@JUDGMENTTAG-ORDER
Mulla, J.@mdashThis is an application u/s 491, Criminal P.C., by one Israr Husain who has been arrested by the District Magistrate of Basti under
a warrant issued by the Political Agent of Bhopal in accordance with Section 7, Extradition Act, (Act No. 15 of 1903). The applicant was until
11th May 1938 in the service of the Bhopal State as a Nazir and it appears that the State has preferred a charge against him u/s 409, I.P.C., which
id the law of that State also. An offence u/s 409, I.P.C., is an extraditable offence within the meaning of Section 7, Extradition Act, inasmuch it is
one of the offences mentioned in Schedule 1 to the Act. It is not alleged that the applicant is not a person against whom a warrant can be issued u/s
7, Extradition Act. Nor is there any allegation that there is any formal defect in the warrant itself. The whole basis of the present application is the
allegation that the Political Agent before issuing the warrant in question did not observe the procedure laid down in the rules framed by the
Governor-General in Council u/s 22, Extradition Act. It is contended that the failure to follow that procedure which was mandatory renders the
warrant illegal and invalid and hence this Court can in the exercise of its powers u/s 491, Criminal P.C., hold that the applicant is being detained in
unlawful custody and can set him at liberty. I have carefully considered this contention but I find no force in it. It is true that there is no material
before this Court to show that the Political Agent followed the necessary procedure before issuing the warrant in question but that does not by any
means lead to the conclusion that the procedure was not followed at all. It is quite impossible for this Court to hold merely on 4he basis of the
applicant''s allegation that the procedure required under the rules was not followed by the Political Agent before issuing the warrant in question.
Again, I am strongly of the opinion that the powers of this Court, u/s 491, Criminal P.C., are limited and they do not authorize this Court to enter
as it were upon an enquiry into the conduct of the Political Agent. What the applicant wants this Court to do is to investigate into the proceedings
of the Political Agent, but in my opinion this Court has no power to make any such investigation u/s 491, Criminal P.C., All that this Court is
concerned with while exercising its power u/s 491, Criminal P.C., is to see that the authority under which a person is being detained is on the face
of it legal and valid. If there are any formal defects in the warrant under which the applicant is arrested this Court can certainly take notice of them
and can upon that basis hold that the warrant is on the face of it invalid. It would necessarily follow in that event that the detention of the applicant
was unlawful, but in my view this is the limit beyond which this Court cannot go in the exercise of its power u/s 491, Criminal P.C. I find that the
view which I have taken is supported by several decisions of other Courts, for example, AIR 1931 394 (Oudh) , Jamna v. Emperor A.I.R.(1926)
Sind 126 and Giyan Chand v. Emperor (1909) 3 P.R. 1909 Cr. The learned Counsel for the applicant has relied upon the decision of a Bench of
this Court in Sandal Singh Vs. Dist. Magistrate and Superintendent . In that oase ill was held that
the power of the High Court however to interfere u/s 491, Criminal P.C., remains untouched by the Extradition Act, and the High Court is entitled
to enquire into the question whether a person arrested under an extradition warrant was illegally or improperly detained in public or private
custody, and if the High Court is satisfied that he was so detained, to order that he be set at liberty.
2. A close examination of the decision will show that the point which arose for consideration in that case was that one of the three conditions
precedent for the issue of a legal warrant u/s 7, Extradition Act, had not been fulfilled and this Court decided that it had the power to hold that in
the absence of that condition precedent the Political Agent had no authority to issue a warrant u/s 7, Extradition Act. I do not find any conflict at all
between that decision and the view which I have taken in the present case. There was no question raised in that case that the Political Agent had
not followed the rules and in consequence thereof the warrant issued by him was invalid. It does not afford any authority for the proposition that
this Court can enter upon an enquiry into the conduct of the Political Agent before issuing a warrant of arrest u/s 7, Extradition Act. The result
therefore is that I see no reason to interfere and dismiss this application. The stay order is discharged and the District Magistrate of Basti can now
proceed to execute the warrant in accordance with the law.