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State Vs. Ghoraishi (Qureshi) Sayed Mohomed - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtMumbai High Court
Decided On
Case NumberCriminal Appeal No. 1485 of 1962
Judge
Reported inAIR1964Bom235; (1964)66BOMLR216; 1964CriLJ399; ILR1964Bom278
ActsCitizenship Act, 1955 - Sections 3, 3(2), 9 and 9(2); Foreigners Act, 1946 - Sections 14; Citizenship Rules, 1956 - Rule 30; Constitution of India - Article 5; Foreigners' Order, 1948; Registration of Foreigners Rule, 1939; Code of Criminal Procedure (CrPC) , 1908 - Sections 342;
AppellantState
RespondentGhoraishi (Qureshi) Sayed Mohomed
Appellant AdvocateC.C. Vaidya, Asst. Govt. Pleader
Respondent AdvocateC.H. Jamani, Adv.
Excerpt:
citizenship act (lvii of 1955), section 9 - constitution of india, article 5--foreigners' act (xxxi of 1946), section 14--foreigners' order, 1948. para. 7--applicability of section 9(2) of citizenship act--whether court has jurisdiction to decide whether person is or is not an indian citizen or could be deemed to be one under article 5 of constitution--domicile--whether domicile can be inferred from mere fact of long residence--domicile how can be established--domicile of origin and domicile of choice--domicile of choice how can be inferred.;the question as to whether any decision under section 9 of the citizenship act, 1955, and the rules framed thereunder is necessary is dependent on whether a person, in the first instance, was an indian national and, further, whether subsequently he.....1. this is an appeal by the state against the acquittal of the respondent, who was prosecuted for having committed an offence under section 14 of the foreigners act, 1946, read with paragraph 7 of the foreigners' order, 1948. the case of the prosecution is that the respondent is an iranian national and he failed to depart from india within the prescribed time limit, which expired on the 10th of february, 1962. the prosecution alleges that the residential permit which was granted to him was valid only up to the 10th of february, 1962. the prosecution have produced a certificate at registration issued to the respondent under the registration of foreigners rule, 1939 (exh. 4). this certificate seems to have been issued on the 10th of february, 1949. it shows the year of arrival of the.....
Judgment:

1. This is an appeal by the State against the acquittal of the respondent, who was prosecuted for having committed an offence under Section 14 of the Foreigners Act, 1946, read with paragraph 7 of the Foreigners' Order, 1948. The case of the prosecution is that the respondent is an Iranian National and he failed to depart from India within the prescribed time limit, which expired on the 10th of February, 1962. The prosecution alleges that the Residential permit which was granted to him was valid only up to the 10th of February, 1962. The prosecution have produced a certificate at Registration issued to the respondent under the Registration of Foreigners Rule, 1939 (Exh. 4). This certificate seems to have been issued on the 10th of February, 1949. It shows the year of arrival of the respondent in India was '1935'. The address of his East residence outside India has been stated as 'Tezd Iran'. The manner of acquiring his nationality has been mentioned as, 'By birth'. The prosecution has also relied on an application made by the respondent on the 19th of April, 1961 (Exh. B). That application is on a form required to be filled in by an alien desiring to extend his stay in India. In this application also, the nationality of the respondent has been shown as 'Iranian', and the place and date of his birth have been shown as '1922, Yezd. Iran'. He is shown to be the holder of a passport, and the date of the passport and the date up to which it is valid are also mentioned against column 6 as '7-5-1959 issued at Bombay, valid till 7-5-62'. It is common ground that this was a passport issued by the Government of Iran. This application also confirms that the year of the respondent's arrival in India was '1935,'. Then there are two columns which are material. Against Col. 10: 'Whether resident in India previously and, if so, for what period', he has stated 'Yes, since my arrival in India'. Against column 11: 'Date of expiry of authorised period of residence in India' he has stated '10-2-61'. The reason for extension of stay is stated as 'To continue business'. Reliance is also placed on a Residential Permit (Exh. C). The Residential Permit mentions that the respondent, 'a foreigner of Iranian Nationality, holding Iranian Passport No. T/462915 /136 dated 7th May 1959. issued at Bombay is permitted to remain in India until 10th February, 1961.' Paragraph 4 of the Residential Permit specifically mentions that 'application for an extension of period of this permit must be made at least fifteen days before 10-2-1961'. At the bottom of this permit there is an endorsement, 'Permitted to extend stay in India till 10-2-1962 by Commissioner of Police, Bombay.' This endorsement is signed, by the Registration Officer, Bombay, it is the expiry of this period on the 10fh of February, 1962, and the failure on the part of the respondent to have his permit extended, that has resulted in the present prosecution. There are two other documents on which also the prosecution relied. It is alleged that although the period of his permit expired on the 10th February, 1962, the respondent actually applied for extension on the 12th of February, 1962. In this application (Exh. D) also the respondent has given his nationality as 'Iranian', and the place and date of his birth have been mentioned as '1922 Yezd Iran'. The purpose of visit to India is given as 'For business'. Against the column 'Whether resident of India previously and, if so, for what period', the respondent has stated 'Long resident'. The period for which extension was required is stated as 'one year'. The reason for extension of stay in India has been stated as 'To continue my above profession'. Another document is a passport (Exh. E). This is a passport which was issued on the 7th of May, 1959. It is issued by the Government of Iran and the domicile of the respondent has been shown as 'Iran, residence Bombay'. There are two more documents. One is an application by the respondent to the Deputy Commissioner of Police, Special Branch II, C. I. D., Bombay, (Exh. F). This is an application for a 'no objection' certificate. It is stated that the respondent intended to proceed to Iran along with his wife and two small children for the purpose of a change of climate and to see relatives. The other one is a form filled in by the respondent for the grant of a 'no objection' certificate (Exh. F/1). In this also, the respondent has staled that his nationality was 'Iranian' and the purpose of his visit' to India was 'business'. It must also be mentioned that the objection of his proposed journey to Iran has been mentioned as change of climate' and the probable date of his return to India is given as 'within six months'. The reason for returning to India is 'to enable me to continue my business' This is the material on the basis of which the prosecution, wanted to establish that the respondent had committed an offence under Section 14 of the Foreigners' Act 1946, read with Paragraph 7 of the Foreigners' Order. 1948. In support of its case the prosecution has examined S. I. P. Anant Shivram Patne. He has given evidence on the basis of the documents in his possession, and the documents, to which I have already referred have been produced by him. There is hardly any cross-examination of this witness; a question was asked as to whether there was anything on the record to show that the respondent had gone to Iran, and the witness has admitted that there was no such record.

2. The respondent was examined under Section 342, Criminal Procedure Code. He has admitted that Exh. E, the passport, is his passport, and the registration Certificate registering him as a foreigner (Exh A), was his Registration Certificate. Then he has admitted that he is an Iranian National. The explanation given of the period permitting him to stay in India is that he had in fact gone on the 10th of February, 1962, to apply for extension of stay in India, but no officer was present to receive his application. The next day, according to him, happened to be a Sunday and that is how he presented his application on the 12th of February, 1962. The respondent, however, stated that he had not committed any offence. Subsequent to this statement under Section 342 Criminal Procedure Code, the respondent has also filed a written statement. In the written statement the respondent points out that he came to India in 1935 and has been doing the business of running a hotel and restaurant in Bombay since then. He claims to have been domiciled in India. The material part of his statement in this regard is as follows:- 'I have been domiciled in this country I have no intention of going back to Iran. I want to live in this country and the here.' IN support of his contention that he was not a foreigner, he also raised a legal contention, namely, that the question whether he had lost Indian Nationality can be decided only by the Central Government. He repeats his explanation for not presenting his application on or before the 10th of February, 1962

3. The learned Additional Chief Presidency Magistrate held that the prosecution had failed to establish that the respondent was a foreigner and hence he had not committed any offence. He, therefore, acquitted the respondent, and that is why the State has now come up in appeal.

4. At the outset, I may point out that Mr. Vaidya, the learned Assistant Government Pleader, who appeared for the State fairly conceded that the offence, even if established, is only a technical offence and the Government had no intention of throwing the respondent out of India. The Government desired only to resist the respondent's claim to Indian citizenship and irrespective of whatever be the result of this appeal, the Government will still consider his application for extension sympathetically,

5. The learned Additional Chief Presidency Magistrate has taken the view that it was necessary for the Central Government to have decided whether the respondent had ceased to be an Indian Citizen and had become a foreigner by acquiring the nationality of another country He has observed that inasmuch as no such decision has been taken by the Central Government and inasmuch as the State has not given any evidence to show that the respondent has lost his Indian Nationality, it could not be held that the respondent is a foreigner. For coming to that conclusion the learned Magistrate places reliance on the decision of the Supreme Court in State of A. P. v Abdul Khader : 1961CriLJ573a . The learned Magistrate took the view that since there is an allegation that the accused is a Foreigner, it was necessary for the prosecution to establish that he had lost his, Indian nationality. In support of the view which he took ho relied on the provisions of Section 9 of the Citizenship Act, 1955, and the rules framed thereunder. As I will presently point out, the question as to whether any decision under Section 9 of the Citizenship Act and under the rules framed thereunder, is necessary is dependent on whether a person, in the first instance, was an Indian national and, further, whether subsequently he acquired the nationality of another country. When the very question whether the person, concerned is an Indian national is in dispute, the question of any decision by the Central Government under Section 9 of the Act and the rules framed thereunder does not arise. Even in the decision of the Supreme Court, to which the learned Magistrate has referred, it has been held that it is for the Court to decide, whenever such a question arises, whether a person is an Indian citizen. In the present case, reliance was placed on the provisions of Article 5 of the Constitution, and if it was found that the respondent had complied with the requirements of Article 5 of the Constitution, it is obvious that the respondent would have been an Indian citizen. But the question whether the respondent ever became an Indian citizen, is itself in dispute. The question therefore, being whether or not the respondent is an Indian citizen or whether or not he was deemed to be an Indian citizen under the provisions of Article 5 of the Constitution, the Courts are competent to decide such a question. It is only when an Indian citizen is alleged to have changed his nationality that the question that such a change in nationality has taken place is taken out of the jurisdiction of Courts, and that question is left to be decided solely by such authority as may have been prescribed under the provisions of Section 9 of the Citizenship Act and the rules framed thereunder. Section 3 of the Citizenship Act provides that every person born in India on or after 26th January, 1950, shall be a citizen of India by birth. This, of course is subject to certain provisions contained in subsection (2) of Section 3. Subject to these provisions, therefore, any person who is born in India after the commencement of the Constitution, shall be a citizen of India by birth. But the provisions of the Citizenship Act have to be read subject to the provisions of the Constitution, and even apart from persons who are born in India after the 26th January, 1350, certain provisions of the Constitution regard persons as deemed citizens if the conditions in Article 5 of the Constitution are satisfied. It is necessary to refer to Section 9 of the Citizenship Act, which provides for the termination of Citizenship. Section 9 is as follows:-

'9 (1) Any Citizen of India who by naturalisation, registration or otherwise voluntarily acquires, or has at any time between the 26th January, 1950, and the commencement of this Act voluntarily acquired the citizenship of another country shall, upon such acquisition or, as the case may be, such commencement cease to be a citizen of India:

Provided that nothing in this sub-section shall apply to a citizen of India, who, during any war in which India may be engaged, voluntarily acquires the citizenship of another country, until the Central Government otherwise directs.

(2) If any question arises as to whether, when or how, any person has acquired the citizenship or another country, it shall be determined by such authority, in such manner, and having regard to such rules of evidence, as may be prescribed in this behalf '

For the purpose of the view which the learned Additional Chief Presidency Magistrate has taken, the relevant provision is only sub-section (2) of Section 9. In order that the application of this sub-section can be attracted, the question which, should have arisen must be whether any person has acquired the citizenship of another country. Therefore, the point at issue in such cases is whether a person has changed his citizenship. For example, when it is contended that a person, who is an Indian citizen, has acquired the citizenship of another country, then only the provision of sub-section (2) of Section 9 can apply, and it is then, that in the manner provided in the rules, that question will have to be determined by the authority provided for in the rules. But in the present case the question is not whether the respondent has given up his Indian Citizenship. On the other hand, the question is whether he ever was an Indian Citizen at all. That question is not taken out of the jurisdiction of Court That is precisely the view taken by the Supreme Court in : 1961CriLJ573a , to which the learned Additional Chief Presidency Magistrate has referred. The question at issue in that case was whether the respondent in the appeal before the Supreme Court, had acquired Pakistani nationality. It was not in dispute that at one time the respondent was an Indian Citizen. Reliance was placed at a passport issued by the Pakistan Government and it was contended that by virtue of that passport the respondent -must be deemed to have abandoned his Indian Citizenship and had for that reason, acquired Pakistani Citizenship. In this context it was observed as follows (at p. 1469);

'The question whether a person, is an Indian citizen or a foreigner, as distinct from the question whether a person having once been an Indian citizen, has renounced that citizenship and acquired a foreign nationality', is not one which is within the exclusive jurisdiction of the Central Government to decide. The Courts can decide it and therefore the learned Magistrate could have done so.'

The Supreme Court, therefore, clearly laid down that these were two distinct questions. One question was whether the person was an Indian Citizen or a foreigner. This is a question which can be decided by Courts. The other question was whether the person who was once an Indian Citizen has renounced that citizenship and acquired a foreign nationality. This is a question which is exclusively within the jurisdiction of the Central Government. The learned Additional Chief Presidency Magistrate observed as follows:

'Section 9(2) of the Citizenship Act, 1955, provided that 'if any question arises as to whether, when or how, any person had acquired the citizenship of another country, it shall be determined by such authority, in such manner and having regard to such rules of evidence, as may be prescribed in this behalf.' Under Rule 30 of the Citizenship Rules, 1956, framed under that Act, the authority to decide that question is the Central Government. Therefore the question whether the accused having Indian citizenship by virtue of Article 5(c) has acquired Iranian citizenship, in my opinion, cannot be deckled by this Court. I rely on the judgment of the Supreme Court in Criminal Appeal No. 192 of 1959 : : 1961CriLJ573a , which lays down that this Court has no jurisdiction to come to the finding on the strength of the passport that the accused, an Indian citizen, had acquired Iranian citizenship.'

With respect, this is not the correct legal position because the learned Magistrate has assumed that the respondent was an Indian citizen under Article 5(c) of the Constitution. It was never conceded in the present case that the respondent is an Indian Citizen. It was never the contention of the State that although the respondent was an Indian citizen, he had abandoned that citizenship and had acquired Indian nationality. On the contrary, the main dispute was whether the respondent was an Indian citizen at all. The prosecution claimed that the respondent was a foreigner on the ground that he was not an Indian citizen and he had also registered himself as a foreigner under the Foreigners Rules. The question therefore, whether or not the respondent had abandoned Indian citizenship did not arise, at all before the learned Magistrate, If that question had arisen, the learned Magistrate was right in saying that that question could have been decided only by the Central Government. But it was not right to assume that the State had accepted that the status of the respondent was that of an Indian citizen. On the contrary, the state had been contending that he was a foreigner and, not being an Indian citizen, he could not continue to reside in India without a valid permit under the rules framed under the Foreigners Act. The very fact that the State was contending that he was a foreigner means that it was their contention that he was not a citizen of India. In the Foreigners Act, 1946, 'foreigner' has been defined as 'a person who is not a citizen of India'. Therefore, the contention that respondent was a foreigner meant that the State was not conceding that he was a citizen of India. It was, therefore, not correct to assume that the status of the respondent as a citizen of India was not disputed. It is true that the respondent was claiming that he was an Indian citizen by virtue of the provisions of Article 5 of the Constitution, whereas, on the other hand, the State was contending that he was a foreigner. Therefore the issue before the learned Magistrate was whether or not the respondent was an Indian citizen. The question whether the respondent was or was not an Indian citizen is a question which it is open to the Court to decide, and is not within the exclusive jurisdiction of the Central Government; no question as to whether he had abandoned Indian citizenship can arise until it was established that he ever became an Indian citizen. The acquittal of the respondent, therefore, on this ground was erroneous.

6. In view of this, it is not necessary to consider whether the claim of the respondent that he was an Indian citizen, is justified on the evidence on record. The respondent claimed Indian citizenship on the basis of Article 5 of the Constitution. Article 5 of the Constitution is as follows :-

'At the commencement of this Constitution every person who has his domicile in the territory of India and

(a) who was born in the territory of India; or

(b) either of whose parents was born in the territory of India; or

(c) Who has been ordinarily resident in the territory of India for not less than five years immediately preceding such commencement, shall be a citizen of India.',

In order that a person may be deemed to be a citizen of India, two conditions must be shown to have been satisfied. One condition is that at the commencement of the Constitution the person claiming citizenship must have had his domicile in the territory of India. In addition to this condition, either of the three conditions mentioned in clauses (a) (b) and (c) of that Article must be satisfied. A person who shows that he had been ordinarily resident in the territory of India for not less than five years immediately preceding the commencement of the Constitution, need not be born in the territory of India or need not be a person, either of whose parents is born in the territory of India but still it is imperative that he must show that he had his domicile in the territory of India at the commencement of the Constitution. Article 5 requires that mere residence for a period of not less than five years would not be enough, but the additional condition is that he must have had his domicile in the territory of India at the commencement of the Constitution. In the present case, it was established that the respondent had been ordinarily resident in the territory of India for not less than five years immediately preceding the commencement of the Constitution. But this was not enough as it was also necessary to establish that he had his domicile in India at the commencement of the Constitution.

7. Miss Jamani, who appeared for the respondent, contended that the respondent must be deemed to have become a citizen of India on the facts which were brought on the record by the prosecution themselves. She contends that the respondent first arrived in India in the year 1935, as the various applications made by him for extension of the permit for residing in India would show. She says that the mere fact that he had registered himself as a foreigner in the year 1949 would not deprive him of his status as a citizen if he had acquired that status at the commencement of the Constitution. It is true that if it had been established in this case that at the commencement of the Constitution the respondent became an Indian citizen by virtue of Article 5 of the Constitution, the mere fact that subsequently he described himself as a foreigner or treated himself as a foreigner may not have the result of depriving him of that status unless it was definitely established that he had abandoned the Indian Citizenship which he once acquired at the commencement of the Constitution. That question may fall within the scope-of the powers of the Central Government under Section 9 of the Citizenship Act. Hut here the question is not whether he abandoned Indian citizenship but whether he acquired Indian citizenship at all at the commencement of the Constitution and that is why it is necessary to examine whether there is any evidence to show that at the commencement of the Constitution he acquired Indian citizenship. As I have already pointed out, two conditions would have to be satisfied before the respondent would be deemed to be an Indian citizen by virtue of Article 5 of the Constitution. One condition must be taken to have been satisfied in this case, inasmuch as the respondent has been ordinarily resident in India from the year 1935, i.e., for a period of not less than five years before the commencement of the Constitution. But, is there anything in the evidence to show that the oilier condition is satisfied, viz., that he had been domiciled in India at the commencement of the Constitution? Miss Jamani says that the very fact that the respondent had been resident in India from 1935 would show that he had made this country the place of his domicile. She further contends that long residence would confer domicile, as long residence is a clear indication of the respondent's intention to make India his permanent home. She relies on the subsequent applications made by the respondent for 'no objection' certificates to return to India and points out that if the respondent had not made this country his permanent home he would not have applied for a 'no objection' certificate to return to India. The respondent has stated in his written statement that he is doing the business of running a hotel and restaurant. His application for a 'no objection' certificate shows that he was only desiring to go to Iran for a change of climate, and on the basis of this Miss Jamani says that the only intention which could be inferred would be that the respondent made India his home and, therefore, he had acquired domicile of this country at the commencement of the Constitution. It is well established that domicile cannot be inferred from the mere fact of long residence. For establishing domicile two conditions are absolutely necessary to be satisfied. One is the factum of residence and the other is the intention to make the country his permanent home. Dicey in his Conflict of Laws lays down as one of the preliminary requirements of domicile that a person would be considered to be domiciled in the country if he has in that country his permanent home. Dicey refers to the following famous words of Lord Cranworth in the case of Whicker v. Hume (1858) 7 HLC 124.

'By domicile we mean home, the permanent home; and if you do not understand your permanent home I am afraid that no illustrations drawn. from foreign writers or from foreign languages will very much help you to it.'

This was pointed out by Dicey in order to emphasise that an absolute definition of domicile was well-nigh impossible. Cheshire in his Private International Law says that 'the earlier English Judges were content to equate domicile with home-in the sense in which the man in the street, untroubled by legal subtleties, would understand that word'. Then he gave a warning that 'confusion is sometimes caused by the use of the word 'domicile' and 'residence' as if they were synonymous.' He points out that

'a person, indeed, may reside in more countries than one, and there are several matters with. regard to which such multiple residence may produce legal results.'

The substance of the matter is that mere living, residence or the mere fact of residence is no indication of the acquisition of domicile. Long residence must be coupled with an absolute and positive present intention to make the country his permanent home. The present intention to make a permanent home must be coupled with the intention never to leave. Cheshire says as follows:-

'A present intention to remain indefinitely in, an existing home does not per se satisfy the test of permanence. What must be shown is an intention never to leave.'

Unless evidence was brought that, coupled with long residence, there was a positive and absolute intention of making India his permanent home with. the further intention never to leave, an inference of acquisition of domicile from the mere fact of long residence cannot follow. It is necessary to mention this because it is implicit in the basic assumption of Private International Law that domicile can either be domicile of origin or domicile of choice. It is also well settled that unless it is established conclusively that a person has abandoned his domicile of origin, no domicile of choice can be inferred. It is only after a positive establishment of the domicile of choice, can a person be rid of his domicile of origin. It has several times been affirmed, and more than once by the House of Lords, that the present home of a man is. not to be equated with domicil, if he contemplates some event, however, remote or uncertain, which may cause him at some indeterminate time in the future to change his country of residence. If this possibility is present to his mind, even an intention to reside indefinitely in a place is ineffective. Two leading cases, which have not been only referred to but relied upon almost in every authorised text-book on Private International Law, are a pointer to the great difficulty felt by jurists and judges in ascertaining the intention of a person in making a country his permanent home. In Winans v. Attorney General 1904 AC 287 the House or Lords refused to recognise a change of domicile in the case of Winans, the appellant, in spite of the undisputed fact of residence in England for a very very long period. In that case, an American citizen left the United States and lived for many years in England, where he died, leaving by will a legacy on which the Crown claimed legacy duty on the ground that the testator had acquired a domicile in England. The House of Lords found on facts that Winans has resided in England after leaving America for a number of years, but still refused to accept the contention that he had acquired English domicile. They observed that the domicile of origin continues unless a fixed and settled intention of abandoning the first domicile and acquiring another as the sole domicile is clearly shown. Lord Macnaghten quoted with approval the observations of Lord Chelmsford in Udny v. Udny (1869) 1 HL SC 441. These observations are as follows:-

'In a competition between a domicile of origin and an alleged subsequently acquired domicil, there may be circumstances to show that however long a residence may have continued, no intention or acquiring a domicile may have existed at any one moment during the whole of the continuance or such residence. The question in such case is not whether there is evidence of an intention to retain the domicile of origin, but whether it is proved that there was an intention to acquire another domicil,

Lord Macnaughten then stated as follows:-

'So heavy is the burden cast upon those who seek to show that the domicile of origin has been superseded by a domicile of choice. And rightly, I think. A change of domicile is a serious matter serious enough when the competition is between two domicile both within the ambit of one and the same kingdom or country -- more serious still when one of the two is altogether foreign.'

The effect of these decisions is that it would require extremely strong and positive evidence, before an inference of a change of domicile can be made, and particularly so when the change involves a change from the domicile of origin to the domicile of choice. In Ramsay v. Liverpool Royal Infirmary (1930) AC 588, Viscount Dunedin, in his speech, began as follows:-

'My Lords, it has again and again been laid down that a change of domicile from the domicile of origin must be made animo et facto. The factum is the bare fact of residence within the new domicil. 'No amount of assertion of change will be effectual if unaccompanied by actual residence. How then is the animus to be proved? It may be proved by assertion of one sort or another. It may also be inferred from the factum of residence. But in order to be so inferred the colour and characteristics of the residence as deduced from the whole story of what has happened must be taken into account. The bare fact is not sufficient. If therefore the residence is absolutely colourless and there is nothing else, the animus remains unproved.'

8. In the absence, therefore, of the animus being positively proved, coupled with the factum of residence, the abandonment of the domicile of origin and the acceptance of a domicile of choice cannot be held proved. In the light of this position, it has to be considered whether apart from the factum of long residence, has anything been brought on the record to show that the respondent had abandoned his domicile of origin, which indisputably was Iranian domicil, and had accepted Indian domicile as his domicile of choice. The onus of proving that he had acquired Indian domicile as his domicile of choice was on the respondent. He had registered himself under the Foreigners Rules, as a foreigner. Even after the Constitution came, into force he had made applications in which he described himself as an Iranian National and in 1959 in his Iranian passport he even gave his domicile as Iranian domicile. The evidence of long residence is. therefore, in this case, to use the words of Viscount Dunedin, 'a. colourless circumstance'. No facts have been brought on the record to, lend colour to this long residence to invest it with the animus of acquiring a domicile of choice. While the factum is proved, that factum is not coupled with an intention and from the mere fact that the respondent has come to stay in India in 1935, it is not possible to come to the conclusion that for that reason he had also formed a present intention, on or before the 26th of January, 1950, of making this country his permanent home. Miss Jamani invited my attention to the decision of a Division Bench of this Court in M. A. Rodrigues v. State of Bombay : AIR1956Bom729 . In that case Chagla, C. J., who delivered the judgment of the Court of Appeal, held that the appellant had acquired Indian domicile. On a careful perusal of the facts of that case it is clear that there was abundant evidence to come to the conclusion that although the origin of domicile was Goa, the appellant had by his various overt acts established his intention, which was coupled with a long residence, to acquire Indian domicile. But even in that case, the learned Chief Justice said as follows:-

'But although a person may have a domicile of origin, he may acquire what is known as a domicile of choice and that he can only acquire by a conscious act. He must not only give up the country of his origin, but he must make up his mind to stay for an indefinite period in the country where he wants to acquire the domicile of choice.'

On the tests which the learned Chief Justice laid down he found on the facts of that case, that such intention to reside in India permanently and to make India his permanent home was established and that intention was coupled with the factum of long residence. Mr. Vaidya, the learned Assistant Government Pleader, invited my attention to an unreported decision of a Division Beireji of this Court in State v. Amin,' Criminal Appeal No. J050 of 1955, D/- 8-12-1955 (Bom). Mr. Justice Shah, who delivered the judgment, observed as follows:-

'The political status which is known as 'Nationality' and the civil status which is known as 'domicile' are quite distinct. As a result, of the political status a person becomes a subject of a particular country binding him by the tie of allegiance. By civil status his personal rights are governed In England, nationality depends, either upon the birth within the British Regime or by naturalization. Domicile depends upon residence with an intention to reside indefinitely or permanently at a particular place.'

Inasmuch as domicile has been made one condition precedent for the acquisition of citizenship under Article 5 of the Constitution, even nationality is, to that extent, made dependent on domicile. For the purposes of Article 5 Indian nationality cannot be acquired without the existence of domicile at the commencement of the Constitution. In view of this, it was necessary for the respondent to establish that at the commencement of the Constitution he had acquired Indian domicile. No such evidence was brought before the Court. The documents on which the prosecution relied were all either applications for permits under the Foreigners' Act or application for a 'no objection' certificate, but they relate to a period after the year 1949. No evidence, therefore, having been brought to show that the respondent had domicile at the commencement of the Constitution, the mere fact that he had resided in India for a period of nearly fourteen years would not prove that he had acquired Indian domicile.

9. In the view which I have taken this appeal will have to be allowed and the order of acquittal made by the learned Addl. Chief Presidency Magistrate will have to be set aside and the respondent will have to be convicted for having committed an offence under Section 14 of the Foreigners' Act 1946, read with Paragraph 7 of the Foreigners' Order, 194S. I have already said that this was a technical offence, and a fine of Rs. 25/-will meet the ends of justice. In default of payment of fine, the respondent shall undergo S. I, for one week.

10. Appeal allowed.


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