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The State Vs. Abdul Hamid and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtPunjab and Haryana High Court
Decided On
Case NumberCriminal Appeal No. 459 of 1956
Judge
Reported inAIR1957P& H86; 1957CriLJ537
ActsConstitution of India - Articles 5 and 7; International Law; Influx from West Pakistan (Control) Ordinance, 1948; Evidence Act, 1872 - Sections 42 and 86; Code of Criminal Procedure (CrPC) , 1898 - Sections 513 and 537
AppellantThe State
RespondentAbdul Hamid and anr.
Appellant Advocate Har Parshad, Asst. Adv. General
Respondent Advocate B.S. Chawla, Adv.
Cases ReferredLakhmi Chand v. The Emperor
Excerpt:
.....under article 227 of the constitution. - after having so migrated to the territory now included in pakistan, has returned to the territory of india under a -permit for resettlement or permanent return issued by or under the authority of any law and every such person shall for the purposes of clause (b) of article 6 be deemed to have migrated to the territory of india after the nineteenth day of july, 1948.'according to the evidence both the children abdul hamid as well as latifan migrated to pakistan after the 1st day of march, 1947, and their case does not fall within the proviso as they have not come under a permit for resettlement or permanent return. that is a very strong case against the admission of this document because in that case the record was sent by the resident..........of the indian passport rules, 1950.2-14. the respondents claim to be husband and wife. they are abdul hamid, aged 25 years, a weaver, who claims to be a resident of tanda (district meerut), and mst. latifan, who is a daughter of asmail weaver and is aged 22 years and has been described as resident of kirana in the district of muzaffar nagar (uttar fradesh). the question put to abdul hamid was that he was a national of pakistan, having settled in jhang maghiana in west punjab and that he had entered india without being in possession of a passport and had thereby contravened rule 3 of the indian passport rules, 1950, made under section 3 of the indian passport rules, 1920 and had thereby committed an offence.his reply was that he never visited pakistan, that he was 'living in tanda ana.....
Judgment:

Kapur, J.

1. This appeal is brought against a judgment ef acquittal passed by a Magistrate of the First Class, Rohtak, dated the 26th June 1956, acquitting the respondents of an offence under the. Indian Passport Act, 1920, read with Rule6 of the Indian Passport Rules, 1950.

2-14. The respondents claim to be husband and Wife. They are Abdul Hamid, aged 25 years, a weaver, who claims to be a resident of Tanda (District Meerut), and Mst. Latifan, who is a daughter of Asmail weaver and is aged 22 years and has been described as resident of Kirana in the district of Muzaffar Nagar (Uttar Fradesh). The question put to Abdul Hamid was that he was a national of Pakistan, having settled in Jhang Maghiana in West Punjab and that he had entered India without being in possession of a passport and had thereby contravened Rule 3 of the Indian Passport Rules, 1950, made under Section 3 of the Indian Passport Rules, 1920 and had thereby committed an offence.

His reply was that he never visited Pakistan, that he was 'living in Tanda ana was an Indian national and that Latifan was his wife and was residing with him at Purkhas where they had been residing for a month prior to the arrest. Mst. Latifan was similarly put this question and she stated that she originally belonged to Tanda in the district of Meerut and had come to Purkhas about a month before the arrest. She abdul stated that she was married to the co-accused Abdul Hamid about the time of partition, i.e., 1947, that, enc had never been to Pakistan, that her parents had migrated from Panipat to Maghiana in the district of Jhang in West Pakistan and that they were Pakistan nationals. (His Lordship considered the evidence for prosecution and defence and continued :)

15. From this evidence it is clear that after the partition both the father of Latifan, i.e., As-mail, and the father of Abdul Hamid went away to Pakistan. Both the accused at that time were minors of the ages of 15 and 12 and ordinarily they would have gone with their parents unless there is some evidence to show that they were left behind with some relations. There is no doubt that Latifan, who was of a very young age at the time of the partition, was in Pakistan througout till she by some means or another came away to this country. About Abdul Hamid also I hold that he did go to Pakistan at the age of 15 & was living there. He might or might not have come to this country occasionally is irrelevant to the issue because there is nothing to show that, after his migration with his father to Pakistan, he gave up his Pakistan nationality to come back to live in this country.

16. Since September 1948 there have existed Permit System Rules which were made under Section 3 of the Influx from West Pakistan (Control) Ordinance, as a result of which no reiuseo as (de-fined in Rule 2(iv) could come from Pakistan without a permit and it has not been shown that Abdul Hamid came with a permanent permit as defined in those rules, nor has any permit been produced before us.

17. Rules in regard to passports 'had been made under Section 3 of the Indian Passport Act since the 2f,th April 1950 which were amended on the 14th October 1952. Under these rules any person proceeding from a place outside India was prohibited from entering India without a passport and even a person domiciled in India if he was proceeding from any place excepting those mentioned in Rule 4 could not enter without such a passport and the words 'or from Pakistan' in Sub-rule (c) of Rule 4 had been omitted by modification of the rules made on the 14th October 1952.

18. Article 7 of the Constitution of India provides:

7. Notwithstanding anything in Arts. 5 and 8, a person who has after the first day of March, 1947, migrated from the territory of India to the territory now included in Pakistan shall not be deemed to be a citizen of India:

Provided that nothing in this article shall apply to a person who. after having so migrated to the territory now included in Pakistan, has returned to the territory of India under a -permit for resettlement Or permanent return issued by or under the authority of any law and every such person shall for the purposes of Clause (b) of Article 6 be deemed to have migrated to the territory of India after the nineteenth day of July, 1948.' According to the evidence both the children Abdul Hamid as well as Latifan migrated to Pakistan after the 1st day of March, 1947, and their case does not fall within the proviso as they have not come under a permit for resettlement or permanent return.

19. According to International Law a child acquires the nationality of a parent and as both Abdul Hamid and Lafifan as minors went to Pakistan and under Article 7 of the Constitution the respective fathers of the two accused did not have Indian nationality their children also must be taken to have acquired the nationality of their fathers, whatever it was. Apparently they cannot retain Indian nationality unless according to the rules made under the Influx from West Pakistan Laws they have come to this country with a permit for permanent settlement or residence.

20. It was then submitted that Abdul Hamid was an Indian national and by marriage Latifan has also become an Indian citizen. On this evidence I am unable to hold that there was any marriage between Abdul Hamid and Mst. Latifan. On the other hand all evidence leads to' the conclusion that Latifan was married to a different person in Pakistan and therefore this argument is not available to the respondents.

21. Counsel then relied on a judgment of a Lahore Magistrate in which he held that Abdul Hamid is an Indian national. A foreign Judgment is not binding on this Court particularly in a case of this kind where conviction was based on Abdul Hamid's pleading guilty. The judgment on which the defence rely was produced by P. W. 3 Asmail and objection was taken to its admissibility. It is not shown on the record that it was admitted into evidence and therefore it Is hit by section 86 9t the Indian Evidence Act which provides:

'66. The Court may presume that any document purporting to be a certified copy of any judicial record of any country not forming part if India or Her Majesty's dominions is genuine and accurate, if the document purports to be certified in any manner which is certified by any representative of the Central Government in or for such country to be the manner commonly in use in that country for the certification of copies of Judicial records.

An officer who, with respect to any territory or place not forming part of India or Her Majesty's dominions, is a Political Agent therefor, as defined in Section3, Clause (43) of the General Clauses Act, 1897, shall, for the purposes of this section, be deemed to be a representative of the Central Government in and for the country comprising that territory or place.''

The document is not authenticated. It was held in Murli Das v. Achut Das, ILR 5 Lah 105: (AIR 1924 Lah 493) (A) that the provisions of Section 86 of the Evidence Act are imperative and must be complied with, and in the absence of the certificate referred to in the section the statements of witnesses taken in a foreign Court are not admissible in evidence. That is a very strong case against the admission of this document because in that case the record was sent by the Resident Jaipur State himself. Similarly in Ganee' Mahomed Sar-kar v. Tarini Charan Chukerbati, ILR 14 Col 548 (B), the same view was taken. That seems to have been the view of a Pull Bench of the Calcutta High Court also in In re Ruldolf Stallmann, ILR 39 Cal 164 (C), where it was held that records of the Berlin Court which are authenticated in the manner prescribed by law can be properly admitted in evidence. No doubt the section is not exhaustive of the modes of proof of foreign Judicial records, but in the present case no other mode of proving the foreign judicial record has been thown.

The learned Magistrate in his judgment ne doubt has stated that the copy of the judgment was accepted in evidence by the prosecution and as such it was admissible according to law. It is not what the prosecution stated, but tne qrestion was whether the copy could be held to be authentic in accordance with Section 86 of the Evidence Act. The authentication by the Indian representative in Pakistan would have been presumptive proof and in the absence of it other proof was necessary, but even if one were to hold that it had been rightly admitted, a foreign judgment cannot confer Indian nationality on a non-Indian national, and indeed it would be a dangerous proposition if adjudication by foreign tribunals could confer on a non-Indian the status of an Indian national. At any rate no principle has been quoted or precedent brought to our notice by which this can be a ireans of acquiring nationality. I am therefore of the opinion that any judgment of the kind produced in this case is wholly irrelevant to the issue.

22. Counsel for the respondents has relied upon certain cases which have been decided by other Courts as to the meaning of the word 'migration'. In Shabbir Husain v. The State of U. P., AIR 1952 All 257 (D), it was held that the words 'migrated from the territory of India' must be taken in the sense of departure from one country to another with the intention of residence or settlement in another country, but the facts of that case were wholly different and have no application to the present case. Sayeedah Khatoon v. The State of Eihar, AIR 1951 Pat 434 (E), Was the case of temporary residence in Pakistan for medical treatment and whether in those circumstances Kumar Rani Sayeedan Khatoon was or was not an evacuee was the question to be decided in that case. This again is inapplicable to the facts of the present case. Another case relied upon is S. M. Zaki v. The State of Bihar. AIR 1953 Pat 112 (F).

In that case also the word 'migration' was held to have an element of permanent change of residence. That was a case under the Evacuee Property Ordinance of 1949, and whether in those circumstances S. M. Zaki could be held to havemigrated to Pakistan or not depended upon the facts of that case and therefore that has no application to the present case. The next case relied upon is Mrs. Rosetta Evelyn Attaulfah v. Justin Ataullah AIR 1953 Gal 530 (G), but that appears to be under Article 5 of the Constitution of India and dealt with the question of domicile and nationality. In my opinion this case too has no application to the facts of the present case and therefore is of very little assistance.

23. Although the question hag never been raised before counsel for the respondents raised the plea that as the Magistrate had no jurisdiction to try the case the proceedings in appeal cannot go on. This argument was based on an assumption that the breach of the Passport Rules was committed at Amritsar, i.e., at the Wagha Border. There is nothing to indicate as to where the offence was committed nor is it shown how the two accused persons entered the territory of India and as 110 objection was taken in the Court of the Magistrate, I do not think it is open to the respondents to take that objection at this stage.

As long ago as 1902 it was held by the Punjab Chief Court in Uttam Chand v. The Emperor 2 Pun Re 1902 (H), that the trial of a case in a dis-trict which had not local jurisdiction is not a defect of jurisdiction but only of venue and can be cured by Section 531 of the Criminal P. C. A similar view was taken by a Full Bench of that Court in the judgment of Chatterji J. in Lakhmi Chand v. The Emperor, 24 Pun Re 1901 (I). The principle of criminal law in regard to jurisdiction where the defect sought to be set up is one of territoria-lity is that unless prejudice is shown the proceedings cannot be held to be null and void.

That is the principle which is laid down in Section 531 of the Criminal P. C, and Section 537 lavs down that in order to determine whether an irregularity in any proceeding has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings. It was admitted by counsel that if there had been a conviction, no objection could have been taken at this stage because of Section 531, but he submits that as this is an appeal against acquittal, the objection is open to him. Counsel has not referred to any authority and I do not think that either on principle or on precedent this objection can be raised at this stage.

In the Civil Procedure Code there is an express provision in Section 21 that no objection can be taken if it is not taken at the earliest stage and the principle of that is contained in Section 537 of the Criminal P, C. read with Section 531. No case of prejudice has been shown and I would therefore overrule this objection at this stage. I would therefore hold:

(1) that both the accused are non-Indian nationals;

(2) that Abdul Hamid is not a national of India and therefore by marriage (even if it is proved) Latifan has not become a national of India;

(3) that even if the accused are nationals of India, they have committed an offence against the rules under the Passport Act as they entered India without a passport: and

(4) that Article 7 of the Constitution of India applies to this case and they have' been wrongly acquitted.

I would therefore set aside the order of acquittal and convict the accused for the offence they are charged with. It is a flagrant case and I would therefore sentence the accused Abdul Hamid to three months' imprisonment. He is also sentencedto a fine of Rs. 50/- in default of payment of which he will undergo a sentence of a fortnight's further imprisonment. As to Mst. Latifan, it is not a case in which so serious punishment should be imposed. I would therefore fine her Rs. 30/-and in default a week's imprisonment.

24. As to what is to be done with the accused after their release, the matter is entirely for the Executive Government to whom the law has given the necessary authority.

Passey, J.

25. I agree.


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