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PETITIONER: STATE OF MADHYA PRADESH

       Vs.

RESPONDENT: PEER MOHD. & ANOTHER.

DATE OF JUDGMENT: 28/09/1962

BENCH: GAJENDRAGADKAR, P.B. BENCH: GAJENDRAGADKAR, P.B. SINHA, BHUVNESHWAR P.(CJ) WANCHOO, K.N. GUPTA, K.C. DAS SHAH, J.C.

CITATION:  1963 AIR  645            1962 SCR  Supl. (1) 429  CITATOR INFO :  F          1965 SC 810  (6)  R          1966 SC1614  (13)  R          1971 SC1382  (11)  R          1972 SC2166  (6)  R          1974 SC  28  (1)  R          1986 SC1534  (8)

ACT: Citizenship-Foreigner-Indian   going   to   Pakistan   after Constitution-Return  on Pakistani passport-If ceases  to  be citizen  of India-Constitution of India, Art.  7-Citizenship Act, 1955 (57 of 1955).

HEADNOTE: The  respondents who were citizens of India left  India  for Pakistan sometime after January 26, 1950.  They returned  to India  in 1956 on the strength of a Pakistani  passport  and visa.  They continued to stay in India even after the period of  the  visa had expired and were prosecuted  under  s.  14 Foreigners  Act’  1946, read with cl. 7  Foreigner’s  Order, 1948,  for unauthorised and illegal overstay in India.   The High  Court acquitted them holding that they had not  become foreigners  on.account of their leaving India after  January 26,  1950,  and  the question whether they  had  lost  their Indian  citizenship on account of acquisition  of  Pakistani citizenship  could  not be agitated before a court  of  law. The  appellant  contended  that in view of  Art.  7  of  the Constitution the respondents could 430 not  be deemed to be citizens of India as they had  migrated to Pakistan after March 1, 1947, within the meaning of  Art. 7. Held,  that  Art. 7 was applicable only to persons  who  had migrated to Pakistan between March 1, 1947, and January  26, 1950, and under this Article the respondents had not  ceased to be citizens of India.  The words "has migrated" in Art. 7 could  not include cases of persons who would migrate  after the  commencement  of the Constitution, they refer  only  to persons  who had migrated at the date when the  Constitution

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came  into  force.   The  absence  of  the  words  "at   the commencement   of  the  Constitution"  in  Art.  7  has   no significance.   Cases of acquisition of foreign  citizenship after  January 26, 1950, were covered by the  provisions  of the Citizenship Act, 1955, and of the rules made thereunder. The  Central Government or its delegate was the  appropriate authority to deal with such questions and they could not  be tried in courts. Izhar Ahmad Khan v. Union of India, referred to.

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION: Criminal Appeal No. 12  of 1961. Appeal  from the judgment and order dated April 26 1960,  of the  Madhya Pradesh High Court Jabalpur in  Criminal  Appeal No. 388 of 1958. B. Sen and I. N. Shroff, for the appellant. The respondent did not appear. 1962.   September  28.   The  Judgment  of  the  Court   was delivered by GAJENDRAGADKAR,  J.-A  charge-sheet  was  presented  by  the appellant   the   State  of  Madhya  Pradesh   against   the respondents  Peer Mohammad and his wife Mst.  Khatoon  under s.  14 of the Foreigners Act, 1946 (hereinafter  called  the Act)  read  with  cl.  7  of  the  Foreigners  Order,   1948 (hereinafter   called  the  Order)  in  the  Court  of   the Magistrate  1st  Class,  Burhanpur.  The  case  against  the respondents was that they had entered India on May 13, 1956, on the strength of a Pakistani passport and a visa issued in their  favour on.May 8, 1956, and reached Burhanpur  on  May 15, 1956.  Even after the period of the                             431 visa   had  expired,  they  continued  to  stay  in   India. Consequently,  the district Magistrate, Burhanpur, served  a notice  on them on May 14, 1957 calling upon them  to  leave India  on or before May 28, 1957.  The respondents  did  not comply with the notice and by their unauthorised and illegal over-stay in India, they rendered themselves liable under s. 14 of the Act and cl. 7 of the Order. The  respondents pleaded that they were not  foreigners  but were  citizens  of  India.   They  were  born  in  India  at Burhanpur  and  had  been permanent residents  of  the  said place;  and so the present criminal  proceedings  instituted against them were misconceived. The  prosecution,  however, urged that the  respondents  had left  India for Pakistan some time after January  26,  1950, and  under Art. 7 of the Constitution they cannot be  deemed to  be citizens of India.  In the alternative, it was  urged that   since  the  respondents  had  obtained  a   Pakistani passport,  they have acquired the citizenship of  a  foreign country  and that has terminated their citizenship of  India under s. 9 of the Citizenship Act, 1955 (LVII of 1955).   It appears that before the learned Magistrate, only this latter plea  was pressed and the learned Magistrate held  that  the question  as  to  whether the  respondents  had  lost  their citizenship  of India under s. 9 (2) of the Citizenship  Act has  to be decided by the Central Government and  cannot  be agitated  in  a  court  of  law.   Therefore,  the   learned Magistrate  passed  an  order under s. 249 of  the  Code  of Criminal Procedure, directing that the respondents should be released,  and  the  passport seized  from  them  should  be returned to them after the period of appeal, if any. Against this order, the appellant preferred an appeal in the

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High  Court of Madhya Pradesh, and before the High Court  it was  urged  by the appellant that on a fair  and  reasonable construction of Art. 7 432 it  should be held that the respondents cannot be deemed  to be  citizens of India *and so, they were liable under s.  14 of the Act and cl. 7 of the Order.  This appeal was heard by Shrivastava  and Naik, JJ.  Shrivastava, J., took  the  view that Art. 7 did not apply to the case of the respondents who had left India for Pakistan after January 26, 1950, and  so, they  could not be held to be foreigners on the ground  that they had left India as alleged by the prosecution.  Naik,J., however,  came to a contrary conclusion.  He took  the  view that since it was proved that the respondents had left India for  Pakistan after January 26, 1950, Art. 7  was  attracted and  so, they must be deemed to be foreigners.  Since  there was  a difference of opinion between the two learned  judges who  heard  the  appeal, it was referred  to  Newaskar.   J. Newaskar, J., agreed with the conclusion of Shrivastava, J., and  so, in the light of the majority opinion, it  was  held that  under Art. 7, the respondents could not be held to  be foreigners. In  regard to the alternative case of the  prosecution  that the  respondents had obtained a Pakistani passport  and  so, had lost their citizenship under s. 9(2) of the  Citizenship Act,  the High Court held that it was a matter which had  to be determined by the Central Government and it is only after the  Central  Government  decides  the  matter  against  the respondents  that  the appellant can proceed to  expel  them from  India.  It, however, appears that the High Court  read the order passed by the trial Magistrate as amounting to  an order  of  acquittal, and so, quashed the  said  order  with liberty  to  the appellant to  institute  fresh  proceedings against the respondents if and when considered necessary  by it.  In fact, as we have already mentioned, the order passed by  the  trial Court was one under s. 249 Cr.  P.C.  It  is. against  this decision of the High Court that the  appellant has  come  to this Court with a certificate granted  by  the High  Court.   At  this stage, we may add  that  there  were eleven  433 other  cases  of a similar nature which were  tried  by  the Magistrate along with the present case and considered by the High  Court  at the appellate stage.   Appeals  against  the companion  matters are pending before this Court, but  their fate will be decided by our decision in the present appeal. Section  14  of the Act provides, inter alia,  that  if  any person  contravenes  the provisions of this Act  or  of  any order  made thereunder, he shall be punished in  the  manner prescribed  by  the section.  Clause 7 of the  Order  issued under  the  said  Act prescribes that  every  foreigner  who enters India on the authority of a visa issued in  pursuance of  the  Indian  Passport Act, 1920 shall  obtain  from  the Registration Officer, specified therein, a permit indicating the period during which he is authorised to remain in  India and  shall,  unless the period indicated in  the  permit  is extended by the Central Government, depart from India before the expiry of the said period.  The prosecution case is that the  respondents  having  entered India  with  a  visa  have overstayed in India after the expiration of the visa and the period indicated in the permit and so, they are liable to be punished under s.   14 of the Act and cl. 7 of the Order. It  would  be  noticed that in order  that  the  respondents should be liable under the said provisions, it must be shown that  when  they entered India, they  were  foreigners.   In

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other  words, cl. 7 of the order applies to every  foreigner who enters India in the manner therein indicated ; and  that raises  the  question  as to whether  the  respondents  were foreigners   when  they  entered  India.   The   prosecution contends  that  the  respondents  were  foreigners  at   the relevant  date on two grounds.  It is urged that  they  left India  for  Pakistan after January 26, 1950, and  so,  under Art. 7 they cannot be deemed to be citizens of India at  the relevant  time.   The alternative ground is that  they  have acquired a passport from the Pakistan 434 Government  and  as such they lost the citizenship  of  this country under s. 9(2) of the citizenship Act.  It is  common ground  that  the latter question has to be decided  by  the Central Government, and so, this J.     Court     is     not concerned  with it.  The only question which falls  for  our decision,  therefore, is: can the respondents be said to  be foreigners  at the relevant date under Art. 7, because  they left India for Pakistan after January 26, 1950 ? The  answer to this question would depend on the construction of Art. 7. In  construing  Art.  7, it would be  necessary  to  examine briefly the scheme of the seven Articles that occur in  Part 11.   These Articles deal with the question of  citizenship. Article   5  provides  that  at  the  commencement  of   the constitution,  every  person  who has his  domicile  in  the territory of India and who satisfies one or the other of the three tests prescribed by cls. (a), (b) and (c), shall be  a citizen  of  India.  Article 6 deals with persons  who  have migrated  to  the territory of India from  Pakistan  and  it provides  that they shall be deemed to be citizens of  India at the commencement of the Constitution if they satisfy  the requirements  of clauses (a) & (b).  In other words, Art.  6 extends  the right of citizenship to persons who  would  not satisfy  the  test of Art. 5, and so, persons who  would  be entitled  to  be  treated  as  citizens  of  India  at   the commencement of the Constitution are covered by Arts. 5  and 6.  Article  7  with which we are  concerned  provides  that notwithstanding anything in Arts. 5 and 6, a person who  has after March 1, 1947, migrated from the territory of India to the  territory now included in Pakistan shall not be  deemed to  be a citizen of India.  The proviso deals  with  persons who  having  migrated  to  Pakistan  have  returned  to  the territory  of  India  under a  permit  for  resettlement  or permanent return, but with that class of persons we are  not concerned in the present appeal.  Article 8 deals with the  435 rights of citizenship of persons of Indian origin who reside outside India.  Article 9 provides that no person shall be a citizen  of  India by virtue of Arts. 5, 6 or 8, if  he  has voluntarily  acquired the citizenship of any foreign  State. Articles  10  and  11  then lay  down  that  the  rights  of citizenship prescribed by Arts. 5 and 6 shall be subject  to the  provisions of any law that may be made  by  Parliament; that  is to say, the said rights will continue  unless  they are otherwise affected by any law made by Parliament in that behalf.   Article 11 makes it clear that the  provisions  of Part  11 Will Dot derogate from the power of  Parliament  to make  any  provision  with respect to  the  acquisition  and termination  of’ citizenship and all other matters  relating to citizenship.  That, in brief, is the scheme of Part 11. It is urged by Mr. Sen on behalf of the appellant that where the Constitution wanted to limit the scope of the Article by reference   to   the  date  of  the  commencement   of   the Constitution, it has used appropriate words in that  behalf, and  in that connection, he relies on the use of  the  words

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"at  the  commencement of the Constitution" which  occur  in Arts. 5 and 6. Article 7 does not include such a clause, and so,  the  migration  from  the territory  of  India  to  the territory included in Pakistan to which it refers should not be  construed  to be limited to the migration prior  to  the commencement of the Constitution.  Just as a person who  has migrated  to Pakistan from India prior to January  26,  1950 shall  not be deemed to be a citizen of India by  virtue  of such  migration,  so should a person who has  migrated  from India  to  Pakistan  even  after  the  commencement  of  the Constitution  be denied the right of citizenship.   That  is the  appellant’s case and it Is based substantially  on  the ground   that  the  clause  "at  the  commencement  of   the Constitution" is not used by 436 This  argument,  however, cannot be accepted because  it  is plainly  inconsistent  with the material words used  in  the Article.  It will be noticed that a person who shall not  be deemed  to be a citizen of India is one "who has, after  the first  day  of March, 1947, migrated from the  territory  of India  to  the  territory  of Pakistan."  It  is  true  that migration  after January 26, 1950, would be migration  after March  1,  1947,  but  it is clear that  a  person  who  has migrated  after  January 26, 1950, cannot  fall  within  the relevant  clause  because the requirement of the  clause  is that he must have migrated at the date when the Constitution came  into  force.   "Has migrated" in  the  context  cannot possibly  include cases of persons who would  migrate  after the commencement of the Constitution.  It is thus clear that it   is  only  persons  who  had  migrated  prior   to   the commencement of the Constitution that fall within the  scope of Art. 7. The use of the present perfect tense is  decisive against  the appellant’s contention and so, the  absence  of the  words  on  which Mr. Sen relies  has  no  significance. Besides, as the article is worded, the use of the said words would  have been inappropriate and having regard to the  use of  the  present  perfect  tense,  such  words  were  wholly unnecessary.   The proviso to Art. 7 which deals with  cases of persons who having migrated to Pakistan have returned  to India  under  a permit for resettlement, also  supports  the same conclusion.  The migration there referred to appears to be migration prior to the commencement of the Constitution. It is relevant to refer to Art. 9 in this connection.   This Article  deals  with cases of persons who  have  voluntarily acquired  the  citizenship  of  any  foreign  State  and  it provides  that  such  persons  shall not  be  deemed  to  be citizens  of India by virtue of Arts. 5, 6 or 8. Now, it  is clear that the acquisition of the citizenship of any foreign State to which this Article refers is acquisition made prior to the commencement,  437 of the Constitution.  "Has voluntarily acquired" can have no other   meaning,  and  so,  there  is  no  doubt  that   the application of Art. 9 is confined to the case of acquisition of citizenship of foreign State prior to the commencement of the  Constitution.  In other words, the scope and effect  of Art. 9 is, in a sense, comparable to the scope and effect of Art.  7. Migration to Pakistan which is the basis of Art.  7 like  the  acquisition of citizenship of any  foreign  State which  is the basis of Art. 9, must have taken place  before the  commencement of the Constitution.  It will  be  noticed that  migration from Pakistan to India as well as  migration from  India  to Pakistan which are  the  subject-matters  of Arts. 6 and 7 deal with migrations prior to the commencement of  the Constitution.  The Constitution  makers thought  it

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necessary   to  make  these  special   provisions,   because migrations  both ways took place on a very wide scale  prior to  January  26, 1950, on account of the  partition  of  the country.   Migrations  to Pakistan which  took  place  after January 26, 1950, are not specially provided for.  They fall to  be  considered and decided under the provisions  of  the Citizenship  Act;  and  as  we  will  presently  point  out, citizens  migrating  to Pakistan after the said  date  would lose their Indian citizenship if their cases fall under  the relevant provisions of the said Act. It is true that as  Art. 7 begins with a non-obstante clause by  reference  to  Arts.  5  & 6,  and  there  is  a  little overlapping.   The  non-obstante clause may  not  serve  any purpose  in  regard to cases falling under Art. 5  (c),  but such   overlapping   does  not  mean  that  there   is   any inconsistency   between  the  two  Articles  and   it   can, therefore,  have  no effect on the construction  of  Art.  7 itself.   Therefore, we are satisfied that Art. 7 refers  to migration  which has taken place between March 1, 1947,  and January 26, 1950.  That being so, it cannot be held that the respondents  fall within Art. 7 by virtue of the  fact  that they migrated from India to Pakistan some time after 438 January 26, 1950, and should, therefore, be deemed not to be citizens of India. In  this  connection, it is necessary to add that  cases  of Indian  citizens  acquiring the citizenship of  any  foreign State are dealt with by Art. 9, and the relevant  provisions of  the Citizenship Act, 1955.  If the  foreign  citizenship has  been acquired before January 26, 1950, Art. 9  applies; if  foreign  citizenship  has been  acquired  subsequent  to January 26, 1950, and before the Citizenship Act, 1955  came into   force,  and  thereafter,  that  is  covered  by   the provisions of the Citizenship Act, vide Izhar Ahmed Khan  v. Union  of India(1).  It is well-known that  the  Citizenship Act  has  been  passed by the Parliament by  virtue  of  the powers  conferred and recognised by Arts. 10 and 11  of  the Constitution  and  its  relevant provisions  deal  with  the acquisition  of citizenship of India as well as  termination of  the  said  citizenship.  Citizenship  of  India  can  be terminated  either  by  renunciation  under  s.  8,  or   by naturalisation,  registration  or voluntary  acquisition  of foreign  citizenship in any other manner, under s. 9, or  by deprivation under s. IO.  The question about the citizenship of  persons migrating to Pakistan from India  after  January 26, 1950, will have to be determined under these  provisions of  the Citizenship Act.  If a dispute arises as to  whether an  Indian citizen has acquired the citizenship  of  another country  it  has to be determined by such authority  and  in such a manner and having regard to such rules of evidence as may  be prescribed in that behalf That is the effect  of  s. 9(2).   It  may be added that the rules prescribed  in  that behalf have made the Central Government or its delegate  the appropriate  authority to deal with this question, and  that means this particular question cannot be tried in courts. The  result  is that the respondents cannot be  said  to  be foreigners  by virtue of their migration to  Pakistan  after January 26, 1950, and that is the only question (1)  [1962] Supp. 2 S.C.R. 235.  439 which  can be tried in courts.  If the State  contends  that the  respondents have lost their citizenship of India  under s. 9 (2) of the Citizenship Act, it is open to the appellant to move the Central Government to consider and determine the matter,  and if the decision of the Central Government  goes

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against  the  respondents,  it  may  be  competent  to   the appellant   to   take   appropriate   action   against   the respondents.   So  far as the appellant’s case  against  the respondents  under Art. 7 is concerned, the High  Court  was right  in holding that the respondents were  not  foreigners within  the  meaning  of  cl. 7 of  the  Order  and  cannot, therefore, be prosecuted under s. 14 of the Act.  The appeal accordingly fails and is dismissed. Appeal dismissed.