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The State Vs. Sk. Korban Khan - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtOrissa High Court
Decided On
Case NumberGovernment Appeal No. 2 of 1964
Judge
Reported inAIR1965Ori145; 1965CriLJ232
ActsForeigner Act, 1946 - Sections 8, 9 and 14; Constitution of India - Article 5, 7 and 9; Citizenship Act, 1955 - Sections 9(2)
AppellantThe State
RespondentSk. Korban Khan
Appellant AdvocateS.C. Mohapatra, Adv.
Respondent AdvocateD.C. Mohapatra, Adv.
DispositionAppeal dismissed
Cases ReferredAbdul Sattar Haji Ibrahim Patel v. State of Gujarat
Excerpt:
.....is now well settled by their lordships of the supreme court in abdul sattar haji ibrahim patel v. this section provides inter alia that where any question arises with reference to the said act, or any order made, or direction given thereunder, whether any person is or is not a foreigner, the onus of proving that such a person is not a foreigner, shall notwithstanding anything contained in the indian evidence act, lie upon such person so that in the present proceedings in deciding the question as to whether the accused was an indian citizen within the meaning of article 5 of the constitution, the onus of proof will have to be placed on the accused to show that he was domiciled in the territory of india on january 25, 1950 and that he satisfied one of the three conditions prescribed by..........of proving that such a person is not a foreigner, shall notwithstanding anything contained in the indian evidence act, lie upon such person so that in the present proceedings in deciding the question as to whether the accused was an indian citizen within the meaning of article 5 of the constitution, the onus of proof will have to be placed on the accused to show that he was domiciled in the territory of india on january 25, 1950 and that he satisfied one of the three conditions prescribed by clauses (a), (b) and (c) of the said article. 4. does the accused show that he was domiciled in india and was residing in india on january 28, 1950? on this point, the accused led both oral and documentary evidence which has been considered by the trial magistrate. 5. the evidence of p.w. 5 g.n......
Judgment:

S. Barman, J.

1. Sk. Korban Khan, originally a resident of Kendrapara, District Cuttack now alleged to be a Pakisthani national was charged for not leaving India as per directions of the State Government. He was proceeded against under the Foreigners' Act and the Rules made thereunder. The sub-divisional Magistrate, Kendrapara acquitted him of the charge on the finding that the accused respondent is an Indian Citizen and also that the case is not maintainable since the Central Government had not declared the accused as a foreigner.

2. On October 1, 1961 the accused entered India under a Pakisthani Passport dated Nov. 21, 1959. By an order made by the State Government be was directed to leave India by September 28, 1962. Subsequently the period was extended till November 15, 1962 but the accused did not leave India. Thereafter Kendrapara Police was directed to proceed against the accused under the Foreigners Act for not having complied with the order and for continuing to stay in India without authority. The First Information Report was accordingly filed on December 12, 62 and he was charged and acquitted by the learned Magistrate as aforesaid.

3. It is now well settled by their Lordships of the Supreme Court in Abdul Sattar Haji Ibrahim Patel v. State of Gujarat, Cri. Appeal No. 153 of 1961 D/-17-2-1964: (AIR 1965 SC 810) that the legislature has placed the burden of proof on a person who is accused of an offence punishable under Section 14 of the Foreigners Act. This section provides inter alia that where any question arises with reference to the said Act, or any order made, or direction given thereunder, whether any person is or is not a foreigner, the onus of proving that such a person Is not a foreigner, shall notwithstanding anything contained in the Indian Evidence Act, lie upon such person so that in the present proceedings in deciding the question as to whether the accused was an Indian Citizen within the meaning of Article 5 of the Constitution, the onus of proof will have to be placed on the accused to show that he was domiciled in the territory of India on January 25, 1950 and that he satisfied one of the three conditions prescribed by Clauses (a), (b) and (c) of the said Article.

4. Does the accused show that he was domiciled in India and was residing in India on January 28, 1950? On this point, the accused led both oral and documentary evidence which has been considered by the trial Magistrate.

5. The evidence of P.W. 5 G.N. Mohanty, Grade I Assistant, Home Department, Government of Orissa, in charge of the Foreigners Section said that the wife of the accused is an Indian national; that the accused was originally a resident of Gorapur under Kendrapara police station, Dist. Cuttack, P. W. 6 the officer-in-charge of Kendrapara Police station said that the accused was a permanent resident of Garapur Police Station, Kendrapara prior to his migration to Pakisthan.

6. As regards documentary evidence the accused relied on certain Zamabandi Registers and tax receipts all purporting to show that the accused has properties in India, has been assessed to tax and that he has been paying taxes. These documents were proved by the Secretary, Gulnagar G. P. who was called by the accused as a defence witness, D. W. 1. The position with regard to the accused's properties in India will be made amply clear from the evidence of this witness which is this:

'l have brought the zamabundi Register ofGulnagar G.P. The accused has been assessed toPunchayat Tax for 1954-55 to 1956-57. Entry No. 270at page 12 of the Zamabundi Register shows thatthe accused hag been assessed to Punchayati Taxamounting to Rs. 1-8-0 per year. Ext. A is theZamabandhi Register and Ext. A (1) is the aboveentry. Ext. B is the Zamabandi Register for 1957-58 to 1960-61. Ext. B (1) at page 45 shows thatthe accused has been assessed to Punchayat taxat Rs. 1.25 per year. Ext. C Is the Zamabandiregister for the year 1961-62 to 1962-63. Ext. C (1)at page 53 shows that the accused has been assessedto Punchayat Tax. Exts. D and D-1 are tax receiptsgranted to the accused by Narayan Das, PunchayetTax Collector. Exts. D-2 to D-6 are tax receiptsgranted to the accused by Radhamohan MohantyPunchayat Tax Collector.

Exts. E to E-6 are the Choukidari Tax receipts granted to the accused by Patidapaban Mohanty, Choukidari Tax Collector. Exts E-7 to E-11 are Choukidari tax recerpts granted to the accused toy Bijoyrama Mohanty.'

It is in evidence that Gulnagar G. P. was established in 1953. All the available material documents relating to the accused's properties since the very establishment of the Grama Panchayat were produced in court.

7. It is thus clear that the accused baa discharged the initial proof, namely, that he is an Indian citizen. The prosecution has led no evidence to prove that the accused has lost his Indian citizenship. He has properties In India and his wife in India. There Is no evidence as to when he bad left India.

8. As regards the Pakisthani Passport, itby itself does not show that he is a Pakisthani national. Their Loraships of the Supreme Court emphasised in the judgment cited above that the requirement of migration postulates that the person must have left India with the intention of residing permanently in Pakisthan. Leaving India casually for a specific purpose without Intending to settle down permanently in Pakisthan would not amount to migration, it has been settled by the decision of the Supreme Court that the migration to which Article 7 of the Constitution refers must have taken place between March 1, 1947 and January 26, 1950. Article 9 provides that no person shall be a citizen of India by virtue of Article 5, or be deemed to be a citizen of India by virtue of Article 6 or Article & if he has voluntarily acquired the citizenship of any foreign State. Casual visits to Pakisthan would not make one a Pakisthani National.

9. Apart from merits, on the question of the very maintainability of the prosecution of the accused in this case, it Is the settled view that the court has no power to determine the question of change of Indian citizenship. Whatever (Whenever?) a question as to whether a person has acquired the citizenship of a foreign state falls to be considered, the jurisdiction to decide that question vests exclusively in the Government of India, and in deter, mining the said question the Government of India may exercise its powers as prescribed by the relevant rules framed under Section 9(2) of the Citizenship Act, 1955. If the question about the acquisition of citizenship of a foreign country has not been determined, in respect of any person, by the Government of India as prescribed by the relevant rules, it would not be open, to any state to prosecute the said person on the basis that he has lost his citizenship of India and has acquired the citizenship of a foreign country. A decision by the Government of India is a condition precedent in that behalf. In the present case the learned Magistrate was justified In his finding that at this stage the prosecution is not maintainable because the Central Government has not yet declared the accused as a foreigner and so he cannot be held guilty under Section 14 of the Foreigners Act.

10. In this view of the case, the order of acquittal by the learned Magistrate is upheld. The Government appeal is dismissed.


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