Case: Saksena v India. High Court of Rajasthan (India)

Date06 November 1950
CourtHigh Court of Rajasthan (India)
India, High Court of Rajasthan.

(Ranawat J.)

The State.

Extradition — Miscellaneous — Trial of Extradited Person for Non-Extraditable Offences — Right of Asylum.

The Facts.—The accused was arrested in Uttar Pradesh in pursuance of a warrant issued under s. 7 of the Indian Extradition Act in respect of offences under ss. 388 and 420 of the Penal Code alleged to have been committed by him in Rajasthan. He was brought before a special magistrate in Rajasthan to stand his trial under ss. 388 and 420, as well as under s. 161 of the Penal Code. The accused objected to trial under s. 161 as he was extradited from Uttar Pradesh, he contended, only for the trial of offences under ss. 388 and 420. The case came to the Sessions Judge of Jaipur, who referred it to this High Court.

Held: that there was no legal bar to the trial of the accused in the State of Rajasthan for an offence under s. 161 of the Penal Code.

The Court said: “The main question for determination in this case is whether the accused, who is extradited under the provisions of Section 7 of the Indian Extradition Act from the Province of Uttar Pradesh for trial under Sections 388 and 420 [of the] Penal Code, can be tried in Rajasthan for an offence under Section 161, which is an offence not mentioned in the first schedule of the Indian Extradition Act relating to extradition offences.

“In an article published in the American Law Review in 1876, written by Judge Lowell of the United States Court of Boston … it has been said that the rule is that the person whose extradition has been granted cannot be prosecuted and tried except for the crime for which his extradition has been obtained. Reference to this article has also been made in the judgment in United States v. William RauscherUNK ((1886), 119 U.S. 417). Mr. David Dudley Field, in his draft of an outline for an International Code published about the same time, adopts the same principle (para. 327, p. 122). There was a long-standing controversy on this question between Great Britain and the United States of America which was set at rest by the decision in Rauscher's case. The United States insisted that once a person has been fully extradited he became for all purposes subject to the local jurisdiction, but the rule contended for by Great Britain was to the contrary [and] was finally affirmed in United States v. William Rauscher and has since been expressly incorporated in the Extradition Treaty entered into between the two countries in...

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