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PETITIONER: STATE OF GUJARAT

       Vs.

RESPONDENT: YAKUB IBRAHIM

DATE OF JUDGMENT03/12/1973

BENCH: BEG, M. HAMEEDULLAH BENCH: BEG, M. HAMEEDULLAH CHANDRACHUD, Y.V.

CITATION:  1974 AIR  645            1974 SCR  (2) 572  1974 SCC  (1) 283

ACT: Citizenship Act, 1955, Section 9(2)-Central Govt.’s decision on whether a person has acquired-foreign citizenship or not- Foreigner’s  Act, 1946, S. 14-Foreigner’s Order 1958  clause 7(iii)-Plea of the accused that without the determination by the  Central  Government  u/s 9(2) of  the  Citizenship  Act proceedings under the Foreigner’s Act incompetent-Court  has no  jurisdiction  either to acquit or  convict  the  accused without  the  prior decision of the Central  Government  u/s 9(2) of the Citizenship Act.,

HEADNOTE: The  respondent  was prosecuted under clause 7(iii)  of  the Foreigner’s Order, 1958 read with Sec. 14 of the Foreigner’s Act, 1946 for over staying in India after the expiration  of the permit.  The respondent had entered India on a Pakistani passport.  At the trial, the respondent produced evidence to show  that he was a citizen of India when  the  Constitution came into force on 26-1-1950 and never migrated to  Pakistan to  obtain  the  citizenship of that  country.   He  further stated that he had to obtain the Pakistani passport  against was volition.  The respondent further urged that without the decision   of  the  Central  Government  u/s  9(2)  of   the Citizenship  Act  as to whether he  has  acquired  Pakistani citizenship  or not, the prosecution under  the  Foreigner’s Act  was  incompetent.  The trial Magistrate  acquitted  the respondent, holding that he had proved that he was an Indian citizen  who  never migrated to Pakistan.   The  High  Court upheld the acquittal as it thought that the prosecution  had not  proved the only case set up by it namely that the  res- pondent was not an Indian citizen on 26-1-1950. Quashing the charge and setting aside the acquittal, HELD  : (1) The real and decisive question to be  considered and decided was not whether the respondent possessed  Indian nationality and citizenship on 26-1-1950 but whether he  had lost  that  nationality  at the time when  he  entered  this country  on Pakistani passport.  Without a decision  of  the Central Government under section 9(2) of the Citizenship Act on that question, the Criminal Court had no jurisdiction  to acquit or convict a person. (II) After having examined the charge framed, the cases  set up  by the two sides, the contentions advanced in the  trial

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court, the grounds of appeal of the High Court and those  in the  special  leave  petition, we think  that  the  question regarding   acquisition  of  foreign  citizenship   by   the respondent  was the decisive question.  The  respondent  had himself raised the plea although he gave an impression  that the  prosecution was inviting a decision on the legality  of the order of acquittal without obtaining a prior decision of the  Central Government under Sec. 9(2) of  the  Citizenship Act.   It was not proper for the prosecuting authorities  to have proceeded with a case without the determination of  the said  question under sec. 9(2) of the Citizenship Act.  [577 D] (III)     In  view.  of the erroneous procedure  adopted  on behalf  of the State in pressing for a  conviction   without obtaining   a  decision  from  the  appropriate   authority, quashing  of the charge itself is the correct  order.   This would  leave the State free to follow the  proper  procedure under  law regarding the acquisition of foreign  citizenship by the respondent and then to prosecute the respondent. (577 H) State of Andhra Pradesh v. Abdul Khader [1962] 1 S.C.R. 737, Abdul  Sattar v. State of Gujarat A.I.R. 1965 S. C. 810  and Akbarkhan v. Union of India [1962] 1 S.C.R. 779, followed. Kulathilmammu  v.  State  of Kerala  [1966]  3  S.C.R.  706, referred to.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 164 of 1970. Appeal  by special leave from the Judgment and  order  dated the  3rd/  4th December, 1969 of the Gujarat High  Court  in Criminal Appeal No. 295 of 1966. 573 R.   H. Dhebar and S. P. Nayar, for the appellant. A.   S.  Qureshi,  Vimal  Dave and  Kailash  Mehta  for  the respondent. The Judgment of the Court was delivered by BEG,  J.-This  is an appeal, by special leave,  against  the acquittal  of the appellant, from a charge framed  on  21-9- 1967 as follows:               "That  you on or about the 31st day  of  March               1967  at about 9.30 p.m. were found  in  State               Transport  Corporation Workshop at  Naroda  in               Ahmedabad, and you are a foreigner and you had               come from Pakistan and you had been  permitted               to stay in India till 20th September, 1958, by               Assistant  Secretary  to  the  Government   of               Bombay  and did not depart from  India  before               expiring  of that permit issued to you by  No.               19904  dated  6-12-1967 before the  date  20th               September  1958  and  remained  in  India  and               thereby  you  contravened  the  previsions  of               clause  7(iii)  of Foreigners Order  1948  and                             thereby  committed an offence punishab le  under               Section  14 of Foreigners Act 1946 and  within               my cognizance". The above mentioned charge was supported by the statement of Mahmadmiya,  P.  W.  2,  Sub  Inspector,  Special  Emergency Branch, Ahmedabad, showing that the appellant was working in Baroda Central State Transport Workshop when he was arrested as a consequence of the information that he was a  Pakistani national  who  had  come to India in  1955  on  a  Pakistani

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passport.   The accused had produced his Pakistani  passport (Ex.  11)  dated 8th September, 1955.  The  prosecution  had also  relied  upon  an application for a visa  made  by  the accused  to the High Commissioner for India in  Pakistan  on 10th October, 1955, in which he had, inter alia, stated that he   had   migrated  from  India  to   Pakistan   in   1950. Undoubtedly,  the prosecution was handicapped  in  producing evidence  to show when and how and with what  intention  the appellant had gone to Pakistan.  It could only show how  and when and on what passport he returned to this country. The  accused-respondent  had produced credible  evidence  to prove:  that,  he  was born at Dhandhuka  in  the  State  of Gujarat on 15th May, 1936; that, he was living at  Dhandhuka and  attendee  school  there until 1952  when  he  moved  to Ahmedabad with his father; and, that he had gone to Pakistan in  a state of anger while he was a minor, after  a  quarrel with  his father who had driven him out of his  house.   The respondent denied that he had the intention of settling down in  Pakistan.   He asserted that within six  months  of  his arrival in Pakistan he regretted having left India and tried to come back to his home.  He alleged that, as he was unable to  come home without a Pakistani passport, he had to  apply for  and  get one.  The respondent asserted that he  was  an Indian citizen when the Constitution came into force on 26th January,  1950,  and that he had continued to be  an  Indian citizen  thereafter  as he had never migrated  to  Pakistan. His explanations about 1--M602Sup.CI/74 574 the  passport and the visa application implied that  he  had obtained the passport by making false declarations and  that the statement in the visa application, that he bad  migrated to  Pakistan in 1950, was one of those  untrue  declarations which had been made only to obtain a passPort.  Probably lie had  to show under the law in Pakistan that he  had  settled down  in  Pakistan and become a  Pakistani  national  before obtaining a Pakistani passport. The  judicial Magistrate had acquitted the respondent  after examining the cases set up by the two sides and holding that the respondent had proved that he was an Indian citizen  who had  never,  in  fact migrated to Pakistan.   In  an  appeal against  the acquittal the High Court of Gujarat had  upheld the  acquittal and confirmed the finding that the  appellant was an Indian citizen when the Constitution came into  force on 26th January, 1950.  It had also held that the  appellant was  a  minor  when he visited Pakistan.  It  had  found  it unnecessary to record a finding en the question whether  the appellant’s  visit to Pakistan could be held to be one  made under  compulsion  or for a specific purpose so as  to  come within  the  class of those exceptional cases  mentioned  in Kulathil  Mammu.  v.  The State of Kerala  (1)  in  which  a "migration"  would not take place even if the wider test  of the  term  migration were adopted.  That  wider  test  would apply  to  those  who had gone to  Pakistan  in  the  period between  1st  March,  1947,  and  the  commencement  of  the Constitution, It has to be remembered that Article 7 of  the Constitution was held, in Kulathil Mammut’s case (supra), to contain  an exception to the operation of Article 5  of  the Constitution for conferring citizenship of India on  persons who, at the commencement of the Constitution, had  satisfied the test of Indian domicile. The  general  principle  laid down by  Article  5  was  that citizenship  followed  domicile at the commencement  of  the Constitution.   But.  the  "migration"  as  contemplated  by Article  7  was held, in Kulathil Mammu’s case  (supra),  to

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have  a wider meaning than change of domicile.   Hence,  the view of this Court in Smt.  Shanno Devi v. Managin Sain  (2) was  overruled.  It has, however, to be remembered  that  in Kulathil  Mammu’s case (supra), where the  alleged  migrant, who  was also a minor at the time of the alleged  migration, had   gone  to  Karachi  in  1948  which  was   before   the commencement of the Constitution. in the case before us, the finding of the Trial Court as well as the High Court, on the evidence  before  them  was that the appellant  had.  as  he asserted,  gone to Pakistan in 1953-54 which was  after  the commencement  of the Constitution.  Hence, the case  of  the respondent  could  not  fall within  the  classes  to  which Article  7 was especially intended to apply.  Article 7  had necessarily  to  be  read  with Articles  5  and  6  of  the Constitution and not in isolation. ’The High Court had come to the conclusion that as the  only case  set up by the prosecution was that the respondent  had migrated before the 26th January. 1950, it need not consider and decide the question (1) [1966] 3 S.C.R. 706. (2) [1961] 1 S.C.R. 576.  575 whether  he had gone to Pakistan after 26th  January,  1950, and thus had voluntarily acquired Pakistani nationality  and lost  Indian  citizenship.  If, as it rightly held,  it  had been proved that the respondent went to Pakistan after  26th January,  1950,  Article 5 of the Constitution  would  still operate  in his favour.  The High Court rightly pointed  out that, as the respondent was an Indian citizen on the date of the  commencement  of  the  Constitution,  entitled  to  the benefit  of  article  5 of  the  Constitution,  the  further question  whether he had lost Indian citizenship after  that date or not, could only be decided by the Central Government as laid down in section 9 of the Indian Citizenship Act.  It acquitted  the  respondent  because  it  thought  that   the prosecution  had not proved the only case set up by it.   We have,  therefore, to examine the charge framed  against  the respondent  so as to determine whether the view of the  High Court that the only question which need be considered by  it was  whether  the respondent was an Indian citizen  on  26th January, 1950, was correct. We find, from the charge set out above, that the prosecution case   was  not  confined  to  the  determination   of   the citizenship   of   the  respondent  at  the  time   of   the commencement  of  the Constitution.  We also find  that  the respondent  had himself raised the question whether, on  the facts set up by him, the prosecution could proceed at all in view  of section 9 of the Citizenship Act.  The Trial  Court had observed               "The  lawyer of the accused argued that  under               Section  9  of the Citizenship  Act  1955  the               question whether any citizen of India had  any               time between the 26th day of January, 1950 and               the  commencement of the Citizenship Act  1955               acquired  the citizenship of  another  country               was   to   be  determined   by   the   Central               Government.  A court should not decide whether               an Indian citizen had acquired the citizenship               of  another  country.  The  police  prosecutor               argued  that  as  the  accused  had  gone   to               Pakistan  and he obtained  Pakistani  Passport               the  accused  must be held to be  national  of               Pakistan  and so a citizen of Pakistan and  so               is foreigner in India and so the accused  must               be  convicted  of the offence u/s. 14  of  the

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             Foreigners’  Act read with clause  7(3),  rule               (iii)  of Foreigners’ Order 1948.   The  Court               had jurisdiction to decide whether the accused               is  a foreigner. if the accused wanted to  get               it  decided that he is yet citizen  of  India,               the  accused  should  apply  to  the   Central               Government and get decision under section 9(2)               of  the Citizenship Act 1955.  The clause  (3)               of Schedule III of the Citizenship Rules  1956               provides that the fact that a citizen of India               has obtained on any date a passport from  the,               Government  of  any  other  country  shall  be               conclusive  proof  of his  having  voluntarily               acquired the citizenship of the country before               that  date.   As this accused  has  come  from               Pakistan  to  India,  the  Police   Prosecutor               argued, the accused should be convicted of the               offence  u/s. 14 of Foreigners’ Act read  with               clause 7(3) (iii) of Foreigner’s order". 576 We  also  find  from  the  grounds  of  appeal  against  the acquittal  of the, respondent, the  appellant’s  application for  certificate of fitness for appeal to this  Court  under Article 134 of the Constitution, and from the special  leave petition  under  Article  136 of the  Constitution  in  this Court, that the prosecution had been inviting a decision  on the  question whether an order of acquittal could be  passed without deciding a question which fell within the purview of Section 9 of the Indian Citizenship Act. It  was not proper for the prosecuting authorities  to  have proceeded  with the case against the respondent, when,  upon the facts set up by the respondent, it became clear that the respondent  could not be prosecuted or convicted  without  a determination under Section 9 of the Citizenship Act,  1955, that he had voluntarily acquired the citizenship of Pakistan between  26th  January, 1950, and the  commencement  of  the Citizenship Act on 30th December, 1955.  This Court has  re- peatedly  laid  down that if such a question arises  in  the course  of  a  trial, it must be left for  decision  by  the appropriate authorities.  It may be that the rules framed by the  Central Government under Section 30, sub. s (2) of  the Citizenship Rules, under Section 18 of the Citizenship  Act, had  provided  that the passport shall be  conclusive  proof that its holder has acquired the citizenship of the  country whose  passport he holds.  We, however, do not know  whether the  Central Government has modified such a rule.  When  the validity  of  that rule came up for consideration  before  a Bench of seven judges of this Court, an assurance was  given on  behalf of the Central Government that a  suitable  modi- fication of the relevant rule would be made.  However,  that question  is not under consideration before us now.  All  we need   consider  here  is  whether  the  acquittal  of   the respondent  was,  in  the  circumstances  disclosed   above, justified. in  view of Section 9(2) of the Citizenship Act,  which  has been subject-matter of several decisions of this Court  (See : State of Andhra Pradesh v. Abdul Khader (1); Abdul  Sattar v.  State of Gujarat (2): and Akbar Khan v. Union  of  India (3), the question whether a person voluntarily acquired  the citizenship  of Pakistan during the specified period,  could ’only  be  determined by the Central Government.   In  Akbar Khan’s  case  (Supra) it was observed by this.   Court:  (at page 782)               "If it was found that the appellants had  been               on  January  26, 1950, Indian  citizens,  then

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             only  the question whether they had  renounced               that   citizenship  and  acquired  a   foreign               citizenship  would arise.  That  question  the               Courts  cannot decide.  The proper  thing  for               the  court  would then have been to  stay  the               suit  till the Central Government decided  the               question whether the appellants had  renounced               their   Indian  citizenship  and  acquired   a               foreign  citizenship and then dispose  of  the               rest  of  the  suit  in  such  manner  as  the               decision   of  the  Central   Government   may               justify’ (1) [1962] 1 S.C.R. 737.    (2) A.I.R. [1965] S.C. 810 (3)  [1962] 1 S.C.R. 779. 577 On  principle it does not matter whether the question  which can  only  be  determined by the  Central  Government  under Section  9 of the Citizenship Act arises in a civil suit  or in  a  criminal  prosecution.  If the  real  question  which arises  for  determination is whether a person, who  was  an Indian  citizen when the Constitution came into  force,  had acquired  the citizenship of another country or  not  during the  specified  period, the proper thing to do for  a  Court where the question arises is to refuse to adjudicate on that question.   In the case before us it appears that the  issue was  raised but not decided either in the Trial Court or  in the  High  Court.  Indeed, the judgment of  the  High  Court shows that probably for this very reason the prosecution had tried  to  obtain the conviction of the  respondent  on  the ground that he had acquired Pakistani citizenship before the commencement  of the Constitution.  That question  had  been rightly decided against the appellant. on that short  ground the acquittal of the appellant could have been upheld if the prosecution case was confined to that question.  But,  after having  examined the charge framed, the cases set up by  the two sides, the contentions advanced in the Trial Court,  the grounds of appeal to the High Court, and those given in  the special  leave  petition  in this Court,  we  think  that  a question  of Jurisdiction of the criminal courts  to  record either  a  conviction  or  acquittal  in  the  case  of  the respondent  had  properly  arisen.   Indeed,  the  real  and decisive  question  to  be considered and  decided  was  not whether  the  respondent possessed  Indian  nationality  and citizenship  on 26th January, 1950, but whether he had  lost that nationality at the time when he entered this country on a  Pakistani passport.  The respondent has been charged  for overstaying  contrary to the terms of the permit  issued  on 6th  December, 1957, by which he was allowed to  stay  until 20th  December,  1958.   Therefore, it was  clear  that  the decisive  question which the Courts should  have  considered was whether, at the time when permission was given, and when the  alleged overstay, contrary to the provisions of  clause 7(iii)  of  the  Foreigners’ Order, 1958,  took  place,  the respondent  was  a  foreigner.  Without  a  decision  of  an appropriate authority on that question neither an  acquittal nor  a conviction could be recorded.  As no finding  can  be given  by  criminal or civil Courts, in a case in  which  an issue  triable  exclusively by the  Central  Government  has properly arisen, the question of burden of proof, dealt with in Section 9 of the Foreigners’ Act, 1946, is immaterial. However,  in  view  of the erroneous  procedure  adopted  on behalf of the State in pressing for a conviction when it was clear  that  the  charge could not succeed  at  all  without obtaining  a  decision from the  appropriate  authority,  we think that the correct order to pass in this case is

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578 not  just  to stay further proceedings  after  quashing  the acquittal  so  as to await the decision of  the  appropriate authority but to quash the charge itself so that the accused may  be  discharged.   This would leave the  State  free  to prosecute the respondent if and when a decision is  obtained against  him  from the appropriate authority  in  accordance with the law.  That authority will no doubt consider all the relevant   facts,   including  the  total  period   of   the respondent’s stay in this country as compared with the short period  of  his stay in Pakistan and  the  circumstances  in which  the  respondent alleges having obtained  a  Pakistani passport and made a false statement in the visa  application relied upon by the prosecution. The  result is that we allow this appeal and set  aside  the acquittal  of  the  respondent.  We also  quash  the  charge framed   against  the  respondent  and  order  that  he   be discharged. S.B.W.                             Appeal allowed. 579