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PETITIONER: STATE OF ASSAM

       Vs.

RESPONDENT: JILKADAR ALI

DATE OF JUDGMENT18/07/1972

BENCH: SHELAT, J.M. BENCH: SHELAT, J.M. KHANNA, HANS RAJ

CITATION:  1972 AIR 2166            1973 SCR  (1) 685  1972 SCC  (2) 320

ACT: Foreignerse  Act 1946-Section 14 read with clause 7  of  the Foreigners’  Order  1948-Whether  a  person  who  opted  for service  in  Pakistan after partition and leaving  India  to settle  in  Pakistan  permanently will be  considered  as  a "foreigner", under the Foreigners’ Act 1946.

HEADNOTE: Prior  to  1947, the respondent was in the  service  of  the Government  of Assam as an unarmed Police constable  and  on partition,  he opted for service Pakistan.   The  respondent went   to  the  then  East  Pakistan  and  joined   Pakistan Government service as a peon. He  entered  India in 1953 on the strength  of  a  Pakistani passport  but returned to Pakistan in 1954.  Again in  1955, he obtained an Indian visa which was valid upto January  26, 1955.   On the strength of that visa, he entered  India  but instead  of returning to Pakistan, he over-stayed  until  he was detected and arrested.  He was then prosecuted under  s. 14  of  the Foreigners’ Act 1946 read with Clause 7  of  the Foreigners Order, 1948. The  Additional District Magistrate Convicted and  sentenced him  and  the Sessions Judge also upheld the said  order  of conviction  and  sentence.  In a revision  application,  the High  Court,  relying  on Fida Hussain v.  U.P.,  [1962],  1 S.C.R.  776,  reversed  the said  order  of  conviction  and sentence  and acquitted him on the ground that he was not  a ’foreigner’ under s. 2(a) of the Foreigners’ Act, but was  a citizen  of India under Art. 5 of the Constitution; when  he entered  India  in  1955 (before  the  said  definition  was amended in 1957. Allowing the appeal, Held  :(1)  The respondent was a foreigner when  he  entered India  in 1955 as the definition of ’foreigner’  then  stood and  by overstaying beyond the period permissible under  the visa,  he  clearly  committed  breach of  Clause  7  of  the Foreigners Order, 1948 and was liable to be convicted  under S. 14 of the Foreigners Act, 1946. (690B-C] The  crucial  point  in the present case,  was  whether  the Respondent  had migrated to Pakistan between 1947 and  1950. If  he  did,  then notwithstanding his  complying  with  the requirement of Art. 5, his case would fall under Art. 7  and

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he would be deemed not to be a citizen even, on the date  of his  entry in India in 1955.  Considering the facts  of  the present  case, viz., the option exercised by the  respondent for Pakistan service, his having secured release from Indian service, as a constable, his going to Pakistan and obtaining service  there  as  a peon, his staying  there  for  a  long period; his obtaining Pakistani passport and visas declaring therein  that  he  had acquired  Pakistani  citizenship  and domicile  etc; there could be no doubt that he had  gone  to Pakistan permanently.  His case thus fell within Art. 7  and therefore, at his entry in India in 1955 he was a person who was deemed not to be a citizen of India. [688C-G] H.   P.  v.  Peer Mohammad, [1963] 1  S.C.R.  429,  Kulathil Mammu  v.  Kerala,  [1966] 3 S.C.R. 706,  State  v.  Ibrahim Nabiji, A.I.R. 1959 Bom. 526 and State v. Akub, A.I.R.  1961 All. 428, referred to. 686

JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 176  of 1969. Appeal  from the Judgment and order dated November 12,  1968 of  the Assam and Nagaland High Court in Criminal  Revission No. 73 of 1968. K.   P. Gupta, for the appellant V.   A. Setyid Mahmud and S. K. Nandy, for the respondent. The Judgment of the Court was delivered by Shelat,  J. Prior to August 15, 1947, the respondent was  in the service of the Government of Assam as, an unarmed Police Constable bearing No. 407, serial No. 29.  On partition,  he opted for service in Pakistan.  Consequent on his exercising such option, the Assam Government passed an order No.  2155, dated  December. 31, 1947, releasing him’ from service  ’and directing him to report to the Inspector-General of  Police, Dacca for service there.  The respondent thereafter went  to the  then  East  Pakistan  and  joined  Pakistan  Government service   as  a  peon  in  the  sub-registrar’s  office   at Fenchugani, District Sylhet. He  entered India on December 23, 1953-on the strength of  a Pakistani  passport, dated September 10, 1953 and an  Indian visa   dated  November  11,  1953.   He  appears   to   have returned,to  Pakistan  on April 25, 1954.,  On  January  27, 1955, he again applied for and obtained an Indian visa which was  valid upto January 26, 1955.  On the strength  of  that visa,  he  entered  India  on April  4,  1955.   Instead  of returning  to  Pakistan, he overstayed ’beyond  January  26, 1955 until he was detected on October 9, 1964 in the village Niargram,  Salchar Sub-Division in the house of one  Tozamul Ali Majumdar.  He had at that time no permit as required  by cl. 7 of the Foreigners Order, 1948, as-amended in 1959.  He was  consequently arrested and prosecuted under sec.  14  of the  Foreigners Act, 1946 read with cl. 7 of the  Foreigners Order, 1948. The  Additional District- Magistrate, Silchar convicted  him under  cl. 7 of the Foreigners Order read with s. 14 of  the Foreigners   Act,  1946  and  sentenced  him   to   rigorous imprisonment for a period of six months and directed that he should  to deported from India after he had served  out  the sentence.   On  appeal by the respondent  against  the  said order  of  conviction  and  sentence,  the  Sessions  Judge, Silchar upheld the said order of conviction and sentence. In  the revision application filed by him in the High  Court of  Assam  and Nagaland, the High Court, relying  pip  Fidea

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Hussain v.   U.P.(1),  reversed  the said order  of  conviction  and sentence and (1) [1962] 1 S.C.R. 776. 687 accepting the revision acquitted him.  The reasoning adopted by the High Court was that as in the case of Fida Hussain(1) the  respondent  was a natural born  British  subject,  that being so he was at ’the date of his entry in India in  April 1955 a citizen of India under Art. 5 of the Constitution and that he was governed by the definition of a foreigner in the Foreigners Act before that Act was amended in 1957.   Before the said amendment, a foreigner as defined by s. 2(a)  meant a person who:               (i)   is not a natural born British subject as               defined in sub-sections (1) and (2) of sec.  I               of  the  British  Nationality  and  Status  of               Aliens Act, 1914, or               (ii)  has  not been granted a  certificate  of               naturalization as a British subject under  any               law for the time being in force in India, or               (iii) is not a citizen of India. The  High Court felt that the respondent fell under cl.  (i) of  the  said definition and therefore was not  a  foreigner when  he  entered  India in April  1955  (i.e.,  before  the definition  was  amended in 1957) and  was  not,  therefore’ required  to obtain a permit under cl. 7 of  the  Foreigners Order,  1948.  According to the High Court, if  the  amended definition applied to the respondent it would be the Central Government  and  not a court of law which  could  under  the Citizenship  Act, 1955 be the appropriate authority to  deal with such questions. In  our  view the reasoning adopted by the  High  Court,  of which  the basis was the decision in Fida Hussain’s  case(1) was not valid as the High Court omitted to take into account the fact of the respondent having left India for Pakistan in August 1947 after he has opted for service in Pakistan. The defence of-the respondent was that he was born in India, that he owned a house and lands in India and was therefore a citizen  of  India  within  the meaning of  Art.  5  of  the Constitution.   There is, however, the fact  established  by the record in this case that in 1947 he opted for  Pakistani service,  and  that  he left India  for  Pakistan  where  he obtained service as a peon and that he lived there from 1947 to  1953  when  he came to India on a  short  visit  on  the strength  of  a  Pakistani  passport and  a  visa  and  then returned to Pakistan. Under Art. 7, notwithstanding anything in Art. 5, a  person, who has after the first day of March 1947, migrated from the territory  of  India to the territory included  in  Pakistan shall  not be deemed to ’be a citizen of India.  If  Art.  7 applied to this case (1)  [1962] 1 S.C.R. 776. 688 the respondent would not be deemed to be a citizen of  India notwithstanding his complying with the conditions of Art. 5. It  is  quite clear from H.P. v. Pear  Mohammad(1)  that  it would  be  Art. 7 and not the Citizenship  Act,  1955  which would  apply  to  a  case where a  person  has  migrated  to Pakistan between March 1, 1947 and January 26, 1950 when the Constitution came into force.  If Art. 7 were to apply it is clear  that the court and not the Central Government or  its delegate  which  would have jurisdiction to  deal  with  the question  whether the person concerned is a foreigner to  be dealt with under the Foreigners Act.

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The  crucial point in the case, therefore, was  whether  the respondent  had migrated to Pakistan between March  1,  1947 and  January 26, 1950.  If he did, then notwithstanding  his complying  with the requirements of Art. 5, his  case  would fall under Art. 7 and he would be deemed not to be a citizen even  on  the date of his entry in India on April  4,  1955. What  then is the connotation of the word ’migrated’  within the  meaning of Art. 7 in Kulathil Mammu v. Kerala(1),  this Court  interpreted Art. 7 and held that the word  ’migrated’ was capable of two meanings.  In its narrower connotation it meant going from one place to another with the intention  of residing  permanently  in  the latter place;  in  its  wider connotation it simply meant going from one place to  another whether or not with the intention of permanent residence  in the  latter place. in Art. 7 the word was used in its  wider sense  though  it did not take in movement   which  was  in- voluntary  or  for a specific purpose and for  a  short  and limited period.  Considering the facts of the present  case, viz.,  the option exercised by the respondent  for  Pakistan service, his having secured release from Indian service as a constable, his going to Pakistan and obtaining service there as  a peon in the sub-registrar’s office, his staying  there thereafter  for  a  long  period,  his  obtaining  Pakistani passport  and visas declaring therein that he  had  acquired Pakistani  citizenship and domicile, there can be  no  doubt that  he had gone to Pakistan permanently.  His movement  to Pakistan  thus  was neither involuntary nor for a  short  or limited period, but was clearly with the definite  intention of  having a permanent place of abode there.  His case  thus fell  within Art. 7 and therefore on his entry in  India  on April  4,  1955 he was a person who wag deemed not to  be  a citizen of India. In   Fida  Hussain  v.  U.P.  (3),  the  question   of   the applicability of Art. 7 did not arise and was not considered presumably  because it was not contended that  Fida  Hussain had  migrated  to the territory which fell  within  Pakistan between  March  1, 1947 and January 26,  1950.   The  Court, therefore,  considered  only  cl.  (1) of  S.  2(1)  of  the Foreigners Act, 1945 and not its cl. (3) as it (1)  [1963] Supp.  1 S.C.R. 429 (3)     [1962] 1 S.C.R. 776. (2) [1966] 3 S.C.R. 706. 689 stood  before  its amendment in 1957.  It appears  that  the only date available there was the date of his entry in 1953, when  the  unmended  definition prevailed.   It  could  not, therefore,  be  said there that he had migrated  from  India between  March  1,  1947  and January  26,  1950,  and  that therefore,  he would be deemed not to be a citizen of  India under  Art.  7. In our view, the High Court could  not  have relied  on  Fida Hussain’s case (supra) for  its  conclusion that  the respondent was not a foreigner in April 1955,  and that  therefore,  Cl. 7 of the Foreigners’ Order  could  not apply to him. Cl.  7  of  the Foreigners’ Order 1948 by  its  sub-cl.  (1) requires  every foreigner who enters India on the  authority of  a  visa to obtain a permit from the  relevant  authority indicating  the  period during which he  is  authorised  ’to remain  in  India.   The visa  obtained  by  the  respondent permitted him to stay in India till January 26, 1956.  If he wanted  to stay beyond that period, it was incumbent on  him as  provided  by  sub-cl. (3) of cl. 7 to  obtain  from  the relevant  authority  thereunder an extension of  the  period mentioned in the visa.  In the absence of such an  extension he  was  bound  to depart from India on  January  26,  1956. Admittedly  he  did not, but on the  contrary  continued  to

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remain in India, until he was detected in 1964. Dr.   Mahmood,  however,  relied  on  the  Registration   of Foreigners (Exemption) Order, 1957.  But whether the respon- dent  was  exempted  under that order  or  not  is  entirely irrelevant  for  the  purposes of cl. 7  of  the  Foreigners Order,  1948,  whose  purpose  clearly  is  to  see  that  a foreigner  entering  India under a visa  does  not  overstay ’beyond the period for which the visa permits him to stay in this  country.   By overstaying here  without  the  required extension the respondent clearly violated the provisions  of cl.  7(1) and (3) of the Foreigners’ Order, 1948 in view  of our conclusion that he was a person who was deemed not to be a  citizen of this country, and therefore, a foreigner  even under  the  definition  of a foreigner in  sec.  2  of,  the Foreigners Act before it was amended in 1957. The  decision in State v. Ibrahim Nabiji(1) referred  to  by counsel also does not assist as it did not have to deal with the point arising in the present appeal, that is with regard to a person who, notwithstanding Art. 5, is to be deemed not to  be  a citizen under Art. 7, and therefore,  a  foreigner within the meaning of sec. 2(a) of the Foreigners Act as  it stood  in  1955.  The State v. Akub (2  )  another  decision relied on by Dr. Mahmood, merely laid down that persons  who are sought to be brought within the scope and ambit of cl. 7 of the Foreigners’ Order, 1948 are (1) A.I.R. 1959.  Bom. 526. (2) A.I.R. 1961 All. 428. 690 persons who are. not citizens of India, and that clause  did not  apply to those who were not foreigners at the  date  of their entry although they may become foreigners after, their entry by reason of the amendment of the definition in. 1957. This decision again cannot assist the respondent in, view of our concluSion with regard to Art. 7 by reason of which  the respondent even at the date of his entry in 1955 was  deemed not to be a citizen of India. In  our view the respondent was a foreigner when he  entered India  in  April 1955 as the definition  of  foreigner  then stood,  and  by overstaying beyond  the  period  permissible under the visa on the strength of which he had entered India he  clearly  committed breach of cl. 7  of  the  Foreigners’ Order, 1948 and was liable to be punished under s. 14 of the Foreigners Act, 1946.  He was, therefore, rightly  convicted and  sentenced by the Trial Magistrate.  The High Court,  in our  view, erred in setting aside that order  of  conviction and  sentence.   The  appeal by  the  State  is,  therefore, allowed and the order of the Trial Court is restored. S.C.                                                  Appeal allowed. 691