http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 4  

PETITIONER: MASUD KHAN

       Vs.

RESPONDENT: STATE OF UTTAR PRADESH

DATE OF JUDGMENT26/09/1973

BENCH: ALAGIRISWAMI, A. BENCH: ALAGIRISWAMI, A. KHANNA, HANS RAJ SARKARIA, RANJIT SINGH

CITATION:  1974 AIR   28            1974 SCR  (1) 793  1974 SCC  (3) 469

ACT: Foreigners  (Internment) Order, 1962--Proceedings under,  if Criminal--Issue-Estoppel. Foreigners  Act  (13 of 1946), s. 9--Person  with  Pakistani passport claiming to be Indian citizen--Burden of proof.

HEADNOTE: The petitioner came to India from Pakistan on the basis of a Pakistani  passport of July 1954 and Indian visa  of  April, 1956.   On  his  arrest under  the  Foreigners  (Internment) Order, 1962, he contended that he was an Indian citizen  and that he had been illegally arrested and confined in jail. HELD  :  (I)  Under s. 9 of the Foreigners  Act  whenever  a question  arises whether a person is or is not  a  foreigner the  onus  of proving that he is not a foreigner  lies  upon him.   If the petitioner had been in India on 26-1-1950  but had  gone to Pakistan in 1951, it would be for  the  Central Government  to decide whether he is a Pakistani national  or an Indian citizen even though he may have come lo India on a Pakistani  passport in 1956.  But, when he went to  Pakistan is  a matter peculiarly within his knowledge and he had  not produced  any evidence in support of his statement  that  he went  to  Pakistan  only in 1951.  The burden  is  upon  the petitioner to establish that he is a citizen of India in the manner claimed by him and this burden, not having been  dis- charged by him, it should be held that he is a foreigner and his  claim  that he is an Indian citizen must  be  rejected. [794 C-H] (2)  The  petitioner  was  prosecuted under  s.  14  of  the Foreigners  Act and was acquitted on the ground that he  was not  a  foreigner;  but this finding would  not  operate  as issue-estoppel.   Issue-estoppel arises only if the  earlier as   well   as   subsequent   proceedings   were    criminal prosecutions.   In the present case, while the  earlier  one was  a  criminal prosecution, the latter is not  a  criminal prosecution,  but merely action taken under  the  Foreigners (Internment)   Order  for  the  purpose  of  deporting   the petitioner out of India. [794H; 795D-E; 796 HI Pritam  Singh  v.  State of Punjab, A.I.R.  1956  S.C.  415, Manipur  Administration  v. Thokchom, Bira  Singh  [1964]  7 S.C.R.  123, Piara Singh v. State of Punjab [19691 1  S.C.C.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 4  

379, referred to. Sambasivam v. Public Prosecutor, Federation of Malaya [19501 A.C.  458, The King v. Wilkes 77 C.L.R. 511 and Marz v.  The Queen TF C.L.R. 62, applied.

JUDGMENT: ORIGINAL JURISDICTION : Writ Petition No. 117 of 1973. Under Article 32 of the Constitution of India for issue of a writ in the nature of have as corpus. Uma  Datta, for the petitioner. D.   P. Uniyal and 0. P. Rana for the respondent. The  Judgment of the Court was delivered by ALAGIRISWAMI, J. Petitioner Masud Khan prays for his release on the ground that he, an Indian citizen has been  illegally arrested  and  confined to, jail under Paragraph  5  of  the Foreigners  (Internment) Order, 1962.  He had come to  India from Pakistan on the basis of a Pakistani passport dated 13- 7-1954  and Indian visa dated 9-4-1956.  In his  application for  visa he had stated that he had migrated to Pakistan  in 1948 and was in Government service in Pakistan in P.W.D. 794 as  a  Darogha  and  had  given  his  permanent  address  as Hyderabad  (Sind).   If these statements  were  correct  the petitioner would clearly be a Pakistani national.  When this fact  was  brought out in the counter  affidavit  filled  on behalf  of  the respondent, the petitioner filed  a  further affidavit  stating  that  he  was  appointed  as  a   Police Constable  in Hasanganj Police Station,  District  Fatehpur, U.P.  in February 1947 and continued as a  Police  Constable till the middle of 1950 when he was dismissed from  service, and that he went to Pakistan in the year 1951.  In the reply affidavit  filed  on behalf of the respondent it  is  stated that one Md.  Masood Khan son of Zahoor Khan was enrolled as Police  Constable  on 16-9-1947 and he was  discharged  from service  on  20-5-1949.   It  is  fairly  clear  that   this information  culled from the English Order Book  from  1-10- 1947  to  27-12-1951  refers  to  the  petitioner.    While, therefore, it is established that the petitioner did not  go to  Pakistan  in 1948, it cannot be said that  it  has  been established  that  the petitioner went to Pakistan  only  in 1951.   When  he  went to Pakistan is  a  matter  peculiarly within his knowledge and the produced no evidence in support of  that  statement.   Considering the  frequent  change  of ground  which  the  petitioner  has  resorted  to,  a   mere statement  from him cannot be accepted as true.  Nor can  we accept  his  contention  that it is for  the  respondent  to establish  that lie did not go to Pakistan in 1951 but  that he went on some other date.  The petitioner has also alleged that  he was married in U.P. on 25th December,  1949.   Even assuming  that  this statement is  correct,  the  petitioner cannot  establish that he is a citizen of India  unless  lie succeeds in establishing that he was in India on  26-1-1950. If  he  bad  been  in India on 26-1-1950  but  had  gone  to Pakistan  in 1951 it would be for the Central Government  to decide  whether  he  is a Pakistani national  or  an  Indian citizen even though he may have come to India on a Pakistani passport in 1956 (See AIR 1963 SC 645; AIR 1962 SC 1052; AIR 1962  SC  1778; AIR 1961 SC 1467).  That question  does  not arise here. We are not prepared to assume that the petitioner should  be deemed  to have been present in India on 26-1-1950,  as  was urged on behalf of the petitioner.  There is no room for any such presumption.  Under s-9 of the Foreigners Act  whenever

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 4  

a question arises whether a person is or is not a  foreigner the  onus  of proving that he is not a foreigner  lies  upon him.   The  burden  is therefore,  upon  the  petitioner  to establish  that  be  is a citizen of  India  in  the  manner claimed  by  him and therefore be is not  a  foreigner  [See [19621  1 SCR 744; [1963] Supp.  SCR 5601.  This burden  not having  been discharged by the petitioner it should be  held that  he is a foreigner and his claim that he is  an  Indian citizen   cannot   be  dealt  with  under   the   Foreigners (Internment) Order, 1962 must be rejected. It  appears,  however, that in 1960 he had  been  prosecuted before  the Sub-Divisional Magistrate, Fatehpur under s.  14 of the Foreigner--, Act and was acquitted on the ground that he was not a foreigner.  It was therefore contended that the question whether the petitioner is -a foreigner or not is  a matter of issue estoppel.  The decision that he 795 was not a foreigner seems to have been based on the decision of  the Allahabad High Court in Mohd.  Hanif Khan  v.  State (AIR  1960  All. 434).  It was held there that  a  Pakistani national who entered into India before the amendment to  the Foreigners  Act in 1957, when he could not be considered  to be  a  foreigner,  could  not be so  held  because  of  that amendment.   That  decision  was that of  a  learned  Single Judge.   On the point at issue he differed from  an  earlier decision of a learned Single Judge of the same Court in  Ali Sher v. The State (AIR 1960 All. 431).  But he decided  that case  before him on a different point and did not  think  it necessary  to  refer  the case before him  to  a  Bench  for considering  which of the two decisions was correct  on  the question  regarding the nationality of a person who came  to India  on a Pakistani passport before 1957.  There are  thus two  conflicting  decisions of the same court  on  the  same point  and the Magistrate who decided the petitioner’s  case followed one of them. But  that  apart, this matter could be  decided  on  another point..  The question of issue-estoppel has been  considered by  this Court in Pritam Singh v. State,of Punjab (AIR  1956 SC  415),  Manipur Administration v.  Thokchom,  Bira  Singh (1964 7 SCR 123) and Piara Singh S. State of Punjab (1969  1 SCC 379).  Issue-estoppel arises only if the earlier as well as  the subsequent proceedings were  criminal  prosecutions. In  the  present case while the earlier one was  a  criminal prosecution the present is merely an action taken, under the Foreigners  (Internment) Order for the purpose of  deporting the  petitioner  out  of  India.   It  is  not  a   criminal prosecution.  The principle of issue estoppel is simply this : that where an issue of fact has been tried by a  competent court on a former occasion and a finding has been reached in favour  of  an accused, such a finding would  constitute  an estoppel  or res judicata against the prosecution not  as  a bar  to  the  trial  and conviction of  the  accused  for  a different   or  distinct  offence  but  as  precluding   the reception  of evidence to disturb that finding of fact  when the  accused  is tried subsequently, even  for  a  different offence  which  might be permitted by law.   Pritam  Singh’s case (supra) was based on the decision of the Privy  Council in  Sambasivam v. Public, Prosecutor, Federation  of  Malaya (1950 A.C. 458).  In that              case Lord  MacDermott speaking for the Board said :               "The   effect  of  a  verdict   of   acquittal               pronounced  by a competent court on  a  lawful               charge  and  after  a  lawful  trial  is   not               completely  stated by saying that  the  person               acquitted   cannot be tried again for the same

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 4  

             offence.   To that it must be added  that  the               verdict  is  binding  and  conclusive  in  all               subsequent proceedings between the parties  to               the adjudication." It  should  be  kept clearly in  mind  that  the  proceeding referred to herein  is a criminal prosecution.  The plea  of issue-estoppel  is  not  the same as  the,  plea  of  double jeopardy  or autre fois acquit.  In The King v.  Wilkes  (77 C.L.R.  511) Divon, J. referring to the question  of  issue- estoppel said. 79 6 view  that  there  is an issue estoppel, if  it  appears  by record  of itself or as explained by proper  evidence,  that the  same point was determined in favour of a prisoner in  a previous  criminal  trial  which is brought in  issue  on  a second  criminal trial of the same prisoners There  must  be prior  proceeding determined against the  Crown  necessarily involving  an  issue  which again  arises  in  a  subsequent proceeding  by  the Crown against the  same  prisoner.   The allegation of the Crown in the subsequent proceeding must itself be  inconsis- tent with the acquittal of the prisoner in the previous pro- ceeding.  But if such a condition of affairs arises I see no reason  why the ordinary rules of issue-estoppel should  not apply   Issue-estoppel  is  concerned  with   the   judicial establishment  of  a  proposition of  law  or  fact  between parties.  It depends upon well-known doctrines which control the  relitigation  of  issues which  are  settled  by  prior litigation." The  emphasis  here  again  would  be  seen  to  be  on  the determination of ,criminal liability.  In Marz v. The  Queen (96 C.L.R. 62) the High Court of Australia said "The  Crown is as much precluded by an estoppel by  judgment in criminal proceedings as is a subject in civil proceedings The  laws  which  gives  effect  to  issueestoppel  is   not concerned  with  the  correctness or  incorrectness  of  the finding  which amounts to an estoppel, still less  with  the process  of reasoning by which the finding was reached .  in fact  It  is  enough  that an  issue  or  issues  have  been distinctly  raised  or found.  Once that is done,  then,  so long  as  the  finding stands, if there  be  any  subsequent litigation between the same parties, no allegations  legally inconsistent  with the finding, may be made by one  of  them against the other." Here again it is to be remembered that the principle applies to two criminal proceedings and the proceeding with which we are  now  concerned  is  not  a  criminal  proceeding.    We therefore   hold  that  there  is  no  substance   in   this contention. The petition is dismissed. V.P.S. Petition dismissed. 797