Extradition Treaty Not Legally Binding; Petitioner Released Unjust Arrest

The court held that the extradition treaty between the British Government and Dholpur State, despite being acted upon, was not incorporated into law through legislative enactment. Therefore, the treaty could not be considered part of Municipal law, rendering the arrest and detention of the petitioner unjustified. Even if the treaty were valid, it only allowed for the surrender of non-Dholpur State subjects, not the petitioner. The court ordered the release of the petitioner, emphasizing the necessity for adherence to legal procedures and parliamentary sanction for treaties affecting private rights.

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Issues:
1. Validity of extradition under a treaty without incorporation into law.
2. Whether a treaty can be considered as having the force of law.
3. Legality of arrest and detention under an extradition treaty.
4. Requirement of parliamentary sanction for treaties interfering with private rights.

Detailed Analysis:
1. The case involves a petition filed under Section 491, Criminal Procedure Code, challenging the arrest of an individual based on an extradition request. The petitioner argues that there is no specific law in the Dholpur State concerning the extradition of fugitive criminals, questioning the authority of the District Magistrate to order the arrest and surrender.

2. The Government Advocate contends that despite the absence of a specific law, a treaty between the British Government and the Dholpur State should be considered as having the force of law. The central issue is whether a treaty can be equated to law, especially in light of fundamental rights under the Indian Constitution.

3. The judgment delves into the nature of treaties, highlighting that treaties are binding upon the subjects without express parliamentary sanction in certain cases. However, in matters affecting private rights, parliamentary consent or subsequent ratification may be necessary for enforceability by officers of the Crown and the nation.

4. Reference is made to a similar case involving the validity of an extradition treaty between two states that was not enacted into law. The judgment emphasizes that the mere execution of a treaty for extradition does not automatically translate into a law unless expressly made so by the legislature. The case law cited underscores the importance of legislative enactment to give treaty provisions the form of law.

5. The court concludes that the extradition treaty between the British Government and the Dholpur State, despite being acted upon, was not incorporated into law through legislative enactment. As a result, the treaty cannot be deemed as part of the Municipal law, and the practice of surrendering fugitive criminals cannot be continued under the Indian Constitution.

6. It is further argued that even if the extradition treaty were considered valid, the detention of the petitioner would still be unjustified as the treaty only allowed for the surrender of non-Dholpur State subjects, not Dholpur State subjects like the petitioner. The court ultimately orders the release of the petitioner, emphasizing that his detention was not in accordance with the procedure established by law.

7. In a concurring opinion, another judge agrees with the decision to set the petitioner free, reinforcing the conclusion that the detention was not lawful. The judgment highlights the importance of adherence to legal procedures and the requirement for treaties interfering with private rights to have parliamentary sanction for enforceability.

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