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Abdul Rahim Ismail C. Rahimtullah Vs. the State of Bombay - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Case NumberCriminal Revn. Appln. No. 278 of 1956
Judge
Reported inAIR1958Bom115; (1957)59BOMLR857; ILR1958Bom205
ActsPassport Act, 1920 - Sections 2, 3 and 3(2); Passport Rules, 1949 - Rules 3, 4 and 6; Constitution of India - Article 19
AppellantAbdul Rahim Ismail C. Rahimtullah
RespondentThe State of Bombay
Appellant AdvocateR.P. Bhatt, Adv.
Respondent AdvocateV.H. Gumaste, Additional Assistant Government Pleader
Excerpt:
indian passport act (xxxiv of 1920), sections 2, 3, 4 - indian passport rules, 1949, rules 6(a), 3, 4--applicability of act and rules to indian citizens.;the indian passport act, 1920, and the rules framed thereunder apply to the citizens of india. therefore, an entry into india by a citizen of india without u valid passport is an infringement of rule 3 of the indian passport rules, 1949, made under section 3 of the act, and is punishable under rule 6 of the said rules.;joyce v. director of public prosections [1946] a.c. 347 v.g. row v. (state of madras [1954] a.i.r. mad. 240 and kbrahim vazir maikil v. the, state, of bombay [1954] s.c.r. 933 referred to. - section 31(4) (since repealed) :[tarun chatterjee & h.l.dattu, jj] jurisdiction of high court - respondent, a government company,..........returns to india.7. we are, therefore, of the opinion that;the passport act and the rules framed thereunder apply to indian citizens also. as theapplicant has admittedly entered india withoutpossessing a valid passport, he is guilty of theoffence punishable under rule 6 of the indianpassport rules. the applicant was, therefore,rightly convicted. having regard to thecircumstances of this case, we reduce the fineimposed on the application to rs. 25/-. excessfine, if any, paid by the applicant should berefunded.8. revision dismissed.
Judgment:

Chainani, J.

1. The applicant has been convicted under Rule 6 (a) of the Indian Passport Rules for having entered India without a valid passport as required by Rule 3 of the Rules made under Section 3 of the Indian Passport Act. The learned Magistrate has found that the applicant is a citizen of India. This finding is not challenge ed in this revision application. The only point, which arises for decision and which has been argued before us, is whether the Passport Act and the Rules framed thereunder apply to the citizens of India. The preamble of the Act is as follows :

'Whereas it is expedient to take power to require passports of persons entering India;.....'

The word 'passport' is defined in Section 2 as meaning a passport for the time being in force issued or renewed by the prescribed authority, and satisfying the conditions prescribed relating to the class of passports to which it belongs. Section 3 empowers the Central Government to make rules requiring that the persons entering India shall be in possession of passports, and for all matters ancillary or incidental to that purpose. Sub-section (2) of Section 3 states that without prejudice to the generality of the foregoing power, such rules may

'(a) prohibit the entry into India or any part thereof of any person, who has not in the possession a passport issued to him; and

(c) provide for the exemption, either absolutely or on any condition, of any person or class of persons from any provision of such rules.'

2. The words used throughout are 'person' and 'persons', suggesting that the Act was intended to apply to all persons, whether they were or were not British Indian subjects. The Act was passed in 1920 and no provision of law has been pointed out to us, which restricted the power of the legislature to pass such a law in respect of British Indian subjects. There is also no provision in the Act which restricts its operation to persons other than Indian citizens. If this had been the intention, there would have been some provision to that effect in the Act or at least the wide and general words like person and persons would not have been used.

3. It has been urged that the passport is a document, which a Government of the country issues to its own citizens in order that he may get proper treatment from a foreign Government and also protection from the representatives of his own country, when he is in a foreign land. In Joyce v. Director of Public Instructions. 1946 AC 347, the Lord Chancellor, Lord Jowitt, quoted with approval the following passage from the judgment of Lord Alverstone C. J. in Rex v. Brailsford, (1905) 2 KB 730 :

'It is a document issued in the name of the Sovereign on the responsibility of a Minister of a Crown to a named individual, intended to be presented to the Governments of foreign nations and to be used for that individuals protection as a Biitish subject in foreign countries..,.....'

The Lord Chancellor then observed :

'By its terms it requests and requires in the name of His Majesty all those whom it may concem to allow tne bearer to pass freely without let or hindrance and to afford him eveiy assistance and protection of which he may stand in need. It is, I tnink, true that the possession of a passport by a British subject does not increase the sovereign's duty of protection, Though it will make his path easier. for him it serves as a voucher and means of identification.'

It has, therefore, been urged that as the object of issuing a passport is to enable a subject to obtain assistance and protection in a foreign country and not in order to enable him to return to his own country, the Indian Passport Act, which only seeks to regulate entry of persons into India, must be held to apply to only foreigners and not to Indian citizens. This argument finds support in the decision of the Madras High Court in V. G. Row v. The State of Madras, : AIR1954Mad240 . It was observed in that case that the Passport Act was not intended to prevent Indian subjects from entering India.

4. The words used in the various provisions of the Act, however, are 'person' and persons', which would include Indian citizens also. As pointed out in Joyce v. Director of Public Instructions (A), a passport also serves as a means of identification of the person to whom it is issued. If a person possesses such a passport, it would be easy to find out whether he is or is not a citizen of India. In order to exercise a check on the entry of foreigners in India, to prevent undesirable foreigners from entering India and to keep a record of those who are allowed entry, the Legislature may have considered it necessary to require that all persons entering India should possess passports, so that it may be possible to ascertain at the time, when a person seeks entry into India, whether he is or is not an Indian citizen. In any case, having regard to the use of the general words 'person' and 'persons' in the various provisions of the Act, we are of the opinion that the Act applies to Indian citizens also.

5. This is also clear from the rules framed under the Act. Sub-section (4) of Section 3 of the Act states that all rules made under this Section shall have effect as if enacted in the Act. Rule 3 provides that save as provided in R 4. no person, proceeding from any place outside India, shall enter or attempt to enter India unless he is in possession of a valid passport. Rule 4 exempts rertain class of persons from the provisions of R 3. Under Clause (b). members of the Armed Forces of India on duty abroad and members of the 'family of any such person, when accompanying such person to India on a Government Transport, are exempt from the provisions of R. 3. The fact that it was considered necessary to exempt certain classes of Indian citizens from the application of Rule 3 shows that Rule 3 was intended to apply to all persons, including Indian citizens.

6. it has been contended that B, 3 is invalid, as it contravenes the fundamental right conferred by . Art. 19 of the Constitution to move freely throughout the territory of India. This argument cannot be accepted, in view of Ine following observations of the Supreme Court in Ebrahim Vazir Ma vat v. State of -Bombay, : 1954CriLJ712 :

'That an Indian citizen visiting Pakistan for any purpose whatsoever and returning to India may be required to produce a permit or passport as the case may be before he can be allowed to enter the country, may well be regarded as a proper restriction upon entry .....'

It may not be possible to prevent a citizen of India from entering India, but there seems to be nothing unreasonable in requiring that even a citizen should carry a passport or other document of identification at the time he returns to India.

7. We are, therefore, of the opinion that;the Passport Act and the rules framed thereunder apply to Indian citizens also. As theapplicant has admittedly entered India withoutpossessing a valid passport, he is guilty of theoffence punishable under Rule 6 of the IndianPassport Rules. The applicant was, therefore,rightly convicted. Having regard to thecircumstances of this case, we reduce the fineimposed on the application to Rs. 25/-. Excessfine, if any, paid by the applicant should berefunded.

8. Revision dismissed.


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