§72 : 7 é "STATE OF GUJARAT
Y YAKUB IBRAHIM * December 3, 1973
[M. H. Bec anp Y. V. Cuanpracuun, JJ]
itizenship Act, 1955, Section 9(2)—Central Gavt.'s decision ont whether a has es toler citizenship or not—Foreigner’s Act, 1946, S. 14—Fore; sak Order 1958 clause T(iii)—Plea of the accused that without the determination by the Central Government us 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 ujs 9(2) of the Citizenship Act,
The respondent was prosecuted under clause 7(iii) of the Foreigner’s Order, 1958 read with Sec. 14 of the Foreigner's Act, 3946 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, Hg further stated that he bad 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 bas acquired Pakistani citizenship or not, the prosecution under the Foreigner’s Act was mcompetent. The trial Magistrate aequitted 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 cave set up by it namely that the respondent was not an Indian citizen on 26-1-1950.
Quashing the charge and setting aside the acquittal,
HELD : (J) The real and decisive question to be cnsidered and decided was not whether the respondent possessed Indian nationality and citizenship on 26-1-1950 but whether he had fost that naticonatity 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 oo jurisdiction to acquit of convict a person, :
~
(U) 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 of the High Court and those in the special leave petition, we think that the question regarding acquisition of foreign ciuzenship by the respondent was the decisive question. The respondent had himself raised the plea although he gave an impression that the prose cution was inviting a decision on the Jegality of the order of acquittal without abtaining a prior decision of the Centra! Government under Sec. 9(2) of the Citizen ship Act, le was not proper for the prosecuting authorities to have p with a case without the determination of the said question under sec, 9(2) of the Cituenship Act. (577 D]
_ GED In view of the erroneous procedure adopted on behalf of the State in pew sing for a conviction without obtaining a decision from the appropriate authority, quashing of the charge itself is the correct order, This would leave the Stale free to follow the proper procedure under law regarding the acquisition of foreige citizenship by the respondent and then to prosecute the respondent. [577 Fl
State of Andhra Pradesh v. Abdul Khader {1962} | S.C.R. 737, Abdul Sattor v State of Gujarat ALR, 1965 $C. BLO and Ak Py. Union of India (1962) t SCR. TY, Tollowed C. 810 and Akbarkhan y, Union of India {
Kulathiimammu ¥, Sue of Kerala {1966] 3 S.C.R. 706, referred to.
we Appritate Jurispicrton: Criminal Appeal No. 164 of
Appeal by special leave from the jud : der dated the 3rd gment and order date : 4th December, 1969 of the Guj: hay : “minal APC No. 295 of 1966. Jarat High Court in Crimi
GUJARAT y, YAKUB (Beg, J.) 573
A 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 4 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
Cc 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 privisions of clause 7(iii) of Foreigners Order 1948 and thereby committed an offence punishable 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
E come to India in 1955 on a Pakistani 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
F 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 attended school there until
G 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 regret- ted having left India and tried to come back to his home. He alleged that, as‘he was unable 10 come home without a Pakistani passport,
H he had to apply for and get one. The respondent asserted that he was an Inuiau citizen when the Constitution came into force on 26th
January, 1950, and that he had continued to be an Indian citizen there.
- after ashe had never migrated to Pakistan. His explanations about 11—M602Sup.Cl/74 x
574 SUPREME COURT REPORTS [1974] 2 s.c:r.
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 had migrated to Pakistan in 1950, was one of those untrue declarations which had been made only to obtain a passport. Probably he 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 Indjan 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 reccrd a finding cn 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_ vy. The State of Kerala(!) 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 Ist March, 1947, and the commencement of the Constitution. It has to be remembered that Article 7 of the Constitution was held, in Kulathil Manunu’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 statisfied 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 Mammui’s case (supra), to have a wider meaning than change of domicile. Hence, the view of this Court in Smt. Shanno Devi v. Mangal Sain (2) was overruled. It has, however, to be remembered that in Kulaihil Mammmu’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 th: 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.
GUJARAT Y. YAKUB (Beg, J.) 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 <harge 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 himslef 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 -ommenceme:: of the Citizenship Act 1955 acquired the citizenship of another country was to be determined by the Centra! 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 js foreingner in India and so the accused must be convicted of the offence u/s. 14 of the 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 p-oof of his having voluntarily acquired the citizenship of the country before thatdate 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 SUPREME COURT REPORTS [1974] 2 s.c.r.
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 ge 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 Sanuary, 1950, and the commencement of
. the Citizenship Act on 30th December, 1955. This Court has repeatedly 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 arule. When the validity of thatrule 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 modification of the relevant rule would be made. However, that question ig 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 (!); Abdul Sattar v. State of Gujarat (2): and Akbar Khan vy. 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 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”.
“Gy [19627 1 S.CR. 737. (2) ALR. [1965} S.C. 810,
(3) [1962] 1 S.C.R. 779.
GUJARAT v. YAKUB (Beg, J.) ary.
On principle it does not matter whether the qvestion 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 petiod, the proper thing to do for a Court where the question arises is to refuse to adjudicate on that question. Inthe 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 ona 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 coutd 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
578 SUPREME COURT REPORTS {1974] 2 s.c.r.
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 Pakistant 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,