JUDGMENT Sulaiman, C.J.
1. This is an application from an order of the District Magistrate, Dehradun, directing the arrest of the applicant by the Superintendent of Police and an order of the Sub-Divisional Magistrate requiring securities from him and ultimately releasing him on bail. The proceeding arose out of the is sue of a warrant by the Political Agent of the Punjab States under the Extradition Act (Act 15 of 1903). The warrant was issued on 8th May 1933 and it stated that an offence under Section 409/477-A, Penal Code, was committed or was supposed to have been committed within the limits of the Sirmoor State by the applicant, Sandal Singh. It was addressed to the District Magistrate of Dehradun, who was directed to arrest him and deliver him to the Sirmoor State authorities. On receipt of this warrant the District Magistrate forwarded it to the Superintendent of Police, presumably for taking necessary action. But the applicant was not arrested till 27th June 1933 when, on furnishing security, he was released on bail the next day. In the meantime he had made an application to the High Court in revision praying that all the proceedings be quashed. A learned Judge of this Court ordered notices to issue and also directed that the extradition proceedings be stayed. When the case came up before another Judge of this Court he referred it to a Bench inasmuch as some important questions of law arose in it.
2. The first question is whether the High Court has any jurisdiction on the revisional side to interfere with the execution of the warrant by the District Magistrate. Under Section 435 Criminal P.C., the High Court can call for and examine the record of any proceeding before any inferior criminal Court situate within the limits of its jurisdiction. And thenunder Section 439, when the record of any such proceeding has been called for by the High Court or has been reported for orders or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any powers conferred on a Court of appeal or certain other specified powers. It would therefore be clear that the High Court would not have jurisdiction to interfere with the order of a District Magistrate if it was not an order made in any proceeding before an inferior criminal Court. The High Court would have no power to interfere with orders passed by a District Magistrate in his executive capacity. The provisions of Section 7, Extradition Act, show that the warrant is to be issued to the District Magistrate of the district in which the accused is believed to be and the District Magistrate is bound to act in pursuance of such warrant and may give directions accordingly. He is required to get the accused arrested and take down his statement and if he thinks j fit he may release the accused on bail under Section 8-A and report the case to the Local Government. There does not appear to be any provision in the Extradition Act which would authorise the District Magistrate himself to enquire into the legality, much less the propriety, of the warrant and then to refuse to execute it on the ground that in his opinion the warrant had been wrongly issued.
3. Section 7(2) also directs that the warrant, shall be executed in the manner provided by the law for the time being in force with reference to the execution of warrants. Similarly, Sub-section (3) makes the provisions of the Code of Criminal Procedure' applicable to proclamations and attachments in the case of an accused who is absconding. Obviously therefore the provisions of Ch. 6, Criminal P.C., relating to the execution of warrants are applicable to such a case. Now, Section 83 says that when a warrant is to be executed outside the local limits of the jurisdiction of the Court issuing the same, such Court may,, instead of directing such a warrant to a. police officer forward the same by post or otherwise to any Magistrate or District Superintendent of Police or the Commissioner of Police in a Presidency Town, within the local limits of whose jurisdiction it is to be executed. It is clear that the District Superintendent of Police has just as much authority as the District Magistrate to cause such a warrant to be executed. It cannot for a moment be contended that the act of the police officer ordering the execution of such a warrant would be either a judicial act or a proceeding in an inferior criminal Court. It would therefore follow that when a Magistrate does the same thing, namely, orders the execution of the warrant it cannot be said that he is acting in his judicial capacity or that he is for the time being a Court of inferior criminal jurisdiction. It is quite clear that a Magistrate's order that a warrant be executed is a mere executive act which he is bound to perform as required by Section 7, Extradition Act, the only discretion open to him is not to deliver over the accused to the State authorities, but to report the case to the Local Government if, after taking down his statement he is satisfied that there is sufficient ground for not banding over the accused to the State authorities. The endorsement of the District Magistrate on the warrant forwarding it to the Superintendent of Police or the arrest made under the directions of the Superintendent of Police would therefore not be any proceeding of an inferior criminal Court and would merely be an executive act, and we would therefore not have jurisdiction to interfere with the proceeding on the revisional side It also seems that if the Superintendent of Police in the case of a bailable warrant, or a Magistrate, when reporting the case to the Local Government allows the accused to be released on bail, he is not even then acting judicially.
4. In the case of Gullu Sahu v. Emperor A.I.R. 1915 Cal. 426, Jenkins, C.J., and Teunon, J. after examining the provisions of Section 7, Extradition Act, came to the conclusion that the District Magistrate's sole function is to execute the warrant, and in so doing he performs in accordance with his legal duty, an executive act which the High Court has no power to interfere within the exercise of its revisional powers. This view was however dissented from by a Bench of the Bombay High Court in the case of Miss Mabel Ferris v. Emperor A.I.R. 1929 Bom. 81 where the learned Judges came to the conclusion that the intention of the legislature in referring the extradition warrant to the District Magistrate for orders is that the Magistrate should judicially consider the matter and decide whether the warrant can be executed according to law. The Bench accordingly came to the conclusion that if the warrant was without jurisdiction or there was some other illegality to be found on the face of the warrant, the Magistrate, in the exercise of his judicial powers, would not be justified in issuing an order for its execution and that any order judicially made in this way by the Magistrate would be subject to the revisional powers of the High Court. The learned Judges however based their decision in that case also on the provisions of Section 491, Criminal P.C. In our opinion, the view taken by the Calcutta High Court in the case quoted above is, for the reasons stated by us, sound There is nothing to indicate in the Act or the provisions of the Code of Criminal Procedure relating to the execution of warrants that the proceeding can be regarded as a judicial proceeding or a proceeding of an inferior criminal Court. The application on the revisional side must therefore fail. We have however no doubt that when an accused person prays for time to allow him an opportunity to move the High Court under Section 491, Criminal P.C., a Magistrate would favourably consider such an application. But Section 491(1), Criminal P.C., empowers the High Court, whenever it thinks fit, to direct first among other things, that a person within the limits of its appellate criminal jurisdiction be brought up before the Court to be dealt with according to law and that a person illegally or improperly detained in public or private custody within such limits be set at liberty. This section is very widely worded and entitles us to enquire into the question whether the applicant was illegally or improperly detained in public or private custody and if we are satisfied that he was so detained, to order that he be set at liberty. The mere fact that after his arrest he was temporarily released on bail pending further enquiry does not oust the jurisdiction of the High Court under this section.
5. All the High Courts seem to be agreed that there is jurisdiction under Section 491 to interfere in case of an arrest under an illegal warrant. In the Calcutta case the learned Judges remarked that the power of the Court to interfere under Section 491 was untouched, for it was a power not created by the Extradition Act or exercisable by way of revision. Similarly in the Bombay case quoted above, it was held by both the Judges that the High Court would also have power on proper proceedings being taken to interfere under Section 491, Criminal P. C. It is therefore necessary to examine the question whether the Political Agent had authority to issue the warrant in this particular case so as to justify the arrest of the applicant. The case against the accused seems to be that he was the manager of certain tea gardens belonging to the State, in the districts of Dehradun and Almora. He was in charge of an office at Dehradun where the income from the estate used to be received and account maintained. It appears that it was the duty of the accused to send copies of the accounts daily and monthly and also to render accounts at the headquarters of the State. But there is no suggestion that he had to maintain accounts at any place within the territorial limits of the State. According to the affidavit filed by the Assistant Secretary to His Highness the Maharaja when the accounts of 1930-32 submitted by the accused were duly audited, some items were found to have been misappropriated and the accounts vim discovered to have been falsified on which some legal steps were taken against him. It is the case of the State that in all about Rs. 17,000 comprising several items were embezzled by the accused and to avoid detection he falsified the accounts. But all that is said is that he misappropriated some of the amounts received by him not only at Dahra Dun, as deposed to by him, but also at Nahan and Paonta in Sirmoor State, and that some of the amounts received by him at other places were misappropriated and that he falsified the accounts that were rendered to the accounts office at Nahan, and further that it was the duty of the applicant Sandal Singh, to render accounts at Nahan. But there is no clear allegation that the accused committed the offence of misappropriation at Nahan or Paonta. All that is said is that he misappropriated some amounts which bad been received by him at these places. Again it is not suggested that he falsified accounts at any place within the limits of the State, but all that is alleged is that he falsified accounts which he rendered to the accounts office at Nahan. Further, any omission to render accounts at Nahan would not be a criminal offence of misappropriation or falsification of accounts. The affidavit filed on behalf on the accused goes to show that it was hi? duty to receive the income at Dehra Den, to credit it in the treasury maintained there, to keep proper accounts of all receipts and disbursements and to remit the balance in hand to the State treasury. Prima facie it would seem that the misappropriation, if any, and the falsification of accounts, if any, must have taken place at Dehra Dun within the 'British territory and not within the limits of State territory.
6. In particular, it is suggested on behalf of the State that the accused received on 15th March 1932 a sum of Rs. 39-7-0 from some banker as price of tea, either supplied or to be supplied, which he kept in his pocket and did not credit to the State account. Obviously if he received such amount as price of the tea sold it was his duty to credit it when he returned to Dehra Dun and to enter it in the accounts kept there. The omission to credit this amount in the Dehra Dun treasury or to make an entry in respect of it in the account books would be an offence committed at Dehra Dun only.
7. In spite of the fact that the State authorities got an opportunity to file an affidavit in reply to the affidavit filed by the applicant, we have no materials before us which would go to suggest even a prima facie case that any alleged offence has been committed within the territorial limits of the Sirmoor State. The Agent-General has declined to supply any information as to the nature of the complaint against the accused because it is not the practice of his office to supply such information. In the absence of anything to show that the offence was committed at any place within the State there can be only one conclusion, that the warrant had not been legally issued. Under Section 7, Extradition Act, there are three conditions precedent for the issue of a legal warrant: (1) the offence must be an extradition offence, that is one of those given in Schedule 1, Extradition Act, (2) the accused must not be a European British subject and (3) the offence must have been committed or must be supposed to have been committed by the accused in the territories of the State. Without all these three conditions being fulfilled the Political Agent would have no authority to issue a warrant for the arrest of any person who has either escaped into or is in British India, and the arrest of such a person in pursuance of such a warrant would be equally illegal.
8. In the absence of any materials to show that the accused is alleged to have committed any offence within the Sirmoor territory and in the face of the affidavit filed by the accused giving a detailed statement of the facts which go to suggest that the offences must have been committed if at all within the British territory, we cannot but hold that the warrant for his arrest is not legal.
9. We accordingly order that the proceedings relating to the arrest of the accused in pursuance of this illegal warrant be quashed, that the bail bond furnished by him be cancelled and that he be released from any obligation to surrender.