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Wahid Mian Hiddan Mian Vs. the State - Court Judgment

LegalCrystal Citation
SubjectCriminal;Constitution
CourtAllahabad High Court
Decided On
Case NumberCriminal Revn. No. 1477 of 1958
Judge
Reported inAIR1961All111; 1961CriLJ206
ActsConstitution of India - Articles 5, 6 and 7; Foreigners Order, 1948 - Rule 7; Foreigners Act, 1948 - Sections 14
AppellantWahid Mian Hiddan Mian
RespondentThe State
Appellant AdvocateB.D. Gupta, Adv.
Respondent AdvocateK.L. Misra, Adv. General
DispositionApplication dismissed
Excerpt:
.....1950; rule 3 prohibits entry into india without a valid passport conforming to the conditions of rule 5, rule 5 (iv-a) lays down that a passport issued by the government of pakistan should be endorsed by a proper indian diplomatic, consular or passport authority with the visa for india of category c if the intended stay in india does not exceed three months, rule 5-a authorises diplomatic, consular or passport authority referred to above to make an order that the endorsement by way of visa made by it on a passport shall be of no effect and to require the production of the passport before it and cancel the visa endorsement on it, and rule 6 provides punishment for any person who contravenes rule 3. neither the act nor the rules provide for a breach of the condition of the visa limiting..........a pakistani national and on 7-2-1957 he obtained from the high commissioner for india at karachi a visa permitting him to stay in india for three months. he came from pakistan to india on 15-2-1957 and according to the period mentioned in the visa he was bound to depart from india on or before 14-5-1957. this period was extended by the district magistrate, rampur, through an endorsement on the visa itself, by one month; so he became liable to depart from india on or before 14-6-1957. he did not depart from india and a notice was served upon him to depart from india within a certain time but he refused and, thereupon, he was prosecuted under section 14 of the foreigners act, 3. section 2(a) of the act defines a 'foreigner' to be a person who is not a citizen of india. uptill 1956 the word.....
Judgment:
ORDER

M.C. Desai, J.

1. The applicant has been convicted under Section 14 of the Foreigners Act, 1946, for the act of not departing from India before the expiry of the period mentioned in his visa and extended by the District Magistrate, Rampur.

2. The applicant was a resident of Rampur. He went from India to Pakistan, though it is not known when, and whether before, or after, 26-1-1950. It may be conceded that he was an Indian national before he went to Pakistan, On 19-7-1955 he obtained a passport for India as a Pakistani national and on 7-2-1957 he obtained from the High Commissioner for India at Karachi a visa permitting him to stay in India for three months. He came from Pakistan to India on 15-2-1957 and according to the period mentioned in the visa he was bound to depart from India on or before 14-5-1957. This period was extended by the District Magistrate, Rampur, through an endorsement on the visa itself, by one month; so he became liable to depart from India on or before 14-6-1957. He did not depart from India and a notice was served upon him to depart from India within a certain time but he refused and, thereupon, he was prosecuted under Section 14 of the Foreigners Act,

3. Section 2(a) of the Act defines a 'foreigner' to be a person who is not a citizen of India. Uptill 1956 the word was defined differently, but it is. not in dispute that the applicant's case is governed by the definition as it stands now. If he was not a citizen of India on 15-2-1957 he was a foreigner. Section 3 authorises the Central Government to make provision with respect to foreigners for, among other matters, their continued presence in India and their departure from India. In exercise of this power the Central Government made the Foreigners Order, 1948. In this case I am concerned only with Rule 7 of the Order, which reads an follows :

'Every foreigner who enters India on the authority of a Visa issued in pursuance of the Indian Passport Act ..... shall obtain from the Registration Officer having jurisdiction, either at the place at which the said foreigner enters India of at the place at which he presents a registration report in accordance with Rule 6 of the Registration of Foreigners Rules 1939, a permit indicating the period during which he is authorised to remain in India and shall, unless the period indicated in the permit is extended by the Central Government, depart from India before the expiry of the said period.'

Section 14 of the Foreigners Act punishes a person who contravenes the provisions of the Act or of any order made thereunder. The Indian Passport Act, 1920, empowers the Central Government, through Section 3, to make rules requiring that persons entering India shall be in possession of passports, and for all ancillary and incidental matters, and confers power to arrest any person who contravenes any provision of it or of a rule made thereunder and to remove him from India.

The Central Government in exercise of the power conferred by Section 3 has made Indian Passport Rules, 1950; Rule 3 prohibits entry into India without a valid passport conforming to the conditions of Rule 5, Rule 5 (iv-A) lays down that a passport issued by the Government of Pakistan should be endorsed by a proper Indian Diplomatic, Consular or Passport Authority with the visa for India of category C if the intended stay in India does not exceed three months, Rule 5-A authorises Diplomatic, Consular or Passport Authority referred to above to make an order that the endorsement by way of visa made by it on a passport shall be of no effect and to require the production of the passport before it and cancel the visa endorsement on it, and Rule 6 provides punishment for any person who contravenes Rule 3.

Neither the Act nor the Rules provide for a breach of the condition of the visa limiting the period of the foreigners' stay in India, i.e. for his staying in India beyond the period mentioned in the visa. Rule 3 only requires that he shall have a valid passport endorsed with a visa but does not require him to leave India on the expiry of the period mentioned in the visa. Rule 5 also does not require him to leave India on the expiry of the period and Rule 6 does not punish him if he does not.

The reason for not providing any punishment for not leaving India before the expiry of the period mentioned in the visa seems to be that Sections 4 and 5 of the Act conferring powers for his arrest and removal were thought to be sufficient. The only appropriate course to be taken against a foreigner, who does not leave India on the expiry of the period mentioned in the visa, is to remove him from India; punishing him and sending him to jail would be quite the reverse of his fulfilling the obligation to depart from India. If he is bound to depart from India, it would be useless to let him remain in India, even in jail; he must be made to go out of India.

For this, forcible removal is the only appropriate remedy. The Registration of Foreigners Act of 1939 was enacted to confer power upon the Central Government to make rules requiring foreigners, e.g. persons who are not citizens of India, to get themselves registered before the prescribed registration authorities. The Registration of Foreigners Rules, 1939, made in exercise of the power, require every foreigner entering into India to present in person to the appropriate registration officer a report of his arrival in India within a certain time and provide for the issue of a certificate of registration,

4. Every person who on 26-1-1950 (called 'relevant date') has his domicile in India and was born in India or an issue of a person born in India or ordinarily resident in India for not less than five years immediately preceding the date is a citizen of India; (see Article 5 of the Constitution.) Article 6 supplies an exception to Article 5 and makes a person a citizen of India; obviously it governs the case of a person who would not be a citizen of India under Article 5 because of not having his domicile in India on, or completed five years residence before, the relevant date.

If a person migrated from Pakistan into India before the relevant date he would be a citizen of India if certain conditions were fulfilled, even though he might not have his domicile in India on the relevant date or not have resided for at least five years before it. Article 7 makes a person not a citizen of India despite the provisions of Articles 5 and 6; it is an exception to both the Articles and, therefore, deals with a case coming within the scope of either of them. A person who migrated from India to Pakistan after 1-3-1947 is not to be deemed to be a citizen of India even though he retains his Indian domicile or has returned to India before 19-7-1948.

The constitution deals with citizenship on the relevant date and not with the acquisition of citizenship subsequently or with the loss of citizenship. For these matters provision has been made in the Citizenship Act of 1955. Section 9(1) of the Act provides that any citizen of India who voluntarily acquires after 26-1-1950 the citizenship of another country ceases to be a citizen of India upon such acquisition. Section 9(2) is to the effect that

'if any question arises as to whether, when or how any person has 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.'

The Citizenship Rules, 1956, made by the Central Government in exercise of the power conferred by Section 18 of the Act provide that the authority to determine the question referred to in Section 9(2) is of the Central Government and that it shall in determining it have due regard to the rules of evidence specified in Schedule III. Schedule III contains the rules of evidence, one of which (No. 3) is 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 proof of his having voluntarily acquired the citizenship of that country before that date.

5. The applicant denied his migration from India to Pakistan altogether; the denial was absolutely false and against overwhelming evidence. When exactly he migrated is not known; the appellate court did not hold that he migrated after 26-1-1950. It certainly held that he lost citizenship on account of acquisition of citizenship of Pakistan but that was only in the alternative. What it meant is that either he was not a citizen of India at all or he was, in which case he lost his citizenship through acquisition of the citizenship of Pakistan.

In its opinion he was not, or no longer, a citizen of India on 15-2-1957. There is, however the applicant's own admission in the application made by him to the High Commissioner for India at Karachi for a visa to the effect that he had migrated to Pakistan in 1948. He has not explained away this admission and has not shown that it is incorrect. It must be taken as proved that he migrated in 1948 and, therefore, did not have his domicile in India on the relevant date. He was, therefore, not a citizen of India under Article 5 of the Constitution.

It is nobody's case that he migrated to India from Pakistan before 26-1-1950; his case is, therefore, not covered by Article 6. Even if it be said that notwithstanding his migration in 1948 he retained his Indian domicile, Article 7 prevents his being a citizen of India on the relevant date. There is a proviso to Article 7 but the applicant does not claim its benefit. The position, therefore, is that on the relevant date the applicant was not a citizen of India. It is not his case that he acquired citizenship under the Citizenship Act.

Since he was not a citizen of India on the relevant date there arises no question whether he lost his citizenship by acquisition of citizenship of Pakistan and it is unnecessary to consider whether Rule 3 of Schedule III of the Citizenship Rules is ultra vires Section 18(2)(h) of the Citizenship Act. Nor does arise the question whether Section 9(2) of the Act precludes a court from determining whether the applicant has acquired the citizenship of Pakistan and whether, if it has the jurisdiction to determine it, it is bound to, or may, act on Rule 3 of Schedule III of the Citizenship Rules.

6. Since the applicant was not a citizen or India on 15-2-1957, he was a foreigner within the meaning of the Foreigners Act and the Registration of Foreigners Act. He was, therefore, governed by Rule 7 of the Foreigners Order. There is no evidence that on entering into India he obtained any permit from the Registration Officer indicating the period of his stay in India. No permit has been produced by the prosecution nor has it produced any evidence to show that it was lost. The permit itself, if issued, would have been in the applicant's possession but a duplicate or copy of it could have been produced by the prosecution.

It was, therefore, argued by Sri Bhagwan Das Gupta that there was no proof of the period during which he was authorised to remain in India and that consequently there was no proof that he contravened Rule 7. It must be accepted that the offence in the present case consists of not departing from India before the expiry of the period indicated in the permit during which the applicant was authorised to remain in India. The applicant is proved not to have departed from India; he is still here. If it is proved that the period indicated in the permit during which he was authorised to remain in India has expired, he has contravened Rule 7 and has rendered himself liable to punishment under Section 14.

Though the period is referred to as the period indicated in the permit, it does not follow that it can be proved only by a production of the permit and cannot be proved in any other manner. The words 'indicated in the permit' only qualify the duration of the period; if the duration can be proved otherwise than by production of the permit nothing in Rule 7 bars this. I agree with the learned Advocate General that the period indicated in the permit is proved even though no permit was issued and consequently no period was indicated in any permit, if it is proved what must have been the period indicated in the permit if it was issued or what would have been the maximum period indicated in the permit.

The essence of the offence constituted by violation of Rule 7 is the failure to depart from India before the expiry of a certain period and not the indication of the period in a particular document such as a permit. If the maximum period which could be indicated in a permit in accordance with law is proved, the offence is established if it is proved that there was no departure before its expiry. The period of stay in India of a foreigner coming from Pakistan is fixed or determined by the High Commissioner for India through the issue of a visa of a particular category.

In this case the applicant got from the High Commissioner for India a visa of category C which limited his period of stay in India to three months that he would stay in India for the maximum period of three months was the condition of a valid passport on the basis of which he could enter into India. The registration authority issuing a permit under Rule 7 has not been given any power to fix or determine the period of the foreigner's stay in India. The Registration of Foreigners Act and the Rules do not deal with the issue of permits By him at all; all his powers in respect of the Issue of permits are mentioned in Rule 7. All that he can do is to issue a permit indicating the period during which the foreigner is authorised to remain In India.

He himself has not been given any power to authorise his stay in India for a particular period; on the other hand the period mentioned in the visa is the period during which he is authorised to stay in India and there being no other authorised period of stay, the Registration Officer's duty is simply to indicate it in the permit. The power to extend the period indicated in the permit vests in the Central Government; this provision shows that the Registration Officer himself has not got the power to fix the period during which a foreigner is authorised to stay in India.

If he had such power, the power to extend the period fixed by him also would have been conferred upon him; there would have been no sense in withholding from him the power to extend the period and conferring it upon the Central Government. The power to curtail the period of visa is conferred upon the High Commissioner for India, vide the Passport Rules already referred to. If the Registration Officer had the power to fix for the foreigner's stay in India and period other than that mentioned in the visa, it would have been useless to confer upon the Diplomatic Authority etc. the power of curtailing the period mentioned in the visa.

Once the power to fix the period was conferredupon them the same power could not have beenconferred upon the Registration Officer withoutproviding for a clash between the two authorities.I, therefore, agree with the learned Advocate General that the period mentioned in the visa is theperiod to be indicated in the permit by the Registration Officer under Rule 7. The period proved to havebeen mentioned in the visa is the period indicatedin the permit because it could not be differentfrom it; the foreigner is by Rule 7 required to departfrom India before its expiry even though he hasnot been granted a permit by the RegistrationOfficer.

The issue of a permit, is not made a condition precedent to his obligation to depart. He would get a permit from the Registration Officer only if the presents himself before him; by refraining from presenting himself before him and thereby preventing the issue of a permit to him he cannot claim the right of unlimited stay in India. Though Rule 7 casts upon him the obligation of obtaining from the Registration Officer a permit he cannot be prosecuted under Sec, 14 for not discharging this obligation because the rule does not prescribe the period within which he must obtain the permit.

There is a period prescribed for his appearing before him for registration under the Registration of Foreigners Act and Rules but that period cannot be said to be the period within which he must obtain a permit. The provision in Rule 7 regarding obtaining a permit is quite a different provision from the one regarding obtaining a registration certificate. When no time has been prescribed in Rule 7 for his obtaining a permit he can never be prosecuted for his failure to obtain it; so long as he is in India he has an opportunity of obtaining it and so long as the opportunity of obtaining it is not lost it cannot be said that he has failed to obtain it and thereby infringed Rule 7.

The Central Government would not have intended that a foreigner can, by the simple device of not obtaining a permit, stay in India indefinitely and plead that because no permit indicating the period during which he could stay in India was issued to him he was not required to depart from India before the expiry of a certain time. It must have been within the intention of the Central Government that he must depart from India before the expiry of the period mentioned in the visa. The period for which he is authorised to stay in India Is mentioned in the visa; the Central Government might have still provided for the issue of a permit indicating the same period for the sake of convenience.

It would be easier not only for him but also for an inspecting authority to ascertain the period for which he can stay in India from the permit than from the visa. Another reason may be that the local authorities would recognise the signature of the Registration Officer, and detect forgery of his signature, more easily than the signature of the Indian Diplomatic, Consular, or Passport Authority in a foreign country. It may also be that a permit was thought necessary so that extensions of the period fixed in the visa can be endorsed. In any case the provision for the issue of a permit indicating the period for stay in India does not suggest that the period can be different from the period mentioned in the visa.

7. The period for which the applicant could stay in India would be counted from the date of entry into India. That period was extended by the Central Government by one month. Under Rule 7 he was bound to depart from India before the expiry of four months from the date of his entry into India, that being the period for which he was authorised to remain in India, and indicated in the permit or which ought to have been indicated in tile permit if he had obtained it.

8. In an earlier case I had taken a contrary view but the matter was not wholly argued before me. I respectfully disagree with the view of the Bombay High Court expressed in State v. Mahmadkhan Navrangkhan, AIR 1959 Rom 359. In that case Mahmadkhan was acquitted by the trial court of the offence of Section 14 of the Foreigners Act and the State preferred an appeal. The learned Judges observed that the appeal could be disposed of on the ground that the accused was not a foreigner on the date on which he entered into India. If he was not a foreigner he was not governed by Rule 7 and could not be prosecuted under Section 12 for not obeying the provisions of Rule 7.

Still the learned Judges dealt with the argument advanced on behalf of the State that even if no permit had been obtained by the accused he committed a breach of the rule by not departing from India before the expiry of the period mentioned in the visa itself. The learned Judges rejected the argument on the ground that the rule requires that the departure must be before the expiry of the period indicated in the permit and not before the expiry of the period indicated in the visa and that the period indicated in the permit may be different from the period indicated in the visa. No reasons are given for this view. Though, the date of entry into India would in most cases be different from the date of the issue of the visa, the date before which the foreigner must depart from India mentioned in the permit must be identical with such date mentioned in the visa.

9. I hold that the applicant was rightly convicted. I do not consider the sentence of one year's imprisonment as so excessive as to amount to an abuse of the discretion vesting in the trial court.

10. The application is dismissed and the applicant shall surrender himself to undergo the sentence.


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