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The State of Madhya Pradesh Vs. Mumtaz Ali Faiz Ali and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal;Constitution
CourtMadhya Pradesh High Court
Decided On
Case NumberCriminal Appeal Nos. 111 to 123 of 1958
Judge
Reported inAIR1959MP387; 1959CriLJ1337
ActsForeigners Act, 1946 - Sections 2, 3(2), 3(3) and 14; Foreigners Order, 1948 - Sections 2, 7 and 11(2)
AppellantThe State of Madhya Pradesh
RespondentMumtaz Ali Faiz Ali and ors.
Appellant AdvocateP.R. Sharma, Govt. Adv.
Respondent AdvocateS.T. Malgava, Adv.
DispositionAppeal dismissed
Cases ReferredHans Muller v. Superintendent
Excerpt:
.....and heavily on him to prove his innocence. conviction of appellant is liable to be set aside. - 10779-737-h-i under foreigners order, 1948. hf again failed to comply. 26. for these reasons even assuming that the accused is a foreigner and has failed to comply with the notice issued by the district superintendent of police as civil authority calling upon him not to remain in india he cannot be held guilty under section 3(2)(c) read with section 14 of the foreigners act. 33. in the result, i agree with my learnedbrother that these appeals must fail......month under a notice issued to him dated 29-8-1957 in exercise of powers conferred upon him by the state government under notification no. 10779-737-h-i under foreigners order, 1948. hf again failed to comply. he was therefore prosecuted as stated above.5. the accused admitted to have come to india under the pass-port aforesaid and further admitted that the photograph contained in the pass-port is his. but according to him he is an indian national and the pakistan nationality was wrongly entered in his pass-port by the agent. he also admitted to have received the notice issued to him by the district superintendent of police, mandsaur, dated 29-8-57 calling upon him to quit india within one month and his having continued to stay even after the expiry of the period mentioned in the notice......
Judgment:

Newaskar, J.

1. These appeals Nos. 111 to 123 of 1958 are preferred by the State Government under Section 417 of the Cr. P. C. against the orders of acquittal recorded by the Additional District Magistrate, Mandsaur. The accused in all these cases were prosecuted for an offence under Section 3(2)(c) and 14 of the Foreigners Act, 1946, read with Foreigners Laws Amendment Act, 1957.

2. Questions involved in all these cases are almost common but for slight variation as to facts. It is therefore considered proper to deal with them together and to dispose them of by this judgment.

3. In order to facilitate consideration of the principal question involved in these cases it is considered convenient to deal with the case of Mumtazali referable to Criminal Appeal No. 111 of 1958 and the conclusions arrived at on the basis of contentions raised on either side will be applied to the rest of the cases,

4. The case against Mumtazali son of Faizali at present residing in Mandsaur is (hat he came to Mandsaur under a pass-port No. 374376/23-11-l955 issued to him on nis declaration by the Pakistan authorities that he is a Pakistan national. The passport mentioned the date upto which he could stay in India. He however over-stayed. He was thereupon called upon, by the District Superintendent of Police, Mandsaur, to leave the territories of India within one month under a notice issued to him dated 29-8-1957 in exercise of powers conferred upon him by the State Government under Notification No. 10779-737-H-I under Foreigners Order, 1948. Hf again failed to comply. He was therefore prosecuted as stated above.

5. The accused admitted to have come to India under the pass-port aforesaid and further admitted that the photograph contained in the pass-port is his. But according to him he is an Indian national and the Pakistan nationality was wrongly entered in his pass-port by the agent. He also admitted to have received the notice issued to him by the District Superintendent of Police, Mandsaur, dated 29-8-57 calling upon him to quit India within one month and his having continued to stay even after the expiry of the period mentioned in the notice. The date on which he received the notice was stated by him to bo 1-9-1957.

6. The learned Magistrate was of the view that although in the decision reported in Naziranbai v. State, AIR 1957 Madhya Bharat 1 it had been held that the statement as to nationality contained in the pass-port cannot he ignored still it was not held in that case that it is a conclusive evidence as to the nationality. In the present case, according to him, in view of the explanation given by the accused as also the evidence adduced by him it was necessary for the prosecution to give satisfactory evidence that he is a national of Pakistan. He therefore held that it had not been proved beyond doubt that the accused is a Pakistan national.

7. He further held that powers under Section 3(2)(c) at the Foreigners Act, 1946, vest in the Central Government and that the Central Government had not entrusted those powers to the State Government, therefore, according to him, the powers exercised by the State Government as indicated in Notification No. 10779-737-H-I dated 18-7-1957 under Clause (2) of Paragraph 2 of the Foreigners Order, 1948, in appointing the District Superintendent of Police as the Civil Authority for the District for the purpose of the. said Order is without jurisdiction. Under these circumstances the accused could not be held guilty under Section 14 of the Foreigners Act. He relied upon the decisions reported in AIR 1951 Cal 474, 8. A. Shervashidze v. Government of West Bengal, 51 Bom LR 852: (AIR 1950 Bom 101), In re Antonius Raab, and (S) AIR 1955 SC 367, Hans Muller v. Superintendent, Presidency Jail, Calcutta, in this connection.

8. As a result of these findings he acquitted the accused,

9. This is an appeal preferred by the State Government against that decision.

10. In my opinion the order of acquittal in this case cannot be interfered with but for reasons some what different from those upon which the lower Court's order is based.

11. The accused has been charged with the commission of an offence under Section 3(2)(c) read with Section 14 of the Foreigners Act for his act in failing to quit India after the expiry of the period mentioned in his pass-port entitling him to remain in India and in spite of a notice issued by the District Superintendent of Police Mandsaur calling upon him to leave India within one month from the receipt of notice given by him.

12. It is not disputed that respondent Mumtazali did not leave India and he did continue to stay in Mandsaur in spite of the expiry of the period mentioned in his Pakistan pass-port No. 374376 and even after the expiry of the period mentioned in the notice issued by the District Superintendent Mandsaur who purported to act in exercise of powers conferred upon him by the Government of Madhya Pradesh under Notification No. 10779-737-H-I under the Foreigners Order, 1948.

13. The question for consideration is whether the offence alleged has been committed by the accused.

14. Section 3 of the Foreigners Act including material provisions therein is as follows:

'The Central Government may by order make provision either generally or with respect to all foreigners or with respect to any particular foreigner or any prescribed class or description of foreigner, for prohibiting, regulating or restricting the entrv of foreigners into India or their departure therefrom or their presence or continued presence therein.

(2) In particular and without prejudice to the generally of foregoing power, orders made under this section may provide that the foreigner:

(a) ...... ...... ...... ...... ........ ......

(b) ...... ...... ........ ...... ...... ......

(c) shall not remain in India or in any prescribed area therein;.....'

15. Section 14 of the Foreigners Act provides penalty for contravention of the provisions of the Act or any order made thereunder.

16. It is therefore clear that an order under Section 3(2)(c) of the Foreigners Act, 1946, can be issued by the Central Government.

17. Article 258 of the Constitution provides:

'(1) Notwithstanding anything in this Constitution, the President may, with the consent of the Government of a State, entrust either conditionally or unconditionally !o that Government or to its officers functions in relation to any matter to which the executive power of the Union extends.

(2) A law made by Parliament which applies in any State may, notwithstanding that it relates to a matter with respect to which the Legislature of the State has no power to make laws, confer powers and impose duties, or authorise the conferring of powers and the imposition of duties, upon the Stale or officers and authorities thereof.

(3) .....'

18. In pursuance of the power conferred upon the President under this Article a Notification No S. B. O. 1072 was issued on 13-5-1955 which was published in the Gazette of India Part II Section 3 No. 21 dated 21-5-1955.

19. It therefore appears from the above Notification that such an order under Section 3(2)(c) of the Foreigners Act, 1946, can be issued by the State Government,

20. In the present case however the order under Section 3(2)(c) has been issued not by the State Government but by the District Superintendent of Police and that too on the basis of appointment made by the State Government by Notification No. 10779-737-H-I dated 18-7-1957, as Civil Authority for the area within his jurisdiction. In making the appointment the State Government purported to act under Section 2 Sub-section (ii) of the Foreigners Order, 1948.

21. The question then is can the accused be said to have contravened an order under Section 3(2)(c) of the Foreigners Act and is therefore guilty under Section 14 of the Act.

22. In the first place there is no order under Section 3(2)(c) either by the Central Government or by the State Government requiring the accused not to remain in India.

23. As regards the order issued by the District Superintendent of Police, Mandsaur, acting as Civil Authority, under the Foreigners Order, 1948, it may be said that there is no provision under the Foreigners Order, 1948, empowering a Civil Authority to pass an order directing a foreigner not to remain in India. The learned Government Advocate referred us to Sections 7 and 11(2) of the Order upon this point. Section 7 of the Order refers to a permit, to be obtained by a foreigner entering India on the authority of a visa issued in pursuance of the Indian Pass-port Act, 1920 from the Registering Office having jurisdiction it place of entry and provides that a foreigner thus obtaining permit ought to depart from India before the expiry of the period mentioned in the permit.

In the present case it is not said that the petitioner had obtained a permit from any Registering Office when he entered and had stayed beyond the period mentioned therein. Moreover in such a case no order is necessary to be passed by a Civil Authority. Section 11(2) of the Foreigners Order also will have no application as the direction to a foreigner.to comply with the conditions specified in the Orderof a Civil Authority in respect of his movements, cannot mean a direction not tq remain in India. Order not to remain in India is referable to Section 3(2)(c) of the Act while a direction to abide by conditions specified in the order regarding the movements of a foreigner is referable to Section 3(2)(e)(ii) of the Foreigners Act.

24. The power of restricting movements is different from power of expulsion. This appears to have been recognised by the Supreme Court in the decision reported in (S) AIR 1955 SC 367 (371).

25. Thus either of these provisions relied upon by the learned Government Advocate, cannot justify an order of the District Superintendent of Police requiring the accused to quit India. Therefore even on the assumption that the Central Government has delegated its power under Section 2(ii) of the Foreigners Order, of appointing a Civil Authority, io the State Government and the State Government in exercise ofthat power had appointed a District Superintendent of Police to act as Civil Authority, the order issuedby the District Superintendent of Police requiring the accused not to remain in India is not shown to be referable to any power vesting in the Civil Authority under the Foreigners Order.

26. For these reasons even assuming that the accused is a foreigner and has failed to comply with the notice issued by the District Superintendent of Police as Civil Authority calling upon him not to remain in India he cannot be held guilty under Section 3(2)(c) read with Section 14 of the Foreigners Act.

27. The same is the position with respect to the respondents in Criminal Appeals Nos. 112 to 123 of 1958. As it has been held that there is no order issued under Section 3(2)(c) of the Foreigners Act either by the State Government or by the Central Government and as the contravention of the direction in the notice issued by the District Superintendent of Police, acting as Civil Authority under the Foreigners Order, 1948, cannot amount to contravention of the provisions of Section 3(2)(c) of the Foreigners Act nor of any provisions of any order made under that Act the order of acquittal passed in each of the cases referable to the aforesaid appeals cannot be interfered with much on the same reasoning as employed in the case of respondent Mumtazali.

28. The result is that all these Criminal Appeals Nos. 111 to 123 of 1958 are not entitled to succeed. They are therefore dismissed. SHIV dAyAL SHRIVASTAVA J.:

29. Three questions arose in these appeals; (i) whether the respondents were foreigners within the meaning of the Foreigners' Act; (ii) whether the respondents had proved that they had not migrated to Pakistan; and (iij) whether the District Superintendent of Police as Civil Authority constituted under the Foreigners Order 1948, was competent to pass the order in disobedience to which the respondents have been prosecuted,

30. On the first question, the argument of Shri Malgawa was that the respondents were not foreigners on the date that they came to India under a passport. This contention cannot be accepted because it has to be seen on the date when the order was issued under Section 3(2), of the Foreigners Act 1946, whether the respondents were foreigners or not. For that purpose, we will have to look into the definition of 'Foreigner' as given in the Foreigners Act, 1946. Section 2(a) of that Act defines a foreigner as 'a person who is not 0 citizen of India'.

Now, a citizen of India on the relevant dates when the orders against the respondents were passed, meant 'a person who, under the citizenship 07 nationality law for the time being in force in India, was a citizen or national of India'. (See Section 2(b) ofthe Citizenship Act, 1955. Pakistan is included in the first schedule.) Therefore, there is no manner of doubt that on the day that the civil authority passed the order requiring the respondents not to remain in India, they were foreigners.

31. As regards the second question, after going through the evidence produced in these cases, J rind that none of them could prove that they had not migrated to Pakistan. Apart from the fact that they returned to India under a passport, the excuses which some of the respondents took for having gone to Pakistan are absolutely lame and frivolous. In Criminal Appeal No. 118, it was said that the accused had gone to Pakisian for treatment of his nose. heart and mind. It is fantastic to say that the accused could not be treated in this country.

Moreover, a patient suffering from a heaft disease would not go that much distance. Likewise, in Criminal Appeal No. 117, the accused said that he had gone there to bring his wife back. But it has come in the evidence produced by him that he look two years to return from Pakistan. The other respondents have not said anything in their statements under Section 342 as to why they had gone to Pakistan. I am compelled io say that the inference reached by the learned trial Judge was erroneous and not supported by the record. From the circumstances and evidence led, it is fully established that the respondents had migrated to Pakistan.

32. My learned brother has already dealt with the third aspect of the matter and it is very clear that excepting Section 3(2)(c) of the Foreigners Act, 1946, there is no other provision either in the Act or in the Foreigners Order, 1948, which provides for making an order that a foreigner shall not remain in India. Such an order could be passed only by the Central Government or by the State Government. That power could not be delegated to the civil authority constituted under the Foreigners Order, 1948.

It bears repetition that the Foreigners Order, 1948, does not empower the issuance of such an order. Sub-section (3) of Section 3 of the Foreigners Act, 1946, authorizes delegation to make orders under Clause (e) or Clause (f) of Sub-section (2), but not under Clause (c) of S 3(2) of the Act. On analysis, therefore, I find that Shri Rashid Afzal was not, as a matter of fact, empowered to issue an order under Section 3(2)(c) or the Foreigners Act, 1946, nor could he validly be so empowered.

33. In the result, I agree with my learnedbrother that these appeals must fail.


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