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PETITIONER: STATE OF ANDHRA PRADESH

       Vs.

RESPONDENT: ABDUL KHADER

DATE OF JUDGMENT: 04/04/1961

BENCH: SARKAR, A.K. BENCH: SARKAR, A.K. SINHA, BHUVNESHWAR P.(CJ) DAS, S.K. GUPTA, K.C. DAS AYYANGAR, N. RAJAGOPALA

CITATION:  1961 AIR 1467            1962 SCR  (1) 737  CITATOR INFO :  R          1971 SC1382  (10)  R          1974 SC  28  (1)  F          1974 SC 645  (8)

ACT: Externment  Order-Indian  citizen going to  Pakistan  for  a short  Period  and coming back with  Pakistan  passport  and Indian   visa,   if  becomes  a   foreigner-Conviction   for overstaying,  if  sustainable ’Foreigners Act, 1946  (13  of 1946),  ss.  3(2)(c), 8, 9-Citizenship Act,  1955  (LVII  of 1955), s. 9-Constitution of India, Art. 5(a).

HEADNOTE: The respondent was born in India in 1924 and had lived there all  along till about the end of 1954.  He had  been  paying rent for his shop in India for ten years upto about 1958 and his family was and had always been in India.  At the end  of 1954  or  the beginning of 1955 lie went  to  Pakistan  from where he returned on January 20, 1955, on a passport granted by  the Pakistan Government which had a visa endorsed on  it by the Indian authorities permitting him to stay in India up to  April,  1955.   The respondent applied  to  the  Central Government for extension of the time allowed by the visa but the  records did not Show What order, if any, had been  made on  it.   As  the  respondent had  stayed  beyond  the  time specified  in the visa, he was on September 3, 1957,  served with an order made by the Government of Andhra Pradesh under s.  3(2)(C)  Of the Foreigners Act, i946  requiring  him  to leave  India.   The  order  described  him  as  a  Pakisthan National. on his failure to comply with this order 93 738 he  was prosecuted under S. 14 of the Foreigners  Act.   His defence  was  that he was an Indian  national.   The  trying magistrate  rejected this defence and convicted him  holding (a)  that the fact that the respondent obtained  a  Pakistan passport proved that he had disowned Indian nationality  and ceased to be an Indian national and (b) that by refusing  to extend the time fixed by the visa the Central Government had

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decided  that the respondent was a foreigner and under s.  8 of the Foreigners Act, such a decision was final.  An appeal by the respondent was dismissed by the Sessions judge on the ground  that the respondent’s application for  extension  of the time fixed by the visa proved that he had renounced  his Indian  nationality  and  had acquired  the  citizenship  of Pakistan.   The High Court of Andhra Pradesh set  aside  the conviction  in revision.  On appeal by the State  of  Andhra Pradesh, Held, that neither the Magistrate nor the Sessions Judge was competent  to come to a finding of his own that the  respon- dent,  an Indian national, had disowned his nationality  and acquired  Pakistan  nationality  for under s.  9(2)  of  the Citizenship  Act, 1955, that decision could only be made  by the prescribed authority which under the Rules framed  under the  Act  was  the Central Government.  The  fact  that  the Central  Government had refused to extend the visa  did  not show  that  it  had  decided  under  the  section  that  the respondent had renounced his Indian nationality and acquired Pakistan  citizenship.   In  any event, in  order  that  the Central Government might come to a decision under s. 9(2) of the Citizenship Act an enquiry as laid down in r. 30 Of  the Rules  framed  under  the Act had to be  made  and  no  such inquiry had been made. On  the facts established, the respondent became  an  Indian citizen  under  Art. 5(a) of the Constitution when  it  came into  force.  He thereby discharged the onus laid on him  by s.  9 of the Foreigners Act to prove that he was  an  Indian citizen when that was in dispute.  The passport obtained  by the   respondent   from  the  Pakistan   Government   would, therefore,   only  be  evidence  that  the  respondent   had renounced   Indian   nationality   and   acquired   Pakistan citizenship.  Such evidence was however of no use in a court for no court could in view of s. 9(2) of the Citizenship Act decide   whether  an  Indian  citizen  had   renounced   his citizenship  and  acquired  the  citizenship  of  a  foreign country. Section  8 of the Foreigners Act had no application  to  the case as it only applied where a foreigner is recognised as a national  by  the law of more than one  foreign  country  or where it is uncertain what nationality is to be ascribed  to a  foreigner  and  in  the present case  that  was  not  the question but the question was whether the respondent was  an Indian or a foreigner. The respondent’s short visit to Pakistan had not amounted to a migration to that country. Query,  whether  Art.  7 of  the  Constitution  contemplates migration from India to Pakistan after January 26, 1950.                             739

JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 192  of 1959. Appeal  by special leave from the judgment and  order  dated October  27,  1958,  of the Andhra  Pradesh  High  Court  at Hyderabad in Criminal Revision Case No. 395 of 1958. M.   C.  Setalvad,  Attorney-General  of  India,  T.  V.  R. Tatachari and T. M. Sen, for the appellant. R. Thiagarajan for N. S. Mani, for respondent. 1961.  April 4. The Judgment of the Court was delivered by SARKAR,  J.-The  respondent was convicted  by  the  Judicial Magistrate of Adoni in the State of Andhra Pradesh, under s. 14 of the Foreigners Act, 1946.  His appeal to the  Sessions

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Judge  of  Kurnool was dismissed.  He then  moved  the  High Court  of  Andhra  Pradesh  in  revision  and  the  revision petition was allowed.  Hence the present appeal by the State of Andhra Pradesh. The  facts  found  were  these: On  January  20,  1955,  the respondent  had come to Adoni on a passport granted  by  the Government of Pakistan which bore the date January 10, 1955. The passport had endorsed on it a visa granted by the Indian authorities which permitted the respondent to stay in  India up  to April 14, 1955.  The respondent continued to stay  on in  India  after  that date.  On some  date,  not  precisely ascertainable  from  the record, he appears to have  made  a representation  to the Government of India for extension  of his visa till September 2, 1957, on grounds of health.   The records do not however show what order, if any, was made  on this  representation.  On September 3, 1957, an order  dated August  9, 1957, made by the Government of  Andhra,  Pradesh requiring  him to leave India, was served on the  respondent As  the respondent did not leave India as directed  by  this order, he was prosecuted with the result earlier stated. The passport showed that the respondent was born at Adoni in 1924 The respondent appears to have 740 produced an extract from the municipal birth register, which is  not on the record, but presumably showed that he was  so born.   The only evidence on the record of the date when  he left India, shows that  must have been at the end of 1954 or early  in 1955.  There is evidence to show that he had  been paying rent for his -,hop at Adoni for about ten years prior to 1958 and his parent s. brothers, wife, and children were. and bad always been in India. The  respondent was charged with the breach of the order  to leave  India  which had been made under s. 3 (2)(c)  of  the Foreigners  Act.   Now the order could not be made  on  him, neither  could he be convicted for breach of it, if lie  was not  a foreigner.  That was the defence of  the  respondent, namely that he was not a foreigner.  The question is, was  a foreigner? The learned Judicial Magistrate found that by obtaining  the passport  from  the Pakistan authorities, "he  has  disowned Indian nationality and has ceased to be an Indian National." He  also held that s. 9 of the Foreigners Act did not  apply to  the  case but s. 8 of that Act did and that  under  that section a decision made by the Government that a person is a foreigner is final and such a decision had been made in this case regarding the respondent as the Government had  decided not to grant him an extension of his visa.  On these grounds he found that the respondent was a foreigner. It  seems  to  us that both  these  grounds  are  untenable. Section 8 applies to a case where "a foreigner is recognised as a national by the law of more than one foreign country or where  for any reason, it is uncertain what  nationality  if any is to be ascribed to a foreigner." The section  provides that  in  such cases the prescribed authority has  power  to decide  of which country the foreigner is to be  treated  as the national and such decision shall be final.  The section, therefore,  applies to a person who is a foreigner  and  the question  is of which foreign country he is a national.   In the  case  of the respondent no such question arose  and  no decision could be or was made by any prescribed authority of such  question.   The learned Magistrate  therefore  clearly went wrong in relying on s. 8.                             741 As regards the passport, the learned Magistrate did not come to the finding that it proved the respondent to have been  a

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Pakistani  national all along.  What he Al did was to  think that the respondent who had earlier been an Indian national, had by obtaining it, disowned Indian nationality and  ceased to be an -Indian national. Now, s. 9(2) of the Citizenship Act, 1955, provides that  if any  question  arises as to whether an  Indian  citizen  has acquired  the  citizenship of another country, it  shall  be determined  by such authority and in such manner as  may  be prescribed.   Under  r. 30 of the rules  framed  under  that Act,,  the authority to decide that question is the  Central Government.   So  the question whether  the  respondent,  an Indian citizen, had acquired Pakistani citizenship cannot be decided   by   courts.   The  learned  Magistrate   had   no jurisdiction  therefore  to  come  to  the  finding  on  the strength  of  the passport that the  respondent,  an  Indian citizen, had acquired Pakistani citizenship.  Nor was  there anything  before  the learned Magistrate to  show  that  the Central  Government  had  decided that  the  respondent  had renounced Indian citizenship and acquired that of  Pakistan. The  learned  Magistrate  thought -that the  fact  that  the Central  Government had refused to extend  the  respondent’s visa  proved  that  it  had decided  that  he  had  acquired Pakistani  nationality.  This view again was not  warranted. There  is  nothing to show that the Central  Government  had refused  to extend the respondent’s visa.  Even if  it  had, that would not amount to a decision by it, that the  respon- dent, an Indian citizen, had acquired subsequently Pakistani nationality for there may be such refusal when an  applicant for  the extension had all along been a Pakistani  national. Furthermore,  in order that there may be a decision  by  the Central  Government  that  an Indian  citizen  has  acquired foreign nationality, an enquiry as laid down in r. 30 of the rules framed under the Citizenship Act has to be made and no such enquiry had at all been made.  That being so, it cannot be  said  that the Central Government had decided  that  the respondent, an Indian citizen, had acquired the  citizenship of Pakistan. 742 The  question  whether a person is an Indian  citizen  or  a foreigner,  as distinct from the question whether  a  person having  once  been  an Indian  citizen  has  renounced  that citizenship  and acquired a foreign nationality, is not  one which  is within the exclusive jurisdiction of  the  Central Government  to  decide.   The  courts  can  decide  it  and, therefore,  the learned Magistrate could have done so.   He, however,  did not decide that question, that is,  find  that the respondent had been a Pakistani national all along.   On the  evidence  on the record such a finding would  not  have been  warranted.   For all these reasons we think  that  the conviction  of the respondent by the learned Magistrate  was not well founded. Coming now to the decision of the learned Sessions Judge, he seems  to  have  based himself on  the  reasoning  that  the "conduct  of the appellant" that is, the  respondent  before us, "in applying for extension of time shows that he is  not a  citizen of India and that he has acquired citizenship  of Pakistan.   If  he were a citizen of India,  he  could  have raised  this plea and this question could have been  decided by the Central Government as envisaged by Rule 30,  sub-Rule I of the Rules made under the Citizenship Act and there  was no  necessity  to apply for extension." Quite  plainly,  the learned Sessions Judge was proceeding on the basis that  the respondent had renounced his Indian citizenship and acquired Pakistani citizenship.  As we have said earlier, that is not a  question which is open to a court to decide and there  is

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no evidence to show that it has been decided by the  Central Government  who  alone  has the power  to  decide  it.   The learned  Sessions  Judge  did  not  direct  himself  to  the question   which  lie  could  decide,  namely  whether   the respondent had from the beginning been a Pakistani  citizen. His decision, therefore, cannot also be sustained. We  have examined the evidence on the record our.,elves  and are  unable  to say that a conviction can be  based  on  it. There  can  be no conviction unless it can be  held  on  the evidence that the respondent is a foreigner, that is to say, a person who is not an Indian                             743 citizen: see s. 2(a) of the Foreigners Act as amended by Act 11 of 1957. The  evidence shows that the respondent did go to  Pakistan, but  the only evidence with regard to that is that  he  went there about the end of 1954 or the beginning of 1955.   This evidence  also  indicates that he stayed there for  a  short time.   He  was all along paying the rent for  his  shop  in Adoni.  His family bad always been there.  Therefore it  can be said that he had never migrated to Pakistan.  Clearly,  a short  visit  to Pakistan would not amount to  migrating  to that  country.  The passport obtained by him  from  Pakistan would no doubt be evidence that he was a Pakistani national. As on the facts of this case he must be held to have been an Indian citizen on the promulgation of the Constitution,  the passport  can  show no more than that  he  renounced  Indian citizenship   and  acquired  Pakistani  nationality.    Such evidence would be of no use in the present case for, in view of  s.  9(2) of the Citizenship Act, a Court  cannot  decide whether  an Indian citizen has acquired the  citizenship  of another country. The  position  then  is this.  The  respondent  has  clearly discharged  the  onus  that lay on him under  s.  9  of  the Foreigners  Act  to prove that he was not  a  foreigner,  by proving  that  he was born and domiciled in India  prior  to January 26, 1950, when the Constitution came into force  and thereby had become an Indian citizen under Art. 5(a) of  the Constitution.   He  has  further proved that  he  had  never migrated  to  Pakistan.   It has not  been  shown  that  the Central Government had made any decision with regard to  him under  s.  9 of the Citizenship Act that he has  acquired  a foreign  nationality.  Therefore, it cannot be held  by  any court  that  the respondent who was an  Indian  citizen  has ceased to be such and become a foreigner.  That being so, it must  be  held  for  the  purpose  of  this  case  that  the respondent  was not a foreigner and no order could  be  made against  him  under  s.  3(l)(c)  of  the  Foreigners   Act. Conviction  for  breach of such an order by  the  respondent would be wholly illegal. 744 Though  we are upholding the decision of the High Court,  we wish  to  observe  that we do not do so  for  the    reasons mentioned by it.  It is unnecessary to discuss those reasons but we would like to point, out one thing, namely. that  the High Court seems to have been of the opinion that Art. 7  of the  Constitution  contemplates  migration  from  India   to Pakistan even after January 26, 1950.  We desire to make  it clear  that we should not be taken to have accepted  or  en- dorsed the correctness of this interpretation of Art. 7. The reference  in the opening words of Art. 7 to Arts. 5  and  6 taken  in conjunction with the fact that both Arts. 5 and  6 are  concerned with citizenship (at the commencement of  the Constitution) apart from various other considerations  would appear  to  point  to  the  conclusion  that  the  migration

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referred  to in Art. 7 is one before January 26,  1950,  and that  the contrary construction which the learned Judge  has put  upon Art. 7 is not justified, but in the view  that  we have  taken  of  the facts of this case,  namely,  that  the respondent  had  never  migrated  to  Pakistan,  we  do  not consider it necessary to go into this question more fully or finally pronounce upon it. In the result we dismiss the appeal. Appeal dismissed.