Fugitive Offenders Act

The Fugitive Offenders Act, 1881

1953 case:

A husband and wife, were apprehended and produced before the Chief Presidency Magistrate, Egmore, Madras, pursuant to warrants of arrest issued under the provisions of the Fugitive Offenders Act, 1881 at the request of Singapore Govt.

The husband was a barrister-at-law, and was practising as an advocate and solicitor in the Colony of Singapore. His was an advocate of the Madras High Court and was until recently a member of the Legislative Council of the Colony of Singapore.

Both of them came to India some time after July, 1952. On the 22nd August, 1952, the Government of Madras forwarded to the Chief Presidency Magistrate, Madras, copies of communications that passed between the Government of India and the Colonial Secretary of Singapore requesting the assistance of the Government' of India to arrest and return to the Colony of Singapore.

The husband was charged on several counts of having committed criminal breach of trust and his wife was charged with the abetment of these offences.

They pleaded that being citizens of India, they could not be surrendered as the warrants related to matters of a civil nature and had been given the colour of criminal offences merely for the purpose of harassing them out of political animosity by the Singapore Govt.

And further urged that the provisions of the Fugitive Offenders Act 1881 under which action was sought to be taken against them were repugnant to the Constitution of India and were void and unenforceable.

The Madras High Court held that section 14 of the Fugitive Offenders Act was inconsistent 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.

The State of Madras preferred SLP before the Supreme Court. 

The State of Madras conceded that the Fugitive Offenders Act, 1881, was not adapted by any specific order of the President, and that the Parliament in India had not enacted any Legislation on its lines. However, contended that the omission to adapt the impugned Act in no way affected the question whether it was in force as the law in the territory of India after the commencement of the Constitution.

It was also said that the adaptations made in the Indian Extradition Act, 1903, by implication kept alive the Fugitive Offenders Act, 1881.

The Fugitive Offenders Act, 188 1, as enacted by the British Parliament is sub-divided into four parts and is comprised of 41 sections.

Part I of the Act concerns itself with offences mentioned in section 9. Section 5 of this part provides that a fugitive when apprehended shall be brought before a Magistrate who shall hear the case in the same manner and have the same jurisdiction.

Section 12 which is the first section in Part II of the Act is shall apply only to those groups of British Possessions to which, by reason of their contiguity or otherwise, it may seem expedient to Her Majesty to apply the same.

Section 14 provides that the magistrate before whom a person so apprehended is brought, and is satisfied on oath that the prisoner to be returned to the British Possession in which the warrant was issued, and for that purpose to be delivered into the custody of the person to whom the warrant is addressed.

A comparison between the provisions of Part I and Part II of the Act makes it clear that with regard to offences relating to which Part I has application a fugitive when apprehended could not be committed to prison.

While in regard to a fugitive governed by Part II of the Act it was not necessary to arrive at such a finding before surrendering him. 

There is thus a substantial and material difference in the procedure of surrendering fugitive offenders prescribed by the two parts of the Act.

The scheme of the Fugitive Offenders Act is that it classifies fugitive offenders in different categories and then prescribes a procedure for dealing with each class. 

Regarding persons committing offences in the United Kingdom and British Dominions and foreign countries in which the Crown exercises foreign jurisdiction, the procedure prescribed by Part I of the Act has to be followed before surrendering them and unless a prima facie case is established against them they cannot be extradited.

Extradition of offenders between the United Kingdom and the Native States in India is governed by the Indian Extradition Act. 

Extraditions inter se between British possessions, however, were dealt with differently by the Act. 

An Order in Council dated the 2nd January, 1918, .grouped together the following British Possessions and Protected States with British India for the purposes of Part II of the Act : Ceylon, Hongkong, the Straits Settlements, the Federated Malay States, Johore, Kedah and Perlis, Kelantan, Trengannu, Brunei, North Borneo and Sarawak. 

By an order of Her Majesty Queen Victoria in Council bearing date the 12th day of December, 1885, it was ordered that Part 11 of the Fugitive Offenders Act, 1881, should apply to the group of British Possessions therein.

 The Indian Extradition Act, 1903, 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. 

Those of the countries which still form part of British Possessions and which along with British India were put into a group may legitimately decline to reciprocate with India in the matter of surrender of fugitive offenders on the ground that notwithstanding article 372 of our Constitution India was no longer a British Possession and therefore the Fuogitive Offenders Act, 1881, did not apply to India and they were not bound in the absence of a new treaty to surrender their nationals who may have committed extraditable offences in the territories of India. 

The appeal filed by the State of Madras therefore fails and is dismissed.

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