G. Mehrotra, C.J.
1. These two appeals raise common questions and can be disposed, of by one judgment. Both the appeals are against the accrual passed by the Magistrate, First Class, Silchar.
2. Respondent Jamaluddin is the husband Of Musst. Aburunnessa Bibi who is the respondent in the other appeal. Jamaluddin was prosecuted Under Section 14 of the Foreigners Act. The charge against him was that he left India in the year 1950 and returned sometime in 1954 under ,a Pakistan passport. He overstayed in India and thus committed breach of the passport rules. Notice was given to him1 in 1958 by the Deputy Commissioner, Cachar to leave India within sometime specified in the nice. He failed to leave the limits of the Cachar district' within the time specified in the notice. Thereafter he was prosecuted Under Section 14 of the Foreigners Act. The Magistrate has come to the conclusion that on the date when he returned to India in the year 1954 he was not a foreigner within the meaning of the Foreigners Act.
3. Before the amendment of the Foreigners Act, the definition of the word 'foreigner' was given in the Act as follows:
foreigner' means a person who....
(1) is not a natural-born British Subject as defined in Sub-sections (1) and (2) of Section 1 of the British Nationally and Status of Aliens Act, 1914, or
2. has not been granted a certificate of naturalisation as a British subject muter any law for the time being in force in British India, or
3. is not a citizen of India
Section 1(1) of the Act was as follows:
The following persons shall be deemed to be inaturalborn British subjects namely-
(a) any person born within his Majesty's Dominion and allegiance.
According to the definition of the word 'foreigner' as it stood in the year 1954 it cannot be disputed that the respondents will not (be foreigners. The definition of 'foreigner' has now been amended by the amending Act of under which anyone who is not an Indian has been defined as a foreigner. The Magistrate has acquitted the respondents on the ground fiat on the date when the respondents came to India,' they were not foreigners and thus they were not liable to leave India and when they failed to leave India it cannot be said that they committed any breach of the provisions of this Foreigners Act. On that finding the respondents have been acquitted.
4. In appeal it is stated by the counsel for the State that the respondents were prosecuted for breach, of the order issued by the Deputy Commissioner of Cachar Under Section 3(c) or the Foreigners Act and even if on the date when the notice was issued against them any were foreigners within the meaning of the Act the prosecution was valid. That aspect; of the matter does not seem to have been pressed before the Magistrate and we do not think that in this appeal we can allow that point to be raised.
5. The only point which seems to have been pressed before the Magistrate was that the respondents were foreigners and thus they overstayed in India even though they have come on a Pakistan passport.
6. The next point urged is that even if The respondents were citizens lender Article 5 at the commencement of the Constitution as they were born in India, by virtue of the provisions of Article 7 of the Constitution ''hey ceased to be Indian citizens. Article 7 of the Constitution provides that:
Notwithstanding anything in Articles 5 and 6, a person who has after the first day of March, 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 contention is that as the respondents migrated from the territory of India after the first day of March 1947, they will not be citizens under Article 5 of the Constitution.
There are two answers to this contention. Firstly the persons will cease to be Indian citizens by virtue .of Article 7 if they have migrated after the first day of March 1947. There is no evidence on ''he record to show that the respondents migrated to Pakistan, nor was the case fought on that assumption and thus neither the prosecution nor the die fence led any evidence On this question. Moreover when the schema of Articles 5 and 7 is taken together, it must be held that these articles deal with the citizenship at the commencement of the Constitution. Article 7 begins with the words 'Notwithstanding anything in Articles 5 and 6' Article 5 deals with the citizenship at the commencement of the Constitution.
It necessarily follows from this that it anyone had migrated between right first March 1947 and coming in force of the Constitution, on the plain language, Article 7 would have been attracted. But in case of persons who 'are migrated after the coming in force of the Constitution Article 7 would nor be attracted. In any view lot the matter for the purpose of the present case we have already pointed out that it is not necessary to deicide this aspect of the matter.
7. The next question raised by the counsel for the State is that under the Indian Citizenship Act passed in he year 1955 anyone who acquires the citizenship of Pakistan will cease to be an Indian citizen and Under Section 9 of the said Act if any dispute arises as to whether a Person has loss his Indian citizenship or not the Central Government h the proper forum to decide it and the ground shaken by the prosecution is that If the respondent came back to India on a Pakistan passport, prima facie this will be an evidence of the fact that he acquired the citizenship of Pakistan. As laid down in Section U of the Indian Citizenship Act the proper locum to decide this matter is Iota Central Government and at no stage the Central Government decided this matter and held that the respondents acquired the Pakistan citizenship. In fact the respondent Jamaluddiji applied to the Deputy Commissioner for giving him an opportunity to prove before a proper authority that he has (not?) ceased to be an Indian citizen and has (not?) acquired Pakistan citizenship, But before any opportunity was given to him he was prosecuted.
8. It is contended by Mr. Pathak on benait of the State that on the date when the notice was issued calling upon the respondent to quit India, the Central Government prima facie determined that the citizenship of the respondents was lost. We cannot make any such assumption nor was this point pressed before the Magistrate. We accordingly see no reason to interfere kiwi the Order of acquittal. If the Central Government or the authorities still feel that the persons lost their citizenship and have acquired Pakistan citizenship, the Central Government can as well be moved to decide this mailer after giving Ml opportunity to the respondents to power that they have not acquired Pakistan citizenship. But it candy be said that the order of acquittal is erroneous and should be quashed. The appeals are dismissed.
S.K. Dutta, J.
9. I agree.