonwealth countries, the following procedure may be adopted as long as the new Indian Extradition law is not enacted and the Commonwealth countries continue to honour our requests for the surrender of the fugitive offenders notwithstanding decisions of the Supreme Court; (a)The Magistrate concerned will issue a warrant 'for the arrest of the fugitive offender to Police officials ,of India in the usual form prescribed under the Code of 'Criminal Procedure, 1898.
(b)The warrant for arrest, accompanied by all such, documents as would enable a prima facie case to be established against the accused will be submitted by the Magistrate to the Government of India in the Ministry of External Affairs, through the State Government concerned.
3.This Ministry, in consultation with the Ministries ,of Home Affairs, and Law, will make a requisition for the surrender of a fugitive offender in the form of a letter, requesting the Secretary of State (in the case of dominions, the appropriate authority in the dominion) to get the warrant endorsed in accordance with law.
This letter will be addressed to the Secretary of State, (or other appropriate authority in case of Dominions) through the High Commissioner for India in the United Kingdom/Dominion concerned and will be accompanied by the warrant issued by the Magistrate at (a) of para 2 above and other documents received therewith.
" The Chief Presidency Magistrate Calcutta made out the warrant for the arrest of More pursuant to that notification and sent the warrant to the Secretary, Home (Political) Department, Government of West Bengal.
Validity of the steps taken in accordance with the notification by the Chief Presidency Magistrate is questioned in this appeal.
To complete the narrative, it is necessary to refer to the Extradition Act 34 of 1962.
The Parliament has enacted Act 34 333 of 1962 to consolidate and amend the law relating to ' extraction of fugitive criminals.
It makes provisions by Ch.
II for extradition of fugitive criminals to foreign States and to commonwealth countries to which Ch.
HI does not apply Chapter III deals with the return of fugitive criminals to commonwealth countries with extradition arrangements.
By section 12 it is provided "(1) This Chapter shah apply only to any such commonwealth country to which, by reason of an extradition arrangement entered into with that country, it may seem expedient to the Central Government to apply the same.
(2)every such application shall be by notified order, and the Central Government may, by the same or any subsequent notified order, direct that this Chapter and Chapters 1, IV and V shall, in relation to any such commonwealth country, apply subject to such modifications, exceptions, conditions and qualifications as it may think fit to specify in the order for the purpose of implementing the arrangement.
" Section 13 provides that the fugitive criminals from common wealth countries may be apprehended and returned.
Chapter IV deals with the surrender or return of accused or convicted persons from foreign States or commonwealth countries.
By section 19 it was provided that (1)A requisition for the surrender of a person accused or convicted of an extradition offence committed in India and who is or is suspected to be, in any foreign State or a commonwealth country to which Chapter III does not apply, may be made by the Central Government (a)to a diplomatic representative of that State or country at Delhi; or (b)to the Government of that State or country throughthe diplomatic representative of India in that State or country; and if neither of these modes is convenient, the requisition shall be made in such other mode as is settled by arrangement made by the Government of India with that State or country.
(2)A warrant issued by a magistrate in India for the apprehension of any person who is, or is suspected to be, in any Commonwealth country to which Chapter III applies shall be in such form as may be 'prescribed.
8 Sup CI/69 3 334 BY cl.
(a) of section 2 the expression "commonwealth country" means 'a commonwealth country specified in the First Schedule, and such other commonwealth country as may be added to that Schedule by the Central Government by notification in the Official Gazette, and includes every constituent part, colony or dependency of any, commonwealth country so specified or added :".
But in the Schedule to the Act "Hong Kong" is not specified as one of the commonwealth country and no notification ,has been issued by the Government of India under section 2(a) adding to the First Schedule "Hong Kong ' as a commonwealth country.
It is common ground between the parties that the provisions of the , could not be resorted to for making the requisition for surrender of the fugitive offender from Hong Kong, and no attempt was made in that behalf.
Validity of the action taken by the Chief Presidency Magis trate must therefore, be adjudged in the light of the action taken pursuant to the notification issued by the Government of India on May 21, 1955.
Counsel for the respondent More urged that the warrant issued by the Chief Presidency Magistrate was intended to be and could in its very nature be a legal warrant enforceable within India : it had no extra territorial operation, and could not be enforced outside India, and when the Central Magistrate Hong Kong, purported to endorse that warrant for enforcement within Hong Kong he had no authority to do so.
But this Court has no authority to sit in judgment over the order passed by the Hong Kong Central Magistrate.
The Magistrate acted in accordance with the municipal law of Hong Kong and agreed to the surrender of the offender : his action cannot be challenged in this Court.
It may also be pointed out that Form II of the warrant prescribed in Sch.
V of the Code of Criminal Procedure only issues a direction under the authority of the Magistrate to a Police Officer to arrest a named person and to produce him before the Court.
It does not state that the warrant shall be executed in any designated place or area.
By section 82 of the Code of Criminal Procedure a warrant of arrest may be executed at any place in India.
That provision does not impose any restriction upon the power of the Police Officer.
The section only declares in that every warrant issued by any Magistrate in India may be executed at any place in India, execution of the warrant is not restricted to the local limits of the jurisdiction of the Magistrate issuing the warrant or of the Court to which he is subordinate.
In Emperor vs Vinayak Damodar Savarkar and Ors.
(1) the Bombay High Court considered the question whether a person who was brought to the country and was charged before a Magis (1) I.L.R. 335 trate with an offence under the Indian Penal Code was entitled to challenge the manner in which he was brought into the country from a foreign country.
Savarkar was charged with conspiracy under sections 121, 121A, 122 and 123 of the Indian Penal Code.
He was arrested in the United Kingdom and brought to India after arrest.
under the Fugitive Offenders Act, 1881.
When the ship in which he was being brought to India was near French territory Savarkar escaped from police custody and set foot on French territory at Marseilles.
He was arrested by the police officers without reference to the French police authorities and brought to India.
It was contended at the trial of Savarkar that he was not liable to be tried in India, since arrest by the Indian police officers in a foreign territory was without jurisdiction.
Scott, C.J., who delivered the principal judgment of the Court rejected the contention.
He observed : "Where a man is in the country and is charged before a Magistrate with an offence under the Penal Code it will not avail him to say that he was brought there illegally from a foreign country.
" It is true that Savarkar was produced before the Court and be raised an objection about the validity of the trial on the plea that he was illegally brought to India after unlawful arrest in foreign territory.
In the present case we are concerned with a stage anterior to that.
The respondent More though arrested in a foreign country lawfully, by the, order of the Central Magistrate, Hong Kong, had not been surrendered and the invalidity of the warrant issued by the Chief Presidency Magistrate is set up as a ground for refusing to obtain extradition of the offender.
But on the principle of Vinayak Damodar Savarkar 's case(1) the contention about the invalidity of the arrest cannot affect the jurisdiction of the Courts in India to try More if and when he is brought here.
The 15 of 1903 which was enacted to provide for the more convenient administration of the English Extradition Act, 1870 & 1873 and the Fugitive Offenders Act.
1881, remained in operation.
But after January 26, 1950, India is no longer a "British Possession." In C. G. Menon 's case (2) it was decided by this Court that application of sections 12 and 14 of the Fugitive Offenders Act, 1881, for surrendering an offender to a Commonwealth country in pursuance of a requisition under the Fugitive Offenders Act, 1881, is inconsistent with the political status of India.
It is somewhat unfortunate that the Court hearing that case was not invited to say anything about the operation of the India (Consequential Provision) Act, 1949.
But C. G. Menon 's case(2) was a reverse case, in that, the Colonial Secretary of Singapore had made a requisition for (1) I.L.R. (2) ; 336 surrender of the offender for trial for offences of criminal breach of trust in Singapore.
Whether having regard to the political status of India since January 26, 1950, the Fugitive Offenders Act, 1881, insofar as it purported to treat India as a "British Possession" imposed an obligation to.
deliver offenders in pursuance of the India (Consequential Provision) Act 1949.
is a question on which it is not necessary to express an opinion.
By the declaration of the status of India as a Republic, India has not ceased to be a part of the Commonwealth and the United Kingdom and several Colonies have treated the Fugitive Offenders Act, 1881, as applicable to them for the purpose of honouring the requisition made by the Republic of India from time to time.
In Re. Government of India and Mubarak Ali Ahmed(1) an attempt to resist in the High Court in England the requisition by the Republic of India to surrender an offender who had committed offences in India and had fled justice failed.
Mubarak Ali a native of Pakistan was being tried in the Courts in India on charges of forgery and fraud.
He broke his bail and fled to Pakistan and thereafter to England.
He was arrested on a pro ' visional warrant issued by the London Metropolitan Magistrate on the application of the Government of India.
After hearing legal submissions the Metropolitan Magistrate made an order under section 5 of the Fugitive Offenders Act, 1881, for Mubarak Ali 's detention in custody pending his return to India to answer the charges, made against him.
Mubarak Ali then filed a petition for a writ of habeas corpus before the Queen 's Bench of the High Court.
It was held that the Fugitive Offenders Act, 1881, was in force between India and Great Britain on January 26,,1950, when India become a republic and it was continued to apply by virtue of section 1 (1) of the India (Consequential Provision) Act, 1949, and, therefore, the Magistrate had jurisdiction to make the order for the applicant 's return.
Pursuant to the requisitions made by the Government of India,, Mubarak Ali was surrendered by the British Government.
Mubarak Ali was then brought to India and was tried and convicted.
One of the offences for which he was tried resulted in his conviction and an appeal was brought ' to this Court in Mobarik Ali Ahmed v, The State of Bombay(2) There are other cases as well, in which orders were made by the British Courts complying with the requisitions made by the Governments of Republics within the Commonwealth, for extradition of offenders under the Fugitive Offenders Act, 1881.
An offender from Ghana was ordered to be extradited Pursuant to the Ghana (Consequential Provision) Act, 1960, even after Ghana became are public Re.
Kwesi Armah(3).
On July 1,1960, Ghana while remaining by virtue of the Ghana (Consequential (1) (3)[1966] ; 2 All E.R. 1006.(2) 3 37 Provision) Act, 1960, a member of the Comon wealth became a Republic.
Kwesi Armah who was a Minister in Ghana fled the, country in 1966 and took refuge in the United Kingdom.
He was arrested under a provisional warrant issued under the Fugitive Offenders Act, 1881.
The Metropolitan Magistrate being satisfied that the Act of 1881 still applied to Ghana and that a prima facie case had been made out against the applicant in respect of two alleged contravention of the Ghana Criminal Code, 1960, by corruption and extortion when he was a public officer,commited Kwesi Armah to prison pending his return to Ghana to undergo trial.
A petition for a writ of habeas corpus before the Queen '& Bench Division of the High Court was refused.
Edmund Davies, J., was of the view that the Act of 1881 applied to the Republic of Ghana, in its new form, just as it did before the coup d 'etat of February 1966.
The case was then carried to the House of Lords; Armah vs Government of Ghana and Another(1).
The questions decided by the House of Lords have no relevance in this case.
But it was not even argued that a fugitive offender from a republic which was a member of the Commonwealth could not be extradited under the Fugitive Offenders Act, 1881.
There is yet another recent judgment of the House of Lords dealing with repatriation of a citizen of the Republic of Cyprus Zacharia vs Republic of Cyprus and Anr.
(2) Warrants were issued against Zacharia on charges before the, Courts in Cyprus of offences of abduction, demanding money with menaces and murder.
Under the orders issued by a Bow Street Magistrate under section 5 of the Fugitive Offenders Act, 1881, Zacharia was committed to prison pending his return to Cyprus.
An application for a writ of habeas corpus on the ground that the offences alleged against him were political and that the application for the return of the fugitive was made out of motive for revenge was rejected by the Queen 's Bench Division and it was ordered that Zacharia be repatriated.
The order was confirmed in appeal to the House of Lords.
Merely because for the purpose of the extradition procedure, in a statute passed before the attainment of independence by the former Colonies and dependencies, certain territories continue to be referred to as "British Possessions" the statute does not become inapplicable to those territories.
The expression "British Possession" in the old statutes merely survives an artificial mode of reference, undoubtedly not consistent with political realities, but does not imply for the purpose of the statute or otherwise political dependence.
of the Government of the territories referred to.
It is not for the Courts of India to take umbrage at expressions used in statutes of other countries and to refuse to give effect to Indian laws which govern the problems arising before them.
(1) (2) ; 338 It is interesting to note that by express enactment the Fugitive.
Offenders Act, 1881, remains 'in force as a part of the Republic of Ireland : see Ireland Act, 1949 (12, 13 and 14 Geo.
6 c. 41).
In Halsbury 's Laws of England, 3rd Edn., Vol.
5 article 987, p. 433 in dealing with the expression "Her Majesty 's Dominions" in old statutes, it is observed : "The term 'Her Majesty 's dominions, means all the territories under the sovereignty of the Crown, and the territorial waters adjacent thereto.
In special cases it may include territories under the protection of the Crown and mandated and trust territories.
References to Her Majesty 's dominions contained in statutes passed before India became a republic are still to be construed as including India; it is usual to name India separately from Her Majesty 's dominions in statutes passed since India became a republic." In foot note (1) on p. 433 it is stated, British India, which included the whole of India except the princely States; and the Government of India Act, 1935 as amended by section 8 of the India and Burma (Miscellaneous.
Amendments) Act, 1940, formed part of Her Majesty 's dominions and was a British possession, although it was not included within the definition of "colony".
The territory comprised in British India was partitioned between the Dominions of India and Pakistan (Indian Independence Act, 1947), but the law relating to the definition ' of Her Majesty 's dominions was not thereby changed, and it was continued in being by the India (Consequential Provision) Act, 1949 (12, 13 & 14 Geo.
6 c. 92), passed in contemplation of the adoption of a re publican constitution by India.
India is now a sovereign republic, but that by itself does not render the Fugitive Offenders Act, 1881, inapplicable to India.
If the question were a live question, we would have thought it necessary to refer the case to a larger Bench for considering the true effect of the judgment in C. G. Menon 's case(").
But by the Extradition Act 34 of 1962 the Extradition Act, 1870 and the latter Acts and also the Fugitive Offenders Act, 1881, have been repealed and the question about extradition by India of fugitive offenders under those Acts will not hereafter arise.
We are not called upon to consider whether in exercise of the Power under the Fugitive Offenders Act a Magistrate in India may direct extradition of a fugitive offender from a "British Possession", who has taken refuge in India.
It is sufficient to observe that the Colonial Secretary of Hong Kong was according to the law applicable in Hong Kong competent to give effect to the warrant issued by the Chief Presidency Magistrate, Calcutta, and the Central (1)[1955] 1 S.C.R. 280.
339 Magistrate, Hong Kong, had jurisdiction under the Fugitive Offender& Act, and, after holding inquiry, to direct that More be surrendered to India.
The order of surrender was valid according to the law in force in Hong Kong, and we are unable to appreciate the grounds on which invalidity can be attributed to the warrant issued by the Chief Presidency Magistrate, Calcutta, for the arrest of More.
That the Chief Presidency Magistrate was competent to issue a warrant for the arrest of More against whom there was prima facie evidence to show that he had committed an offence in India is not denied.
If the Chief Presidency Magistrate had issued the warrant to the Commissioner of ' Police and the Commissioner of Police had approached the Ministry of External Affairs, Government of India, either through the local Government or directly with a view to secure the assistance of the Government of Hong Kong for facilitating extradition of More, no fault can be found.
But Gupta, J., and Mukherjee, J., thought that the notification issued by the Government of India setting out the procedure to be followed by a Magistrate, where the offender is not in Indian territory and his extradition is to be secured, amounted to an invasion on the authority of the Courts.
We do not think that any such affront is intended by issuing the notification.
The Fugitive Offenders Act,, 1881, had not been expressly repealed even after January 26, 1950.
It, had a limited operation: the other countries of the Commonwealth were apparently willing to honour the international commitments which arose out of the provisions of that Act.
But this Court on the view that since India had become a Republic, held that the Fugitive Offenders Act could not be enforced in this country, presented to the Government of India a problem which had to be resolved by devising machinery for securing the presence of offenders who were fugitives from justice.
The notification issued was only in the nature of advice about the procedure to be followed and did not in any manner seek to impose any executive will upon the Courts in matters judicial.
Observations made by Mukherji, J., that the notification issued by the Central Government authorising the Chief Presidency Magistrate to issue the warrant in the manner he had done, came "nowhere near the law" and "to a Court of law it is waste paper beneath its notice" appear to proceed upon an incorrect view of the object of tile notification.
The Chief Presidency Magistrate had the power to issue the warrant for the arrest of More, because there was prima facie evidence before him that More had committed certain offences which he was competent to try.
The warrant was in Form II of Sch.
V of the Code of Criminal Procedure.
If the warrant was to be successfully executed against More who was not in India, assistance of the executive Government had to be obtained.
It is not an invasion upon the authority of the Courts when they are informed that certain procedure may be followed for obtaining 340 the assistance of the executive Department of the State in securing through diplomatic channels extradition of fugitive offenders.
In pursuance of that warrant, on the endorsement made by the Central Magistrate, Hong Kong, More was arrested.
The warrant was issued with the knowledge that it could not be enforced within India and undoubtedly to secure the extradition of More.
Pursuant to the warrant the Ministry of External Affairs, Government of India, moved through diplomatic channels, and persuaded the Colonial Secretary of Hong Kong to arrest and deliver More.
Issue of the warrant and the procedure followed in transmitting the warrant were not illegal, not even irregular.
One more argument remains to be noticed.
It is true that under the Extradition Act 34 of 1962 no notification has been issued including Hong Kong in the list of the Commonwealth countries from which extradition of fugitives from justice may be secured.
The provisions of the , cannot be availed of for securing the presence of More for trial in India.
But that did not, in our judgment, operate as a bar to the requisition made by the Ministry of External Affairs, Government of India, if they were able to persuade the Colonial Secretary, Hong Kong, to deliver More for trial in this country.
If the Colonial Secretary of Hong Kong was willing to hand over More for trial in this country, it cannot be said that the warrant issued by the Chief Presidency Magistrate for the arrest of More with the aid of which requisition for securing his presence from Hong Kong was to be made, was illegal.
We are unable to agree with the High Court that because of the enactment of the 34 of J962 the Government of India is prohibited from securing through diplomatic channels the extradition of an offender for trial of an offence committed within India.
There was, in our judgment,, no illegality committed by the Chief Presidency Magistrate, Calcutta, in sending the warrant to the Secretary, Home (Political) Department, Government ,of West Bengal, for transmission to the Government of India, Ministry of External Affairs, for taking further steps for securing the presence of More in India to undergo trial.
The appeal must therefore be allowed and the order passed by the High Court set aside. 'Me writ petition filed by More must be dismissed.
Y.P. Appeal allowed.

summary:
After this Court held in State of Madras vs C. G. Menon, ; that the Fugitive Offenders Act, 1881, was inconsistent with article 14 of the Constitution and was on that account unenforceable after 26th January 1950, the Government of India, Ministry of External Affairs issued a notification on May 21, 1955 indicating the procedure for securing the presence of a fugitive offender in India from the United Kingdom and other Commonwealth countries.
Under the Notification, the Magistrate concerned is to issue a warrant of arrest of the fugitive offender under the Criminal Procedure Code, 1898, and the warrant is to be sent to the Government of India, Ministry of External Affairs through the concerned State Government.
Thereafter, the Ministry is to address the appropriate authority in the Commonwealth country through the High Commissioner for India for the surrender of the fugitive offender.
In 1962, the Indian Extradition Act was passed, but as Hong Kong was not included in the First Schedule, that Act could not be resorted for the surrender of the respondent who was a fugitive offender residing in Hong Kong.
Action was therefore taken in the present case, pursuant to the notification.
The Chief Presidency Magistrate Calcutta issued a warrant under the Criminal Procedure Code for the arrest of the respondent and the warrant was forwarded by the Government of West Bengal to the Ministry of External Affairs, Government of India.
The Ministry forwarded the warrant to the High Commissioner for India, Hong Kong, who in his turn requested the Colonial Secretary, Hong Kong, for an order extraditing the respondent under the Fugitive Offenders Act 1881 (44 & 45 Vict Ch. 69).
The Central Magistrate, Hong Kong, endorsed the warrant and directed the Hong Kong police to arrest the respondent referring to the Republic of India as a British possession to which the Fugitive Offenders Act was applicable.
On the questions : (1) Whether the Chief Presidency Magistrate had no power to issue the warrant as it would have extraterrestrial operation; (2) Whether the Fugitive Offenders Act, having ceased to be part of the law of India, could be resorted to for obtaining extradition of fugitive offenders; (3) Whether the instructions of the Government of India for obtaining extradition are an invasion upon the authority of courts; and (4) Whether the , operates as a bar to the requisition made by the Ministry of External Affairs for the extradition of the ,respondent, HELD : (1) The Courts of the country which make a requisition for surrender proceed upon prima facie proof of the offence and leave it to the State to make a requisition upon the other State, in which the offender has taken refuge.
Under section 82 of the Criminal Procedure Code, when a warrant is issued by a Magistrate in India, it can be executed anywhere 321 in India and has no extra territorial operation.
By making a requisition to another State, in pursuance of such a warrant, for assistance in securing the presence of the offender, the warrant is not invested with extraterritorial operation.
If the other State requested Agrees to lend its aid to arrest the fugitive, the arrest is made by the issue of an independent warrant or endorsement or authentication of the warrant of the court which issued it.
By such endorsement or authentication the State expresses its willingness to lend its assistance in implementation of treaties or international commitments to secure the arrest of the offender.
The offender arrested pursuant to the warrant or endorsement is brought before the Court of the country to which requisition is made and that court holds enquiry to determine whether the, offender may be extradited.
[326 F327B] Courts in India have no authority to sit in judgment over the order passed by the Hong Kong Magistrate.
He acted in accor dance with the municipal law of Hong Kong and agreed to surrender the offender : his action cannot be challenged in this Court even if it is wrong.
The invalidity of the arrest in Hong Kong, if any, cannot affect the jurisdiction of Indian Courts to try the respondent if and when he is brought here.
[334] Emperor vs Vinayak Damodar Savarkar, I.L.R. , approved.
(2)But, in fact the Colonial Secretary of Hong Kong was, according 0 the law applicable in Hong Kong, competent to give effect to the warrant issued by the Chief Presidency Magistrate, Calcutta and the Central Magistrate, Hong Kong had jurisdiction under the Fugitive Offenders Act to direct that the respondent may be surrendered to India.
Whatever may he the position in India after it has become a Republic the United Kingdom and several Colonies have treated the Fugitive Offenders Act is applicable for the purpose of honouring the requisition made by the republic of India.
Merely because, for the purpose of the extradition procedure, in a statute passed before the attainment of independence by the former colonies and dependencies, certain territories continue to be referred as 'British Possessions ' the 'statute does not become inapplicable to those territories.
The expression 'British Possessions ' in the old statutes merely survives as an artificial mode of reference.
Though it is not consistent with the political realities, it does not imply political dependence of the Governments of the territories referred to.
The order of surrender passed by the Magistrate in Hong Kong was valid according to.
the law in force in Hong Kong.
[338 H; 337G] Re.
Government of India and Mubarak Ali Ahmed, , Re.
Kweshi Armah , Zacharia vs Republic of Cyprus, ; and Halsbury 's Laws of England 3rd edn.
5 article 987, p. 433, referred to.
(3) This Court, by holding in C. G. Menon 's case that since India became a Republic the Fugitive Offenders Act could not be enforced in his country, presented the Government of India with a problem which had to be resolved by devising a machinery for securing the presence of fenders who, were fugitives from justice.
The notification was issued only in the nature of advice about the procedure to be followed and was not in any manner intended as an affront to the Courts or to impose any executive will upon the courts in judicial matters.
[339 E F] In the present case, the Chief Presidency Magistrate, Calcutta, had power to issue the warrant for the arrest of the respondent because there was prima facie evidence against him.
If the warrant was to be success 322 fully executed a against the.
Respondent, who was not in India, the assistance of the executive government had to be obtained.
Therefore, the issue of the warrant and the procedure followed in transmitting it were not illegal and not even irregular.
(4)Extradition is the surrender by one State to another of a person desiredto be dealt with for crimes of which he had been accused or convicted.
Such a surrender is a political act done in pursuance of a treaty or an ad hoc arrangement, and founded upon the principle that it is in the interest of all civilised communities that criminals should not go unpunished.
While the law relating to extradition between independent States is based on treaties, whether an offender should be handed over pursuant to a requisition is determined by the domestic law of the State on which the requisition is made.
Therefore, the fact that the , could not be availed of for securing the presence of the respondent for trial in India, did not operate as a bar to the requisition made by the Ministry of External Affairs, Government of India, if they were able to puksuade the Colonial Secretary, Hong Kong, to deliver the respondent for trial in this country.
if the Colonial Secretary was willing to do so, it cannot be said that the warrant issued by the Chief Presidency Magistrate, Calcutta, for the arrest of the respondent with the aid of the requisition for securing his presence from Hong Kong in India, was illegal.
[325 H; 340 C F]


judgement:
iminal Appeals NO. 158 and 197 of 1968.
Appeals by certificate/special leave from the judgment and order dated November 3, 1967 of the Punjab and Haryana High Court in Criminal Appeal No. 602 of 1967 and Murder Refer ence No. 45 of 1967.
J.P. Mitter, J. C. Talwar and R. L. Kohli for the, appellant (in both the appeals).
Kartar Singh Chawla and R. N. Sachthey, for the, respondent (in both the appeals).
The Judgment of the Court was delivered by Ramaswaini, J.
The appellant Piara Singh and one Nand Lal Sehgal were tried together by the Sessions Judge of Kapurthala, who by his judgment dated 1st July, 1967 convicted the appellant under section 302 I.P.C. and sentenced him to death.
The appellant was also Convicted and sentenced to 5 years ' rigorous imprisonment under section 3 of the Explosive Substances Act and to 5 years ' rigorous imprisonment under section 326 of the Indian Penal Code.
Nand Lal Sehgal was sentenced to life imprisonment under section 302 read with sections 109 and 113, I.P.C. and to 5 years ' rigorous imprisonment under section 4 of the Explosive Substances Act.
Both the convicted persons filed appeals in the.
Punjab and Haryana High Court, viz. Criminal Appeal No. 602 of 1967 and 601 of 1967.
The State of Punjab also filed a criminal revision No. 1006 1967 for enhancement.
of sentence of Nand Lal Sehgal.
By a of common judgment dated 3rd November, 1967, the High Court dismissed the appeal of the appellant and confirmed the sentence of death imposed upon him.
The High Court, however, acquitted Nand Lal Sehgal by allowing his appeal and dismissed the revision petition filed by the State of Punjab.
These are two appeals one by certificate and the other by special leave on behalf of the appellant Piara Singh against the judgment of the Punjab and Haryana High Court dated 3rd November, 1967.
The case, of the prosecution was that one Ram Sahai P.W, 19, who was the organising Secretary of Jagatjit Kapra Mills.
Mazdoor Union, Phagwara, had proceeded on hunger strike from 1st October; 1966 in front of the gate of the Jagatjit Textile Mills, Phagwara (hereinafter called the Mills) in order to compel the management to accept certain demands of that Union regarding dearness allowance, gratuity.
for re employment of the labourers who had been turns out of service and the like.
The hunger strike of, Ram Sahai was supposed to last till death or the acceptance of the 238 demands by the Mills whichever was earlier.
A tent had been fixed outside the gate of the Mills and Ram Sahai used to sit on a cot under the tent.
On 4th October, 1966, at 1.45 p.m. Ram Labhaya, Postman, P.W. 31 came there with a registered parcel addressed to Ram Sahai.
On the parcel being opened, a bomb inside it exploded, as a result of which Radhey Sham, Shadi Lal and Charanjit Lal died and P.W. 1 1 Chanan Singh, P. W. 14 Moti Lal, P.W. 16 Madhu Parshad, P.W. 17 Tara Singh, P.W. 18 Ram Dass, P.W. 20 Muni Lal and P.W. 21 Naunihal Singh received injuries.
It is alleged for the prosecution that tile parcel had been despatched by the appellant from Amritsar at the instance of Nand Lal Sehgal and that the approver Mohinder Singh had helped the appellant in preparing the parcel containing the bomb.
The first clue in connection with the crime was obtained by the police on 8th October, 1966 when at about 4.00 p.m., P.W. 25 Amrik Singh, a resident of Amritsar appeared before Sub Inspector Mohinderpal Singh.
P.W. 59 and made a statement that he had known Piara Singh before and was friendly with him, that on 3rd October, 1966, Piara Singh who was carrying a Jhola, which appeared to contain something bulky, met him and.
in response to an invitation for tea, told Amrik Singh that he was in a hurry to go for some work.
Three or four days later, Amrik Singh read in a newspaper regarding explosion of a bomb near the Textile Mills Phagwara On the 7th October, 1966, Sri Niwas, P.W. 27 who ', is a deed writer, met him and told him that Piara Singh had despatched a parcel from Amritsar.
The most important witness in the case, is Mohinder Singh, P.W. 8 who was tendered pardon under section 337 of the Code of Criminal Procedure by the District Magistrate, Kapurthala.
The evidence of approver is to the effect that he was working in the Mills since 1951 and three or four years later Piara Singh also joined service in that Mills and was working as his subordinate.
Piara Singh developed cordial relations with Nand Lal Sehgal and used to assist him in breaking up labour strikes.
One and a half months before the occurrence, Piara Singh came to the approver 's residence and told him that Sehgal wanted one Ram Singh who Was employed in the Textile Mills.
Ganga Nagar, to be killed, Piara, Singh suggested the device of sending a bomb in a parcel to the victim and when the parcel would be opened, the bomb would explode.
About 15 days before the incident, Piara Singh again came to the approver and told him that he had secured a bomb and he wanted to get prepared two wooden boxes, one smaller in size.
than the other.
The approver and Piara Singh thereafter went to the shop of Nazar Singh P.W.22 a carpenter of Phagwara, who made the box.
Later in the evening they went to of Gian Singh, P.W. 23 a carpenter of village Chachoki,which is said to be half a mile from Phagwara.
Piara Singh got prepared 239 from him six pieces of phaties of raw wood.
After it had become dark, Piara Singh brought to the approvers house these articles as also a bomb saying that he had removed the fuse of the bomb so that if it should fall, it may not explode.
On 2nd October, 1966 Piara Singh came to the approver 's house at 10 pm.
and informed him of Sehgal 's intention that the bomb should now be sent so as to explode at Ram Sahai who was the leader of the strikers at Phagwara.
Piara Singh thereafter prepared a wooden box from the six pieces ' of phaties.
The, approver described the arrange ment, for packing the bomb as follows: "Placing the fuse in the bomb after removing the pin and placing a wire in its place, we placed it in that ,box.
Then the box was closed and the lid was placed on it with Kabza and Kundi.
In that Kundi a nut was placed and a bolt was fitted in it so that the box may not open.
Then the box was also tied with strings so that the Phaties may not give way on account of the pressure of the lever.
Then from the hole, which was on one side of the box corresponding to, the wire fitted in the bomb, the wire was pulled out.
Then that wooden box was placed in the bigger box.
Piara Singh accused had brought with him a piece of Khaddar cloth and a parcel was made of the bigger box in that cloth.
The pieces of Khaddar which were spare placed in between the two boxes so that the smaller box may not move inside the bigger box.
Because of the spare pieces of cloth were not sufficient so I gave two shirts of my children to Piara Singh.
Those shirts were of Poplin of blue colour.
Piara Singh tore one shirt into pieces and placed those pieces also in between those boxes.
Before the parcel was prepared in the Khaddar cloth the bigger box was secured with nails.
" At, about 1 a.m. the approver and Piara Singh went to the house of Sehgal and explained to him how they had prepared the parcel.
Piara Singh told Sehgal that when Ram Sahai would open the parcel the bomb would explode and he would die.
made over a sheet of paper to Piara Singh on which was written the address of Ram Sahai.
Sehgal also gave Rs. 40/ to Piara Singh for expenses and instructed him that the parcel had to.
be sent through the Post Office at Amritsar.
Next day on 3rd October, 1966 Piara Singh came to the approver in the morning carrying a Jhola in which he placed the parcel containing the wooden box.
The approver took Nara Singh to the Railway Station Phagwara.
In the evening Piara Singh returned at about 6 p.m. and told the approver that he had got the parcel despatched as directed by Sehgal from Am where he a so met Amrik Singh.
Both of them then went to the house of Sehgal and 240 Piara Singh banded over the registration receipt to him saying that it should be destroyed.
At about 2 p.m. on the next day, i.e, 4th October, 1966, the approver learnt about the explosion of the bomb, The High Court considered that the statement of the approver Was sufficiently corroborated by the evidence of Nazar Singh P.W. 22, Gian Singh P.W. 23, Sardara Singh P.W. 24, Amrik Singh P.W. 25 and Sri Niwas P.S. 27 so far as the appellant was 'Concerned.
The High Court accordingly held that charges under Ss. 302 and 326, I.P.C. and section 3 of the Explosive Substances Act were established against the appellant.
As regards Nand Lal Sehgal the High Court took the view that there was no independent corroboration of the approver 's evidence which could reasonably lead to the inference that Sehgal was instrumental in the commission of the crime.
The High Court, therefore, acquitted Nand Lal Sehgal.
In support of his appeal Mr. Mitter contended, in the first place, that by reason of the acquittal of Nand Lal Sehgal the evidence given in the case concerning Nand Lal Sehgal must be totally rejected.
It was contended that the evidence of the approver so far as it concerns Nand Lal Sehgal must be eliminated.
In other words, the argument was that the effect of acquittal of Nand Lal Sehgal was to weaken if not to destroy the approver 's evidence so far as it concerns the appellant also In this connection Mr. Mitter relied upon the principle of issue estoppel and referred to the decision of the Judicial Committee in Sambasivam vs Public Prosecutor, Federation of Malaya,(1), and the decision of this Court in Pritam Singh vs State of Punjab,(2) and Manipur Administration vs Thokchom Bira Singh(").
In our opinion, there is no justification for this argument.
It is true that Nand Lal Sehgal was acquitted by the High Court which took the view that the evidence of the approver was not corroborated so far as Nand Lal Sehgal was concerned.
But there is no finding of the High Court that the approver had implicated Nand Lal.
Sehgal falsely.
The High Court considered that there was no legal corroboration of the approver 's evidence as regards Nand Lal Sehgal and in the absence of such corroboration it was not safe to upheld the conviction of Sehgal.
That is a different thing from saying that the Court found that the approver 's evidence regarding the participation of Nand Lal Sehgal is false.
In any event, the principle of issue estoppel has no application to the present case.
It should be stated that the principle ' of issue estoppel is different from the principle of double jeopardy or autre fois acquit as embodied in section 403 of the Criminal Procedure Code.
The prin (1), [1950] A.C.458.
(2) A (3) ; 241 ciple of issue estoppel is a different principle, viz. where an issue of fact has been tried by a competent court on a former occasion and a finding has been reached in favour of an accused, such a finding would constitute an estoppel or res judicata against the prosecution not as a bar to the trial and conviction of the accused for a different or distinct offence but as precluding the reception of evidence to disturb that finding of fact when the accuses is tried subsequently even for a different offence which might be permitted by the terms of section 403(2), Cr.
P.C. Speaking on the principle of estoppel Dixon, J. said in King vs Wilkes(1) "Whilst there is not a great deal of authority upon the subject, it appears to me that there is nothing wrong in the view that there is an issue estoppel, it it appears by record of itself of as explained by proper evidence, that the same point was determined in favour of a prisoner in a previous criminal trial which is brought in view on a second criminal trial of the same.
prisoner.
that seems to be implied in the language used by Wright, J. in R. vs Ollis which in effect I have adopted in the foregoing statement.
There must be a prior proceeding determined against the Crown necessarily involving an issue which again arises in a subsequent proceeding by the Crown against the same prisoner.
The allegation of the Crown in the subsequent proceeding must itself be inconsistent with the acquittal of the prisoner in the previous proceeding.
But if such a condition of affairs arises I see no reason why the ordinary rules of issue estoppel should not apply.
Such rules are not to be confused with those of res judicata, which in criminal proceedings are expressed in the pleas of autre fois acquit and autre fois convict.
They are pleas which are concerned with.
the judicial determination of an alleged criminal liability and in the case of conviction with the substitution of a new liability.
Issue estoppel is concerned.
with the judicial establishment of a proposition of law or fact between parties.
It depends upon.
well known doctrines which control the reltigation of issues which are settled by prior litigation.
" In a subsequent case Marz vs The Queen(2), Dixon, C.J. stated as follows : "The law which gives effect to issue estoppels is not concerned with the correctness or incorrectness of the finding Which amounts to an estoppel still less with the processes of reasoning by which the finding was reached in fact. .
It is enough that an issue or issues (1) ; a, pp. 518 519.
(2) ; 242 have been directly raised and found.
Once that is I done, then, so long as the finding stands, if there by any subsequent litigation between the same parties, no allegations legally, inconsistent with the finding may be made by one of them against the other, Res judicate pro veritate accipitur.
And . this applies in pleas of the Crown.
" Again in Brown vs Robinson(1) Herron and Maguire, JJ. said "Before issue estoppel can succeed in a case such as this there must be prior proceeding determined against the Crown necessarily involving an issue which again arises in a subsequent proceeding by the Crown against the same prisoner .
It depends upon an issue or issues having been distinctly raised and found in the former proceeding".
The principle of issue estoppel has received the approval of this Court in Pritam Singh vs State of Punjab (2) and Manipur Administration vs Thokchom Bira Singh (3) and several later decisions.
But the principle cannot be invoked in the present case because the parties are different and the decision upon any issue as between State and Nand Lal Sehgal in the same litigation cannot operate as binding upon the State with regard to present ' appellant.
For issue estoppel to arise there must have been distinctly raised and inevitably decided the same issue in the earlier proceedings between the same parties '. 'In our opinion, mr. Mitter is unable to make good his argument on this aspect of the case.
It was then contended on behalf of the appellant that there was no corroboration of the approver 's evidence so far as he was concerned.
An accomplice is undoubtedly a competent witness under the Indian Evidence, Act.
There can be, however, no doubt that the very fact that he has participated in the commission of the offence introduces a serious taint in his evidence and Courts are naturally reluctant to act on such tainted evidence unless it is corroborated in material particulars by other independent, evidence.
It would not, however, be right to expect that such independent corroboration should cover the whole of the prosecution case or even all the material particulars of the prosecution case.
If such a view is adopted it will render the evidence of the accomplice wholy superfluous.
On the other hand, it will not be safe to act upon such evidence merely because it is corroborated in minor particulars or incidental, details because, in such, a case, corroboration does not afford the necessary assurance that the (1) [1960] S.R.(N.S.W.)297,301.
(2) A.I.R. 1956 S.C. 415.
(3) [1964]7 S.C.R. 123.
243 main story disclosed by the approver can be, reasonably and safely accepted as true '.
It is well settled that the appreciation of approver 's ',evidence has to satisfy a double test.
His evidence must show that he is reliable witness and, that is a test which is common to all the witnesses.
If this test is satisfied the second test, which still remain to be applied is that the approver 's ' evidence must receive sufficient corroboration.
(See Sarwan Singh vs State, of Punjab) (1).
In the present case the High Court has rightly applied this, principle and reached the conclusion that the approver 's evidence was materially corroborated so far as the appellant was concerned.
In the first place, the approver, said that while going from his house when he fled from Phagwara, he had thrown the remaining pieces of the shirt in a cluster of sarkandas.
As a result of search A.S.I. Pritam Singh recovered torn pieces of cloth Exs.
P.9/ 11 to P. 9/ 3 from a bush about 150 yards, from the Mill.
The testimony of the expert Mr. Longia P.W. 7 shows that Exs.
P. 9/1 to P. 9/3 were parts of the same cloth as pieces Exs.
P. 10/1 to P. 10/3 which were used for Dacking the bomb between the inner and the outer boxes.
If the approver was not a participant to the packing of the hand grenade, he could not possibly be in possession of the pieces.
of cloth Exs.
P. 9/1 to P. 9/3.
In the second place, the evidence of Nazar Singh, P.W. 22 indicates that he made the outer box for Piara Singh and was paid Re. 1/ by him.
Gian Singh, P.W. 23 also said that he had been asked by Piara Singh to make Phaties about 4" in length for the preparation of the box.
Amrik Singh, P.W. 23 has also given corroborative evidence.
Piara Singh had met him at Amritsar on 3rd October 1966 and told him that Piara Singh had despatched the parcel.
The testimony of Sri Niwas, P.W. 27 is crucial in this case.
He has corroborated the statement of the approver.
in important particulars.
The evidence of Sri Niwas was criticised on behalf of the appellantas Sri Niwas made his statement to the police after some delay viz., on the 17th October, 1966.
On this point Sub Inspector Mohinderpal Singh explained that earlier on 9th October, 1966, he tried to contact Sri Niwas, but the latter was not found in his seat in Phagwara Chowk.
He made another effort to trace him on 13th October, 1966, but it was equally fruitless.
It is true that the Sub Inspector could have made more strenuous efforts to trace out Sri Niwas, but he was going to other places also in connection with the investigation.
The High Court has held that merely on account of this delay the statement of Sri Niwas could not be rejected.
On the contrary the High Court has found the evidence of Sri Niwas to be true and reliable.
It is manifest that there is sufficient corroboration of the evidence of the approver so far as the appellant is concerned and the argument of Mr. Mitter must be rejected on this aspect of the case.
(1) ; 244 Lastly, it was contended that the hand grenade could not be arranged in the manner stated by the approver, but that the hand grenade was intact and when the parcel was opened, some one may have caused it to explode.
In this connection Mr. Mitter referred to the evidence of expert Mr. Murti P.W. 6.
According to Mohinder Singh, only one hole was made in the inner box through which the wire fitted in the grenade in place of the safety pin was taken out.
The argument of the appellant was that,two holes should have been made in the inner box, but according to the approver only one hole Was made.
It was also said that according to the report of the expert, bent steel wire was found in the first parcel which was sent to him.
It was argued that the report of the expert was not consistent with the evidence of the approver who said that the safety pin of the wire had been removed.
It was suggested that Mohinder Singh would have probably thrown the safety pin and not kept it in the box.
The High Court has examined in detail the argument of the appellant on this point and reached the conclusion that the statement of the approver with regard to, the packing, of the hand grenade should be accepted as 'true.
The question involved is one of appreciation of evidence and not a question of law.
In any event, we see no sufficient reason for taking a view different from that of the High Court in this matter.
For, these reasons we hold that there is no merit in these appeals which are accordingly dismissed.
Y.P. Appeals dismissed.

dataset_name: IN-Abs

summary:
The appellant and S were, charged for an offence under section 302 I.P.C: and under the Explosive Substances Act.
The prosecution relied upon the evidence of the approver.
The approver 's statement was corroborated, (a) by the recovery of a piece of cloth which was part of the same cloth used in the clime, (b) by the evidence of that the box was made for the appellant, and (c) by the evidence regarding despatch of the parcel by the appellant.
The Sessions Judge convicted the appellant and S, against which both appealed.
The conviction of the appellant was upheld by the High Court, as it considered that the statement of the approver was corroborated by the evidence of other witnesses so far the,appellant was concerned.
But the High Court acquitted S being of the view that there was no independent corroboration of the approver 's evidence which lead to the inference that S was instrumental in the commission of the crime.
In appeal to this Court, the appellant contended that (i) the affect of acquittal of S was to, weaken, if not to destroy, the approver 's evidence so far as it concerned the appellant, relying on the principles of issue estoppel; and (ii) there was no corroboration of the approver 's evidence so far as the appellant was concerned.
Dismissing the appeal, HELD : (i) For the principle of issue estoppel to arise, there must have been distinctly raised and inevitably decided the same issue in the earlier proceedings between the same parties.
But the principle cannot be invoked in the present case because the parties are different and the decision upon any issue as between State and S, in the same litigation cannot operate as binding upon the 'State with regard to the present appellant.
[242 D E] Pritam Singh vs State of Punjab, A.I.R. 1956 S.C. 415.
and Manipur Administration vs Thokchom Bira Singh, ; , followed.
Sambasivam vs Public Prosecutor, Federation of Malaya, , King vs Wilkes, ; at pp.
518 519, Marz vs The Queen, ; , Again in Brown v, Robinson, , 301, applied.
(ii)The application of approver 's evidence has to satisfy a double test.
His evidence must show that he is a reliable witness and that is a test which is common to all the witnesses.
If this test is satisfied the second test which still remains to be applied is that the approver 's evidence must receive sufficient corroboration.
It would not however, be right to expect that such independent corroboration should cover the whole of the prosecution case.
In the present case, the High Court had rightly applied this Principle and reached the conclusion that the approver 's evidence was materially corroborated so far as the appellant was concerned.
[243 A C] 237 Sarwan Singh vs State of Punjab, ; , followed.


judgement:
Appeal No. 873 of 1966.
Appeal by special leave from the judgment and order dated March 26, 1965 of the Calcutta High Court in I.T. Ref.
No. 107 of 1960.
Sukumr Mitra and D. N. Mukherjee, for the appellant.
Niren De, Attorney General, section C. Manchanda and R. N. Sachthey, for the respondent.
It was stipulated internal that the lessee could assign the lease with the consent of the lessor.
He could after the structures on the premises so as, to convert them into a cinema if necessary.
After expending Rs. 35,000/ on some alterations to the premises the assessee felt the necessity of having some more money in order to convert the building into a cinema.
He entered into a lease on February 23, 1946 with three persons, namely, Nani.
Gopal Dutt, Makhan Lal Dutt and Shiv Kumar Khanna.
By this lease, the building which was called 'Khanna Cinema house ' at 157, Upper Circular Road, Calcutta was demised to the lessees for a period of 30 years.
The lessees agreed to pay under the indenture of lease Rs. 55 200/ to the lessor towards the cost of erecting the said cinema.
The rent which was agreed to be paid was Rs. 2,100/ per month.
It was payable with effect from June 1, 1946.
It is necessary to set out the relevant portion of the lease "And whereas the lessor obtained sanction from the Corporation of Calcutta and other necessary authorities and commenced the erection of a Cinema House the estimated total cost of which is about Rs. 1,00,000/(Rupees one lac).
And whereas the lessees agreed to pay to the lessor a sum of Rs. 55,200/ (Rupees Fifty five thousand and two hundred) towards the cost of the erection of the said cinema house according to their suggestion and other charges and expenses 464 incurred therefore by the lessor.
And whereas the construction of the said Cinema House is almost complete and is expected to be completed by the end of March, One Thousand Nine Hundred and Forty six and whereas the lessee have called upon the lessor to grant to them a lease of the said Cinema House which the lessor has agreed to do upon payment by the lessees of the said agreed sum of Rs. 55,2,00/ (Rupees fifty five thousand and two hundred), towards the costs of building the said Cinema House and whereas the lessees have paid to the lessor the said sum of Rs. 55,200 (Rupees Fifty five thousand and two hundred) for which separate receipt has been granted by the lessor." After the Cinema House had been completed the lessees entered into possession and started exhibiting shows there.
For the assessment year 1947 48 the corresponding account ing year being the financial year ending March 31, 1947, the Income tax Officer sought to treat the sum of Rs. 55,200/ received by the assessee as his income.
The contention of the assessee was that the aforesaid amount should be treated as capital receipt.
Alternatively if it was to be treated as salami (premium) and was to be taxed as a revenue receipt it should be distributed evenly over the entire term of the lease i.e. 30 years.
The Income tax Officer did not 'accept either of the contentions of the assessee.
It was held by him that the lease was pot permanent but was temporary and that the salami had been fixed as an advance payment of rent and not as payment for transfer of the lease hold interest.
According to him the system of accountancy for this source of income being on, cash basis the whole of the receipt of salami was liable to be taxed as one year 's income in the year of the receipt.
The assessee appealed to the Appellate Assistant Commissioner who agreed with the Income tax Officer.
In his view the lessees were under no legal obligation to contribute towards the cost of construction of the cinema house and the sum of Rs. 55,200/ constituted payment of advance rent.
The assessee appealed to the Tribunal which held that the receipt of the aforesaid amount was in the nature of advance payment of rent since the assessee was short of funds at the time the lease was entered into and that the lease was for a short term and that the amount in question represented consolidated rent for thirty years paid in advance.
The High Court answered the question which was refer red in the affirmative and against the assessee.
According to the High Court the only object of the payment of the sum of Rs. 55,200 could be to advance the cost of construction or to meet the existing liabi lities of the assessee for completing the cinema house.
It was observed: 465 "Further it should be noted that the period of lease is only for 30 years and the assessee 's investment on the Cinema is about Rs. 60,000/ , Rs. 35,000/ being the costs of construction and Rs. 25,000/ being costs of machinery with a liability to pay Rs. 750/ rent to the owner of the plot.
As a result of this lease he has got a rent of Rs. 2,100/ for a term of 30 years.
Thus there is no question of payment of any salami as no further inducement for grant of the lease was necessary.
It is obvious that if the cost of construction of the Cinema House would have been met in its entirely by the assessee and thereafter if the assessee would have granted the lease to the lessee, the rent would certainly have been much higher.
Thus, the said sum of Rs. 55,200/ in the absence of a different recital can only be deemed to have been paid as an advance rent in respect of the said Cinema House.
" On behalf of the appellant assessee it has been urged that he sum of Rs. 55,200/ was paid to the lessor in lump for completing the cinema house without which the lessee could not have used the building for the purpose of exhibiting cinematograph films.
According to the recitals in the deed which must be given due effect the lessees agreed to give this amount towards the cost ,if erection of the cinema house according to their suggestion and 'or defraying other charges and expenses.
The payment of rent was expressly stipulated at the rate of Rs. 2,100/ per month and there was no indication whatsoever that any different or higher rate of rent was agreed to.
It is further submitted that there was no material or evidence on which it could be found that the cinema would have fetched, any higher rent, the admitted cost of construction being about Rs. 1,00,000/ .
Alternatively the sum of Rs. 55,200/ could be regarded only as payment of salami (premium) and could not be treated as revenue receipt, the payment being of a non recurring nature.
It seems to us that the departmental authorities as well as the High Court were in error in treating the amount of Rs. 55,200/as advance payment of rent.
The lease by which the cinema house was demised did not contain any condition or stipulation from which it could be inferred that the aforesaid amount had been paid by way of advance rent.
The transaction embodied in the indenture of lease was clearly business like.
The lessees wanted the building for running it as a cinema house and the lessor agreed to give it to them but apparently represented that he did not have enough money to complete it in accordance with the suggestions and requirement of the lessees.
The lessees agreed to pay him the aforesaid amount by way of a lump sum without 466 making any provision for its adjustment towards the rent or repayment by the lessor.
The essential question, however, is whether on the terms of the lease and in the absence of any other material or evidence could it be hold that the sum of Rs. 55,200/was paid by way of advance rental ? The view which has been expressed by the Tribunal as also the High Court that the lease was for a comparatively short period of thirty years and that the aforesaid amount had to be spread over that period by way of rent in 'addition to a rental of Rs. 2,100/ per month cannot be sustained as no foundation was laid for it by any cogent evidence The departmental authorities can well be said to have based their decision on mere conjectures as there was nothing whatsoever to substantiate the suggestion that the real rental value of the cinema house was in the region of Rs., 2,250/ per month and not Rs, 2,100/ which was the agreed rent.
It can equally well be said that the payment of the amount in question to the appellant was in the nature of a premium (salami).
In the words of Lord Greene M. R. in Henriksen V. Grafton Hotel Ltd.(") "A payment of this character appears to me to fall into the same class as the payment of a premium of a lease, which is admittedly not deductible.
In the case of such, a premium it is nothing to the point to say that the parties if they had chosen, might have suppressed the premium and made a corresponding increase in the rent.
No doubt they might have.
done so, but they did not do so in fact.
" Fazl Ali J.,(as he then was in Commissioner of Income tax, Bihar & Orissa vs Viswesh war.
Singh(2) referred to the distinction between a single payment made at the time of the settlement of the demised property and recurring payments made during the period of its enjoyment by the lessee .
This distinction, according to the learned Judge, is clearly recognised in section 105 of the Transfer of Property Act which defines both premium and rent.
This is what was observed at page 545 "It is obvious that if the premium represents the whole or part of the price of the land it cannot be income.
As pointed out by Sir George Lowndes in the Commissioner of Income tax, Bengal vs Messrs. Shaw Wallace & Company,: income in the Indian Income tax Act 'connotes a periodical monetary return, coming in 'with some sort of regularity or expected regularity from definite sources.
The premium of salami which is paid once for.
all 'and is not recurring payment, hardly satisfies this test.
I concede that in some cases ' where the rent is ridiculously low and the premium abnormally high, it may be possible to argue that the premium includes advance rent. . (1) 24 T. 453.
(2) 467 It has not beep even remotely suggested in the present case that the rent of Rs. 2100 per month was ridiculously low as compared with the, amount of Rs. 55,200 paid in lump sum.
It is true that the question whether premium is a capital, or a revenue receipt cannot be decided as a pure question of law.
Its decision necessarily depends upon the facts and circumstances of each case.
It would not, however, be wrong to say that prima facie premium or salami is not income and it would be for the income tax authorities to show that facts exist which would make it a revenue receipt.
There is another factor which is of substantial importance in the present case.
According to the terms of the lease the payment of rent was to commence not from the date of the lease which was February 23, 1946, but with effect from June 1, 1946.
It is also not disputed that the lessees entered into possession after the cinema house had been completed which was subsequent to the date of the lease.
these facts coupled with the payment of a lump sum which was of a non recurring nature showed that the amount in question had all the characteristics of a capital payment and was not revenue.
This would be.
in accord with the principles laid down by this Court in Member for the Board of Agricultural Income tax vs Sindhurani Chaudhu.
rani & Others(1) which was a case of settlement of agricultural land but in which the principles governing the payment of premium or salami have been fully discussed.
For the reasons given above we hold that the question which was referred to the High Court ought to have been answered in the negative and in favour of the assessee.
The appeal is accordingly allowed.
with costs in this Court and the High Court and the answer returned by the High Court is hereby discharged.
G.C. Appeal allowed.

summary:
On July 19, 1945 the assessee took an lease certain premises in Calcutta on a monthly rental.
He made some alterations in the premises so as to convert it into a cinema house but found himself short of money.
As permitted by the terms of his lease he leased the premises on February 23, 1946 to certain parties.
According to the terms of the indenture the lessees agreed to pay him Rs. 55,2GO towards construction of the cinema house which would on completion be let to them at a monthly rental of Rs. 2,100 payable with effect from June 1, 1946.
The Income tax authorities treated the sum of Rs. 55,200 thus received as taxable ;and the High Court on reference held the same.
in appeal by the assessee this Court had to consider whether the receipt was taxable.
HELD : (i) The departmental authorities as well as the High Court were in error in treating the amount of Rs. 55,200 as advance payment of rent.
The lease by which the cinema house was demised did not contain any condition or stipulation from which it could be inferred that the aforesaid amount had been paid by way of advance rent.
The transaction embodied in the indenture of lease was clearly business like.
The lessees wanted the building for running it as a cinema house and the lessor agreed to give it to them but apparently represented that he did not have enough money to complete it in accordance with the suggestions and requirement of the lessees.
The lessees agreed to pay him the aforesaid amount by way of a lump sum without making any provision for its adjustment towards the rent or repayment by the lessor.
On the terms of the lease and in the absence of any other material or evidence it could not be held that the sum of Rs. 55,200 was paid by way of advance rental.[465 G 466 B] (ii) The question whether premium is a capital or a revenue receipt cannot be decided as a pure question of law.
Its decision necessarily depends upon the facts and circumstances of each case.
It would not however be wrong to say that prima facie premium or salami is not income and it would be for the income tax authorities to show that facts exist which would make it a revenue receipt.
[467 B] According to the terms of the lease, in the present case ' the payment of rent was to commence not from the date of the lease which was February 23, 1946 but with effect from June 1, 1946.
The lessees entered into possession after the cinema house had been completed which was subsequent to the date of the lease.
These facts coupled with the payment of a lump sum which was of a non recurring nature showed that the amount in question had all the characteristics of a capital payment and was not revenue.
[467 C D] Henriksen vs Grafton Hotel Ltd., , Commissioner of Income tax, Bihar & Orissa vs Visweshwar, [1939] 7 I.T.R. 536 and 463 Member for the Board of Agricultural Income tax vs Sindhurani Chaudhurani & Ors., , applied.