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PETITIONER: STATE OF U. P.

       Vs.

RESPONDENT: RAHMATULLAH

DATE OF JUDGMENT23/04/1971

BENCH: DUA, I.D. BENCH: DUA, I.D. SIKRI, S.M. (CJ) REDDY, P. JAGANMOHAN

CITATION:  1971 AIR 1382            1971 SCR  494  1971 SCC  (2) 113

ACT: Foreigners  Act  (31 of 1946),  s.  14-Prosecution  under-No determination by Central Government of accused’s nationality under Citizenship Act, 1955, before prosecution- Legality of prosecution.

HEADNOTE: The respondent was a citizen of India at the commencement of the  Constitution  in 1950.  He entered India  on  April  1, 1955,  with a Pakistani passport dated March 15,  1955,  and overstayed  in  India beyond the permitted period.   He  was arrested in 1963 and was charged with an offence under s. 14 of  the Foreigners Act, and convicted.  While  the  criminal proceedings  were pending, the Central Government, under  s. 9(2)  of  the  Citizenship Act, 1955, read  with  r.  30  of Citizenship  Rules,  1956, determined on November  5,  1964, that  the  respondent had acquired citizenship  of  Pakistan after January 26, 1950, and before March 15, 1955.  The High Court set aside the conviction. On appeal to this Court, HELD:     (1)  The respondent was not a  ’foreigner’  within the  meaning of the Foreigners Act before its  amendment  in 1957. [500 G-H] (2)  Having  been a citizen of India at the commencement  of the  Constitution  and  not  being  a  foreigner  under  the Foreigners  Act at the date of his entry, till  the  Central Government determined the question of the respondent  having acquired  Pakistan  nationality  and  thereby  lost   Indian nationality,  he could not be treated as a foreigner and  no penal action could be taken against him. [497 G; 501’ A-B] (3)  The  order of the Central Government dated November  5, 1964  determining  that the respondent was a  Pakistani  was final, but the determination by the Central Government could not have the effect of retrospectively rendering his stay in India before that date a penal offence.  It was not as if he was given any directions after November 5, 1964, which  were disobeyed by him entailing his prosecution. [501 C-E]

JUDGMENT:

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CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 167 of 1968. Appeal from the judgment and order dated January 18, 1968 of the  Allahabad High Court in Criminal Revision No.  1482  of 1966. O. P. Rana, for the appellant. Bashir Ahmed and S. Shaukat Hussain, for the respondent. The Judgment of the Court was delivered by Dua  J.-The  State  of U.P. has appealed to  this  Court  on certificate  of fitness granted by the Allahabad High  Court from 495 that  court’s order dated January 18, 1968,  acquitting  the respondent  of  an  offence punishable under s.  14  of  the Foreigners  Act  (Act  No. 31 of  1946).   This  appeal  was originally heard by us on January 11 & 14, 1971, when it was considered desirable to send for the original records of the case  from  the  courts below and also to call  for  the  Me relating to the inquiry held by the Central Government under s. 9(2) of the Citizenship Act (Act No. 57 of 1955) into the question  of the acquisition of citizenship of  Pakistan  by the respondent. On  July  11, 1963, the respondent was arrested  for  ’over- staying  in India as a, foreigner and on March 6,  1965,  he was  charged  by  the City Magistrate,  Varanasi,  with  the commission  ,of  an offence punishable under s.  14  of  the Foreigners Act (Act No. 31 of 1946).  The charge reads :               "I,  D. S. Sharma, City Magistrate,  Varanasi,               hereby charge you Rahmatullah as follows :-               That  you  being a Pakistani  Citizen  entered               into India on 1-4-55 on Pakistani Passport No.               283772 dated 15-3-55 and Indian visa No. 16326               Category   C  dated  22-3-55  and   got   your               extension to stay in India up to 25-5-56               after which date you are overstaying in  India               illegally without any passport and visa :               and  thereby committed an  offence  punishable               u/s 14 of Foreigners Act within my cognizance,               and  hereby  I direct you to be tried  on  the               said charge by me." According to the prosecution case against the respondent  as put in the Trial Court, he was a Pakistani national and  had on  April  1, 1955, entered India on  a  Pakistani  passport dated  March  15, 1955, and an Indian Visa dated  March  22, 1955,  obtained  by him as a Pakistani  national,  but  even after the expiry of the permitted period he was  overstaying in  India without a valid passport or visa).   The  original visa,  it is not disputed, expired on June 21, 1955, but  it was extended thrice, the last extension being valid only  up to May 25, 1956.  Thereafter the respondent went underground and  has  since been residing in India  illegally.   He  was treated  after  several years and was arrested on  July  11, 1963.  The respondent pleaded in defence that though he  had entered India on a Pakistani passport he was not a Pakistani national.   On  the  contrary he claimed  to  be  an  Indian citizen and therefore rightfully living in India.  According to  him he had been born in India of Indian parents in  1932 and was an Indian citizen under the Constitution. 496 During  the pendency of the present criminal proceedings  an inquiry was made by the Central Government under s. 9(2)  of the  Citizenship  Act  read with r. 30  of  the  Citizenship Rules,  1956,  and by means of an order  dated  November  5, 1964,  it  was determined that the respondent  had  acquired citizenship  of Pakistan after January 26, 1950, and  before

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March 15, 1955.  March 15, 1955 was apparently fixed because on  that  date  the respondent  had  secured  his  Pakistani passport.   In  that inquiry the respondent was  given  full opportunity  of adducing proof in support of his plea.   The respondent was informed of the determination of the  Central Government on March 29, 1965 in the Trial Court. The  City Magistrate, Varanasi, trying the case came to  the conclusion  that  the  respondent had  voluntarily  gone  to Pakistan  and had stayed there for 8 or 9 months.  The  fact that he had obtained a Pakistani passport was in the opinion of that court an indication of his intention to have gone to that  country  with  the  object  of  becoming  a  Pakistani national.  The argument that the determination in regard  to the  respondent’s  citizenship  was  made  by  the   Central Government after the commencement of the present proceedings was  considered by the Trial Court to be irrelevant  because the determination by the Central Government was immune  from challenge  and  whether  it was made  before  or  after  the framing  of the charge was immaterial.  The  respondent  was held  to  be a Pakistani national and as it was  not  denied that  he had entered India on a Pakistani passport and  also that  on  the  expiry of the period for which  he  had  been permitted to stay in India including the extended period, he had  stayed  on  in this  country  without  obtaining  valid permit,  he was convicted of an offence under s. 14  of  the Foreigners  Act.  He was sentenced to rigorous  imprisonment for 18 months and to pay a fine of Rs. 200/- and in  default of  payment of fine to rigorous imprisonment for  a  further period of three months. The Sessions Judge dismissed the respondent’s appeal holding that  the charge had been framed against him several  months after  the determination by the Central Government  that  he was a Pakistani national.  According to that court the order of the Central Government was dated November 5, 1964, and it was communicated by the Sahayak Sachiv, U. P. to the  Senior Superintendent of Police, Varanasi, on December 28, 1964. On  revision the High Court disagreed with the view  of  the courts  below.  According to the High Court  the  respondent was  not  a foreigner when he entered India  though  he  had obtained 497 a Pakistani passport.  Having not entered as a foreigner the respondent’s  case  was  held to be outside  para-7  of  the Foreigners  Order, 1948, made under S. 3 of  the  Foreigners Act.   The High Court held the respondent to be a  foreigner when  he  was prosecuted for an offence under S. 14  of  the Foreigners  Act.   But in its opinion that  fact  could  not attract para-7 of the Foreigners Order, 1948 made under S. 3 of  the Foreigners Act.  On this reasoning the  respondent’s conviction was set aside and he was acquitted. In this Court, to begin with, it was argued on behalf of the State  that  S.  2(a)  of  the  Foreigners  Act  defines   a "foreigner" to mean a person who is not a citizen of  India. If,  therefore,  the respondent is not a citizen  of  India, then being a foreigner his prosecution and conviction  under S. 14 of the Foreigners Act was unassailable, contended Shri Rana.  The order of the High Court acquitting the respondent was, therefore, contrary to law, he added.  This  submission is  misconceived.   The definition of the  word  "foreigner" relied  upon by the counsel was substituted for the  earlier one  by the Foreigners Law (Amendment Act 11 of  1957)  with effect  from  January  19,  1957.   Quite  clearly  the  new definition is of no assistance in determining the status  of the respondent at the time of his entry into India in  1955. The word "foreigner" according to the definition as in force

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in  1955  meant,  a person who (i)  is  not  a  natural-born British  subject as defined in sub-sections (1) and  (2)  of section  1 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 Jaw  for  the time  being in force in India, or (iii) is not a citizen  of India.  The Citizenship Act, 1955, having been published  in the  Gazette of India on December 30, 1955, was also not  in force  at  the time when the respondent entered  India.   We may,  therefore,  turn  to the Constitution to  see  if  the respondent  was  a  citizen  of India at  the  time  of  the commencement  of the Constitution.  Clause (a) of Article  5 clearly  covers the case of the respondent who was  born  in the  territory  of  India,  and had  his  domicile  in  this territory at the commencement of the Constitution.  Being  a citizen of India at the commencement of the Constitution  in 1950, unless he lost his citizenship under some law  between the  commencement  of the Constitution and  his  entry  into India in 1955, the respondent would continue to be an Indian citizen till such entry.  Even on behalf of the appellant no serious  attempt  was made to show that the  respondent  had lost  his Indian citizenship in any other manner  except  on the basis of his having obtained a Pakistani passport and on the  basis  of  the determination of  the  question  of  his citizenship  by the Central Government on November 5,  1964. Indeed  after  some faint argument the  appellant’s  learned counsel based his case exclusively on the determination 32-1 S. C. India/71 498 by  the  Central  Government,  and in  our  opinion  on  the existing record rightly so.  According to his submission the determination  made by the Central Government under S.  9(2) of the Citizenship Act is final and since the respondent has been  held to have acquired citizenship of  Pakistan  before March 15, 1955, his entry into India after that date and his subsequent  continued stay in this country after the  expiry of  the extended period on May 22, 1955, would amount to  an offence punishable under S. 14 of the Foreigners Act. As  will presently be shown the real question  which  arises for  our decision lies in a short compass and  the  relevant facts  essential for the decision are no longer in  dispute. When  the respondent entered India on April 1, 1955, he  was in possession of a Pakistani passport and a visa to which no objection  was taken by the Indian authorities.  He did  not enter  India  clandestinely, and he is not being  tried  for having  entered India in violation of any law.   Indeed  his visa  was, admittedly extended by the appropriate  authority up to May 22, 1965.  As he was clearly a citizen of India at the commencement of the Constitution and the question  arose whether  he  had  lost Indian  citizenship  thereafter,  the Central  Government  had  to determine under  S.  9  of  the Citizenship Act the question of the acquisition of  Pakistan nationality by the respondent.  This Court in Government  of Andhra  Pradesh v. Syed Mohd.  Khano after referring to  its earlier  decision in lzhar Ahmad Khan v. Union  of  India(1) made the following observation :               "Indeed, it is clear that in the course of the               judgement, this Court has emphasised the  fact               that  the question as to whether a person  has               lost  his citizenship of this country and  has               acquired the citizenship of a foreign  country               has to be tried by the Central Government  and               it  is only after the Central  Government  has               decided  the point that the  State  Government               can  deal with the person as a foreigner.   It

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             may  be  that  if a passport  from  a  foreign               Government  is obtained by a citizen  and  the               case  falls  under  the  impugned  Rule,   the               conclusion  may follow that he  has  "acquired               the citizenship of the foreign country"-,  but               that  conclusion  can  be drawn  only  by  the               appropriate authority authorised under the Act               to  enquire  into  the  question.   Therefore,               there  is  no doubt that in  all  cases  where               action is proposed to be taken against persons               residing  in this country on the  ground  that               they  have  acquired  the  citizenship  of   a               foreign State               (2)   [1962] Supp. 3 S. C. R. 235.               (1) [1962] Supp. 3 S. C. R. 288.                499               and  have lost in consequence the  citizenship               of this country, it is essential that question               should  be  first considered  by  the  Central               Government.  In dealing with the question, the               Central   Government  would   undoubtedly   be               entitled  to give effect to the impugned R.  3               in  Sch.   III  and deal with  the  matter  in               accordance  with  the  other  relevant   Rules               framed  under  the Act.  The decision  of  the               Central  Government  about the status  of  the               person  is  the  basis on  which  any  further               action can be taken against him." In  that  case an argument was raised on  the  authority  of lzhar Ahmad Khan’s case(1) that as soon as a person acquired a  passport  from a foreign Government  his  citizenship  of India automatically came to an end, but it was repelled. in  Shuja-Ud-Din v. The Union of India and  Another(2)  this pondent  there  was born in India in 1924 and had  lived  in this ’Country all along tiff about the end of 1954.  At  the end  of 1954 or the beginning of 1955 he 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 this  country  upto April 1955.  He applied to  the  Central Government  for extension of the time allowed by  the  visa, but there was no material to show what orders, if any,  were made  on it.  The respondent having stayed in  this  country beyond the time specified in the visa, on September 3,  1957 he  was  served  with  an order  under  s.  3(2)(c)  of  the Foreigners  Act,  requiring  him to  leave  India.   On  his failure to comply with this order he was prosecuted under s. 14  of the Foreigners Act.  His defence was that he  was  an Indian  national.   The Magistrate trying him  rejected  his defence  and  convicted  him holding that  he  had  disowned Indian nationality by obtaining a Pakistan passport and that by refusing to extend the time fixed by the visa the Central Government  had decided that the respondent was a  foreigner under  s. 8 of the Foreigners Act and that such  a  decision was  final.   He was convicted by the Trial  Court  and  the conviction was upheld by the Sessions Judge.  The High Court in revision set aside his conviction.  On appeal this  Court held that neither the Magistrate nor the Sessions Judge  was competent  to  come  to  a  finding  of  his  own  that  the respondent, an Indian national, had disowned his nationality and  acquired Pakistan nationality for under s. 9(2) of  the Citizenship  Act  that decision could only be  made  by  the prescribed   authority.   The  respondent  in   that   case, according to this Court, had become an Indian citizen  under Art. 5(a) of. the Constitution when it

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(1) [1962] Supp. 3 S. C. R. 233 (2) [1962] 1 S., C. R. 737.    500 came into force and there being no detention by the  Central Government that he had lost his nationality thereafter.  the order of the High Court acquitting him was upheld. in  Shuja-Ud-Din v. The Union of India and Another (1)  this Court  speaking through Gajendragadkar, J. as he  then  was, said:               "it  is now well settled that the question  as               to whether a person who was a citizen of  this               country  on  January 26, 1950,  has  lost  his               citizenship  thereafter, has to be  determined               under  the  provisions  of section  9  of  the               Citizenship  Act,  1955 (No.  LVII  of  1955).               There is also no doubt that this question  has               to  be  decided by the Central  Government  as               provided by Rule 30 of the Rules framed  under               the Citizenship Act in 1956.  The validity  of               section  9 as well as of Rule 30 has been  up-               held by this Court in the case of Izhar  Ahmad               Khan  and Ors. v. Union of India and Ors.   It               has also been held by this Court in The  State               of Madhya Pradesh v. Peer Mohd. and Anr. (Crl.               Appeal  No.  12 of 1961 decided on  Sept.  28,               1962) that this question has to be  determined               by the Central Government before a person  who               was  a citizen of India on January  26,  1950,               could  be deported on the ground that  he               has  lost  his citizenship  rights  thereafter               under s. 9 of the Citizenship Act.  Unless the               Central Government decides this question, such               a person cannot be treated as a foreigner  and               cannot  be  deported from the  territories  of               India." In  Abdul  Sattar  Haji  Ibrahim  Patel  v.  The  State   of Gujarat(2),  Gajendragadkar, C. J., speaking for a bench  of five  Judges  approved the decisions in the cases  of  Izhar Ahmed  Khan(3) and Syed Mohd.  Khan(4), it being  emphasized that the decision of the Government of India is a  condition precedent  to the prosecution by the State of any person  on the basis that he has lost his citizenship of India and  has acquired  that of a foreign country.  That an inquiry  under s. 9 of the Citizenship Act can only be held by the  Central Government was again reaffirmed by this Court in Mohd.  Ayub Khan v. Commissioner of Police, Madras (5). In view of these decisions it seems to us to be obvious that till  the Central Government determined the question of  the respondent  having  acquired Pakistan  nationality  and  had thereby (1)  C.  A. No. 294 of 1962 decided on Oct. 30, 1962. (2)  Cr.  A. No. 153 of 1961 decided on Feb. 17,1964. (3)  [1962] Supp. 3 S. C. R.235. (4)  [1962] SUPP. 3 S. C. R. 288. (5)  [1965] 2 S. C. R. 884. 501 lost  Indian  nationality,  he could not  be  treated  as  a foreigner and no penal action could be taken against him  on the  basis of his status as a foreigner, being  national  of Pakistan.  It is not the appellant’s case-before us that any directions under the law governing foreigners were given  to the respondent after November 5, 1964, which were  disobeyed entailing his prosecution, and indeed it is admitted that he was  not  even  informed  of the  decision  of  the  Central Government till March 29, 1965.  It is also noteworthy  that

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at  the  time  when the Central  Government  determined  his nationality  he  was  being tried in  this  country  by  the criminal  court after having been arrested and  bailed  out, and he was not free to leave this country for proceeding to Pakistan.  In the background of these facts it appears to us that the wide charge as framed against him was  misconceived and he could not be convicted of overstaying in this country at  least till he was duly found to be a Pakistani  national and  to have ceased to be an Indian citizen.  The  order  of the Central Government is clearly final, and it has remained unchallenged by the respondent even after he was informed of this order on March 29, 1965.  We have seen the  proceedings of  the Central Government and we find that  the  respondent had  been given full opportunity of putting forth his  case. The  binding  nature of that order was not,  and  indeed  it could  not be, questioned before us.  The  determination  by the  Central  Government  in this case could  not  have  the effect  of retrospectively rendering a penal offence an  act which  was  not  so  at the time  of  its  commission.   The respondent even though held to be a Pakistani, and therefore a  foreigner,  before the charge was framed against  him  is entitled to the protection of our laws. As a result of the foregoing discussion, the High Court  was in  our  opinion  right in setting  aside  the  respondent’s conviction on the charge framed.  It will of course be  open to  the  Central  Government to take  such  suitable  action against the respondent under the Foreigners Act or under any other  provision of the law which may be applicable to  him, for the purpose of either deporting him or otherwise dealing with  him  as is thought fit.  This  appeal,  however,  must fail. Y.P.S.                     Appeal dismissed. 502