[DIVISIONAL COURT]

REGINA v. GOVERNOR OF BRIXTON PRISON.

Ex parte NARANJAN SINGH.

Fugitive Offender - Court's jurisdiction to discharge - Delay - Charges of cheating - Arrest of offender ten years after offences committed - Offender living openly in England - Home and new life made in England - Whether "unjust and oppressive" to order return -

Or otherwise" - Whether power to discharge limited to cases where offence trivial or application for return made in bad faith - Fugitive Offenders Act, 1881 (44 & 45 Vict. c. 69), s. 10.

On February 9, 1961, the chief metropolitan magistrate made an order under section 5 of the Fugitive Offenders Act, 1881, committing the applicant to Brixton Prison to await return to India on five charges of cheating under article 420 of the Indian Penal Code. The amount involved in the charges was 1,425 rupees, about £112. The alleged offences were committed in India about October, 1951. In April, 1952, the applicant came to this country where he obtained employment and lived openly under his own name. In 1956 he was joined by his wife, who had been living openly in India, and his child, and in the same year he obtained British nationality, surrendering his Indian passport. Meanwhile, depositions were taken in India, but they were not completed until the end of 1956 nor authenticated until 1958. On December 4, 1958, a warrant was issued which was authenticated in India on February 5, 1959, and indorsed in London by the chief metropolitan magistrate on March 3, 1960. The applicant was arrested in London on February 1, 1961. Despite the delays which had occurred in India, there was no suggestion that the Government of India was not sincere in its intention to prosecute.

On an application for a writ of habeas corpus and under section 10 of the Fugitive Offenders Act, 1881,¹ that the applicant be discharged on the ground that in view, inter alia, of the long delay shown by the Indian authorities, it would be unjust and oppressive to order his return to India, the point was taken that the discretion of the court to make an order in favour of an offender under section 10 of the Act was limited to cases where the offence was trivial or the application was not made "in good faith in the interests of justice or otherwise" not in good faith:-

Held, that, on its true construction, section 10 of the Act of 1881 gave the court a wide discretion to do what in all the circumstances was just, and that, in the circumstances, and since the applicant had made a home and a life for himself in this country, and would by reason of the delay inevitably experience difficulty in defending himself, the delay was of such a nature that it would be unjust and oppressive for him to be returned to India on the charges. The court, therefore, would exercise its discretion under the section and order his discharge.

APPLICATION for a writ of habeas corpus and under section 10 of the Fugitive Offenders Act, 1881.

1 Fugitive Offenders Act, 1881, s. 10: "Where it is made to appear to a superior court that by reason of the trivial nature of the case, or by reason of the application for the return of a fugitive not being made in good faith in the interests of justice or otherwise, it would, having regard to ... all the circumstances of the case, be unjust or oppressive or too severe a punishment to return the fugitive ... such court may discharge the fugitive. ..."

On February 9, 1961, the chief metropolitan magistrate at Bow Street made an order under section 5 of the Fugitive Offenders Act, 1881, committing the applicant, Naranjan Singh, to Brixton Prison to await return to India on five charges of cheating by dishonest inducement of the delivery of property under article 420 of the Indian Penal Code. The amount involved in the charges was 1,425 rupees, about £112. The alleged offences took place in about October, 1951, in the Province of Jullundur, in the Republic of India. In April, 1952, the applicant left India and came to this country where he obtained employment and lived openly under his own name. In 1956 he was joined by his wife and child, and in the same year he applied for, and obtained, British nationality. On February 1, 1961, he was arrested in London and brought before the chief metropolitan magistrate.

The applicant applied to the court, submitting that, in view of the small amount involved in the charges, the distance to the Republic of India and the long delay in ordering his return shown by the Indian authorities, and in all the circumstances of the case, it would be unjust and oppressive and too severe a punishment to order his return, and asking that in the premises, and by virtue of section 10 of the Fugitive Offenders Act, 1881, the court should issue a writ of habeas corpus that he might be brought before the court and discharged. The application was made ex parte on February 24, 1961, when it was adjourned until February 28 for notices to be served. On February 28, on the application of the Government of India, the hearing was adjourned for two months to enable evidence to be obtained from India.

The facts are more fully stated in the judgment of Lord Parker C.J.

Brian Leary for the applicant. In view of the inordinate delay on the part of the Indian authorities this case clearly falls within section 10 of the Fugitive Offenders Act, 1881. That delay was in no way contributed to by the applicant, who has lived openly in this country and surrendered his passport to India House when he took British nationality. The charges are now 10 years old; they are complicated charges relating to the affairs of a company, and if the applicant were returned to India to stand his trial on them he would inevitably experience great difficulty in tracing the documents relating to the company and in finding witnesses, who must by this time be dispersed all over India. It would, indeed, be "unjust or oppressive" within

section 10 to return the applicant after 10 years to stand a trial at which he could not be expected to defend himself adequately.

Mervyn Griffith-Jones for the Governor of Brixton Prison.

T. O. Kellock for the Government of India. It is conceded that the delay in this case is most unfortunate. But the court is asked to accept that, owing to the size of the country and the interplay between the local authority State Government and the Government of India, the preparation of a case such as this presents greater difficulty and necessarily takes a longer time in India than it would do in this country, and that the Indian Government has acted in good faith throughout.

Where the depositions show a prima facie case the court should only refuse to allow a fugitive to be returned if the offence is trivial or the application is not made in good faith. That appears as a matter of construction of section 10 of the Act of 1881. On a logical reading of the section, the words "or otherwise" are merely a qualification of the preceding words "the interests of justice." It is to be observed that there is no comma after the words "the interests of justice" as would be expected if the following words, "or otherwise," are not to be construed ejusdem generis. If the words "or otherwise" have a general meaning, there would be no necessity for the express references in the section to the "trivial nature of the case" and the application "not being made in good faith." There are, therefore, only two matters for this court to consider: first, if the offence is trivial, and, secondly, whether the application is made in good faith in "the interests of justice." If that reading of the section is right, delay on the part of the applying Power is only relevant in deciding whether it has acted in good faith, or, if the case is trivial, whether in "all the circumstances of the case" it would "be unjust or oppressive or too severe a punishment to return the fugitive."

In Rex v. Governor of Brixton Prison, Ex parte Waite² a submission was made that the section should be given a wider construction, but the court left that point open. In In re Henderson³ the court did appear to say that delay is not a reason for refusing to return a fugitive, but it is accepted that the point of construction was conceded. [Reference was also made to Reg. v. Governor of Brixton Prison, Ex parte Campbell.⁴]

2 (1921) The Times, February 22, D.C.

3 [1950] 1 All E.R. 283, C.A.

4 (1956) The Times, July 12, D.C.

In considering whether it would be harsh or oppressive to return a fugitive offender for trial, one consideration is whether it is worth doing so, e.g., whether he would merely receive a nominal sentence or be bound over: see Reg. v. Governor of Brixton Prison, Ex parte Green.⁵ It must be remembered, however, that other charges may in fact be laid against the fugitive at his trial. The purpose of this legislation is to return alleged criminals from one State of the Commonwealth to another, and only in the rare event of lack of good faith on the part of the applying State should his return be refused. Even if section 10 be given a wide construction, mere delay by the applying Power is insufficient ground for refusing to return the offender, because it is a matter which he may raise at his trial. Alternatively, if this court will take delay into consideration, it will only exercise its discretion to release the offender in rare and exceptional cases: see Rex v. Governor of Brixton Prison, Ex parte McCheyne,⁶ in particular per Lord Goddard C.J.⁷ and Croom-Johnson J.,⁸ and this is not such a case.

Mervyn Griffith-Jones was asked to assist the court on the point of construction. The words "or otherwise" give an open discretion to the court; unless so interpreted, the words are purposeless. The effect of section 10 is that the court may exercise its discretion to release the offender when to do otherwise would be "unjust" - a limited interpretation would mean that the court might release an offender when to do otherwise would be unjust only on the ground of the triviality of the offence or of bad faith on the part of the applying Power, but that, in all other cases however unjust, it had no power to act. That would be a strange conclusion for the court to come to, since its only task is to see that no injustice is done. In his judgment in In re Henderson⁹ Tucker L.J.¹⁰ clearly had the wider construction in mind, even though the matter had not been argued.

Leary was not called on to reply.

LORD PARKER C.J. In these proceedings Mr. Leary moves on behalf of the applicant, Naranjan Singh, now detained in Her Majesty's Prison at Brixton, for an order of habeas corpus or, alternatively, for an order under section 10 of the Fugitive Offenders Act, 1881. The applicant was committed to Brixton

5 (1959) The Times, December 16, D.C.

6 [1951] 1 T.L.R. 1155, D.C.

7 Ibid. 1158.

8 Ibid. 1159.

9 [1950] 1 All E.R. 283.

10 Ibid. 286.

Prison by the chief magistrate on February 9, 1961, he having been satisfied on a warrant and depositions duly authenticated which had been sent over from India that a prima facie case had been made out against the applicant in respect of offences contrary to article 420 of the Indian Penal Code.

The alleged offences in this case were committed about October, 1951, and their nature was that the applicant was the managing director of a company, Public Pictures Ltd., that he got a number of people, up to 28, to deposit sums in rupees as a condition of being taken into employment, and that he in fact used that money without their authority in the purchase of shares in their names in the company, and thereafter dismissed them without paying them any salary. The offences in question are five in number, involving the equivalent in rupees of about £112.

In April, 1952, he came to this country. He says that he knew of no complaint having been made against him, but it is only right to say that it does appear from the depositions that a number of people alleged that they complained to him, and, indeed, some 30 of them did complain also to the Registrar of Joint Stock Companies, sending him a written petition on November 12, 1951. Having come to this country, the applicant obtained employment at Ealing, where he worked for a company for 21/2 years, and in March, 1956, he was joined by his wife, whom he had left in India, accompanied by one child. After that they moved to West Bromwich, purchased a house on mortgage and he worked until September, 1960, in a rolled steel factory; the employers in that factory give the applicant a glowing reference, saying that they considered him to be one of the best coloured workers ever to be employed by the firm, and that they were sorry when he left of his own accord. In 1960 he left that job and came south to Southall, in Middlesex, where he obtained work with the British Overseas Airways Corporation. Meanwhile, in 1956, he had surrendered his Indian passport and had applied for and obtained British nationality.

This is the case of a man who, for whatever motive he left India in 1952, has a home and new life which he has made for himself in this country. He has a wife and now three children with him. That is the position from his point of view.

From the point of view of the Indian authorities, it appears that after the Registrar of Joint Stock Companies had drawn the attention of the police to the petition which he had received on November 12, 1951, certain steps were taken. It is only right to

say that, in my judgment, everything that was done, making all allowances for the difficulties involved in India, was dilatory in the extreme. At any rate, the applicant had left the country before anything was done, because the first record is a report from the Superintendent of Police on October 4, 1952. Thereafter, there was a long period of delay until the depositions were taken, apparently in the early part of 1956. It is said that there was difficulty in tracing the witnesses and their addresses, but it is difficult to believe that there was any really serious difficulty when, as I have said, there had been a written petition from these complainants to the Registrar of Joint Stock Companies. However, the depositions having been taken, they were not authenticated until 1958, and it was not until December 4 that a warrant was issued. On February 5, 1959, the signature on the warrant was authenticated, and then there was a delay of yet another year before the application was in fact made to the chief magistrate in London.

Finally, to complete the dates, there was then an adjournment for further authentication until the chief magistrate indorsed the warrant on March 3, 1960, and thereafter almost another year's delay before the applicant was arrested on February 1, 1961.

The Government of India have supplied the court with affidavits seeking to explain the delay, and I should like to say at once that I entirely accept that the work involved inevitably caused some delay, and that the Indian authorities are entirely sincere in the matter, and that they intend to prosecute. At the same time I feel that this was a very simple case and, making allowances for all the difficulties involved, it is almost inconceivable that if due diligence had been exercised the matter could not have been dealt with at a very much earlier stage. But, be that as it may, one thing is clear, and that is that the applicant, apart from the fact that he may have left India originally fearing some action, has done nothing but live perfectly openly under his own name in the circumstances which I have indicated. He is quite well known to the police under his proper name. His wife was living openly in India under her proper name before she came to this country in 1956. She was never questioned. She was never asked for photographs, and again, she has done nothing to conceal the whereabouts of her husband.

Pausing there, I feel that, if the discretion of this court is an unlimited discretion to do what in all the circumstances is just, it would in the particular circumstances of this case be unjust

and oppressive for this man at this very late date, having made his home here and having started a new life here, to be returned for trial in India on these charges. Having regard to the delay, one has only to envisage the difficulties he would be in in defending himself. While the courts there would no doubt take due account of the difficulties facing the applicant, it seems to me that the delay is of such a nature that this court can properly say that it would be unjust and oppressive for him to be forced to return.

However, Mr. Kellock, for the Government of India, has taken a point which has been, if I may put it, in the offing ever since 1881, but has never as yet been effectively taken, namely, that the powers of this court under section 10 are, on a true construction, very limited. The section reads thus: "Where it is made to appear to a superior court that by reason of the trivial nature of the case, or by reason of the application for the return of a fugitive not being made in good faith in the interests of justice or otherwise, it would, having regard to the distance, to the facilities for communication, and to all the circumstances of the case, be unjust or oppressive or too severe a punishment to return the fugitive either at all or until the expiration of a certain period, such court" may exercise its discretion in a certain way.

The rival interpretations of this section concern the meaning in the context of the words "or otherwise." The limited construction, and the one for which Mr. Kellock contends, is that the words "or otherwise" are merely descriptive of the application which is not made in good faith. In other words, he would read it as "Where it is made to appear that by reason of the application for the return of a fugitive not being made in good faith either because it is not being made in the interests of justice or otherwise not in good faith," and he points out that in so far as one is entitled to look at commas in an Act of Parliament, there is no comma, as one would otherwise expect, after the words "interests of justice." That is the limited construction. The wider construction is that one should read it as if there was a comma after the words "interests of justice," and that it would then mean that the court's discretion should be exercised in any other case where it would, having regard to the distance, etc., be unjust and oppressive.

As I have said, this point has been in the offing all these years, and there is no decision on it. What has happened, quite shortly,

in the past is that in In re Waite,¹ which is only reported in "The Times" newspaper, the Attorney-General had made a submission favouring what I may call the wide construction. The court made no decision upon it. In a case which followed, Henderson v. The Secretary of State for Home Affairs,² the point was quite plainly before the court, but the intervening Government, which was again the Government of India, conceded for the purposes of that case that the wider construction was right, and the court proceeded on that wider construction, expressly saying that they were making no decision on the point of construction. Since then there have been several cases before this court; in particular, we were told that in Reg. v. Governor of Brixton Prison, Ex parte Campbell,³ which again is only reported in the "The Times" newspaper, an order was made under section 10, and the court again appear to have come to the conclusion, without argument, that the wide construction was correct. I have not seen "The Times" newspaper report myself, but it is only right to say that it is not clear whether it was the triviality of the alleged offence which determined the decision or merely the matter of delay. At any rate, the court assumed that the wide construction was correct. The same was true in Reg. v. Governor of Brixton Prison, Ex parte McCheyne,⁴ in which the court went so far as to assume⁵ that the wide construction had been decided in Henderson's case⁶ to be correct. In fact, however, the court in Henderson's case⁶ did expressly reserve the point.

The position, therefore, is that in every case which has so far come before this court, the wide construction has either been conceded by the intervening Government or has been accepted without argument by the court as the proper construction. I am quite satisfied that the wider construction is correct. In the first place - and this is approaching it on a broad basis - one would expect that the court would have a general discretion in all the circumstances of the case to do what is just. If the limited construction is correct, however, this court could only order the release of an applicant under the section on the ground of the triviality of the nature of the offence, or on the basis that the reason for the application for the return of the offender was made in bad faith. It seems to me extraordinary that the powers of this court should be so limited. At any rate it is a consideration to bear in mind if there is any ambiguity of construction.

1 (1921) The Times, February 22.

2 [1950] 1 All E.R. 283.

3 (1956) The Times, July 12.

4 [1951] 1 T.L.R. 1155.

5 Ibid. 1158.

6 [1950] 1 All E.R. 283.

Looking at it as a narrow point of construction, there are two matters which influence me. In the first instance, if the discretion can only be exercised in what I may call the trivial case or a case of bad faith, the words "having regard to the distance, to the facilities for communication, and to all the circumstances of the case," would seem to be quite inapt and meaningless. If the court is ordering release on the ground of bad faith, what do the other circumstances matter? What do the distances matter? What do the facilities for communication matter? And similarly, if it is the release of an applicant because of the trivial nature of the offence. Finally, and again as a point of construction, if the limited construction is right, what is the need for the words "in the interests of justice or otherwise" as qualifying good faith? On the limited construction "or otherwise" is merely something being done not in good faith yet in the interests of justice. Again, and it is really the same point, one asks oneself: can one think of a case in which an application is not being made in good faith which is not also being made otherwise than in the interests of justice? It seems to me that as a matter of construction the position is plain, and that even if there can be said to be an ambiguity, the obvious purpose of this section would dictate that a wide construction should be given to it. Accordingly, holding as I do that under the section there is a wide discretion in the court, I would, in the circumstances of the present case, come to the conclusion that the applicant ought to be discharged absolutely.

SALMON J. I agree.

EDMUND DAVIES J. I also agree.

Solicitors: Victor J. Lissack; Director of Public Prosecutions; T. L. Wilson & Co.

J. F. L.