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Mohd. Iqbal Alim UddIn Vs. the State - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtPunjab and Haryana High Court
Decided On
Case NumberCriminal Revn. No. 274-D of 1962
Judge
Reported inAIR1963P& H520; 1963CriLJ666
ActsForeigners Order, 1948; Foreigners Act, 1946 - Sections 14; Constitution of India - Article 7
AppellantMohd. Iqbal Alim Uddin
RespondentThe State
Appellant Advocate Frank Anthony and; O.P. Soni, Advs.
Respondent Advocate M.K. Chawala, Adv.
DispositionPetition dismissed
Cases ReferredThe State of Andhra Pradesh v. Abdul Khader
Excerpt:
.....alter 1951. i am not satisfied, therefore, that the charge deserves to be quashed at this stage on the above grounds. it is nowhere alleged in the charge that the petitioner was originally an indian citizen and he bad acquired pakistani nationality under section 9(1) of the citizenship act......after the expiry of his visa.on 11th july 1957 he was arrested under rules 3 and 6 of the indian passport rules, 1950 for the offence that he had entered india from pakistan without a passport. he was challenged but he was acquitted by shri baldev raj magistrate 1st class delhi, on 31st july 1957. after that he did not go to pakistan and continued to stay in india, in 1959 an amendment was made in paragraph 7(2) of the foreigners order of 1948 according to which all foreigners were required to obtain residential permits by 5th january1960. the petitioner should have obtained a residential permit but he did not do so. he was arrested on 5th october 1961. in the visa applications which he had submitted to the indian mission in pakistan he had voluntarily stated that he migrated.....
Judgment:
ORDER

A.N. Grover, J.

1. This is a petition for quashing a charge framed by Shri M. L. Grover, Sub-Divisional Magistrate, against the petitioner for contravention of the provisions of paragraph 7(2) of the Foreigners Order, 1948, punishable under Section 14 of the Foreigners Act 1946. The charge was as follows:--

'That you, on or about the 5th day of October, 1961 being a foreigner and a Pakistan national and having entered India on the authority of Pakistani Passport via Attari Road Immigration check post on 31-5-1956 and, having subsequently obtained extension of stay in India up to 3U-11-1956 from the Delhi Administration, Delhi and thereafter did not return to Pakistan and continued unauthorised stay in India in contravention of Rule 7(2) of the Foreigners Order 1948 as amended up to date whereby you were required to obtain residential permit on or before 5-1-60 from the Registration Officer, Delhi and in contravention of that you continued staying in Delhi without obtaining the requisite residential permit on or before 5-1-1960. and were apprehended on 5-10-1961 without possessing any residential permit from the Registration Officer, Delhi and thereby contravened the provisions of Section 7(2) of the Foreigners Act as amended up to date which is punishable under Section 14 of the Foreigners Act 1946 and within my cognizance. And I hereby direct that you be tried by me on the said charge.'

The learned Additional Sessions Judge rejected the revision petition and that is why the petitioner has ccme up to this Court.

2. Mr. Anthony, the learned counsel for the petitioner, submits that the charge deserves to be quashed for various reasons. He has invited my attention to the report sub-milled to the Magistrate under Section 173 of the Code of Criminal Procedure on the basis of which the charge has been framed. It is stated therein that the accused had migrated to Pakistan from India in 1947. He began to reside permanently at Lahore and started doing business of buying and selling cattle. He adopted Pakistani nationality. As a Pakistan citizen he obtained a passport dated 27th March 1954 valid up to 26th March 1959 from the Pakistan Government. On 20th April 1954 he submitted an application to the Indian Mission at Lahore for securing a visa for a temporary visit to his parents in India. Along with his application he submitted the said passport. He was given a visa dated 27th April 1954 for stay in Delhi. He entered mala from Pakistan through Attari on 2nd May 1954. After coming to Delhi, he made various applications for the extension of his visa and he was granted extension up to 2nd April 1955. He left India for Pakistan on 25th March 1955.

On the second occasion he again came to India on a temporary visit after obtaining from the Indian Mission in Pakistan a visa dated 14th May 1955. He came to Delhi via Attari on 5th July 1955. He made applications on various dates in the years 1955 and 1956 for the extension of his Visa. He was granted extensions. He left on 21st May 1956. On the third occasion he obtained a visa dated 25th May 1956 from the Indian High Commission for coming to Delhi to see his parents. He came to India from Pakistan on 31st May 1956. He submitted three applications for the extension of his visa at Deihi and the same were granted up to 30th, November 1956. The Delhi Administration returned his Pakistani passport to him on 13th November 1956 in order to enable him to return to Pakistan. He did not go but continued to stay in India without authority after the expiry of his visa.

On 11th July 1957 he was arrested under rules 3 and 6 of the Indian Passport Rules, 1950 for the offence that he had entered India from Pakistan without a passport. He was challenged but he was acquitted by Shri Baldev Raj Magistrate 1st Class Delhi, on 31st July 1957. After that he did not go to Pakistan and continued to stay in India, in 1959 an amendment was made in paragraph 7(2) of the Foreigners Order of 1948 according to which all foreigners were required to obtain residential permits by 5th January1960. The petitioner should have obtained a residential permit but he did not do so. He was arrested on 5th October 1961. In the visa applications which he had submitted to the Indian Mission in Pakistan he had voluntarily stated that he migrated from India to Pakistan in 1947. He was consequently liable for contravention of paragraph 7 of the Foreigners Order punishable under Section 14 of the Foreigners Act

3. Mr. Anthony contends that in one of the documents-which had been produced along with the report under section 173 the date of birth of the petitioner is given to be 1933. He was, therefore, a minor when he is said to have migrated to Pakistan in 1947. It is further pointed out that the whole tenor of the report shows-that the parents of the petitioner were Indian citizens and reside in Delhi. If he was a minor at the time he migrated to Pakistan he could not change his nationality which was Indian, it is further submitted that if, as has been alleged he has adopted Pakistani nationality when originally he was an Indian citizen, that is a matter which cannot be decided by the Courts and it is the Central Government alone that can decide whether he has lost his Indian citizenship by virtue of having adopted Pakistani nationality.

On the first point my attention has been invited to my own decision in Mohd. Rafiq v. Administration of Delhi Civil Writ No. 25-D of 1959, D/- 17-11-1959 (Punj) in which reference has been made to various text books wherein it is stated that when a person is not sui juris his domicile cannot for the time being be changed at all. In Cheshire's. Conflict of Law it is stated at page 184 that before reaching full age an infant is utterly incapable of acquiring by his own act an independent Domicile of choice and he is powerless to alter his civil status. It has been urged before me that even if it be assumed that the petitioner went to Pakistan in 1947, his domicile remained Indian and as his parents were Indian, he was a citizen of India within the meaning of Article 5 of the Constitution. A similar contention was advanced in the above case decided by me and I observed:

'There may be substance in this contention but there is another aspect of the matter which has been raised on-behalf of the respondents, namely, whether the petitioner had migrated to Pakistan after the first day of March 1947 and if he did, then he could not be deemed to be a citizen of India by virtue of Article 7 which overrides Articles 5 and 6. There is clear evidence of the petitioner having migrated in 1947 as stated in the applications for visas which the petitioner filed OR 6th February 1955 and 5th November, 1955. It is also clear that he was granted a passport by the Pakistan Government on 1st October 1954 which could only be on the footing that he was a Pakistan National, I have no doubt that prima facie the petitioner had migrated to Pakistan and could not be regarded to be a citizen of India by virtue of Article 7 of the Constitution. In these circumstances as prima facie he was not a citizen of India there was no question of the Central Government deciding first under Section 9(2) of the Citizenship Act, 1955, whether the petitioner had lost his Indian nationality or not. It was open to the petitioner to ask for such a determination but there is nothing in the petition to show that he made any application to the Central Government in that behalf.'

These observations would fully govern the facts of the present tease also as is clear from the narration given in the report under Section 173 of the Code of Criminal Procedure, the question at this stage is not to give any final decision in the matter but of seeing whether prima facie the charge was justified or not. It is undoubtedly true that according to the decision in The State of Andhra Pradesh v. Abdul Khader, AIR 1961 SC 1467 if a question arises under Section 9(2) of the Citizenship Act, 1955, as to whether an Indian citizen has acquired the citizenship of another country, the same has to be determined by the prescribed authority which is the Central Government and that question cannot be decided by the Courts. But the prosecution in the present case is depending not merely on the acquisition of Pakistani citizenship by the petitioner but on the fact that he migrated from India in the year 1947, with the result that under Article 7 of the Constitution he could not be deemed to be a citizen of India. Migration is something distinct from the act of changing one's nationality or domicile and even if a minor is not capable of changing his nationality or domicile but he can certainly migrate in the sense of going away to another country for good. Even otherwise the petitioner is stated to have come to India in 1954 and he had attained the age of majority in 1951 according to the date of birth stated in some of the documents which he filed to obtain the passport from Pakistan. If he decided to stay on in Pakistan after he attained the age of majority the intention to migrate could be proved from that fact.

According to Shorter Oxford English Dictionary, the word 'migrate' means to pass from one place to another'; intr. to move from one place of abode to another; esp. to leave one's country to settle in another'. In these circumstances there was no bar in the way of the petitioner even though he was a minor to migrate in 1947. In any case as observed before, the act of migration would become final and complete if such an intention could be established alter 1951. I am not satisfied, therefore, that the charge deserves to be quashed at this stage on the above grounds. It is nowhere alleged in the charge that the petitioner was originally an Indian citizen and he bad acquired Pakistani nationality under Section 9(1) of the Citizenship Act. Therefore, prima facie the rule laid down in the aforesaid Supreme court judgment would not be applicable.

4. The other ground on which Mr. Anthony wanted me to quash the charge is that the petitioner had previously teen tried under rules 3 and 6 of the Indian passport Rules, 1950, and had been acquitted on 31st July 1957. A copy of that judgment is not available and although I sent for the original records of that case, it has been reported that the file in question was destroyed on 26th November, 1962; Rule 3 of the Indian Passport Rules is to the effect that no person proceeding from any place outside India shall enter, or attempt to enter, India by water, land or air unless he is in possession of a valid passport confirming to the conditions prescribed in Rule 5. Rule 6 inter alia provides for the punishment for contravention of the provisions of Rule 3.

In the previous case the petitioner had been challenged for the offence that he entered India from Pakistan without a passport. The grounds on which he was acquitted are not known at all. It is quite possible that it was found tht he had entered India with a proper passport. In the report under Section 173 of the Code of Criminal procedure itself, it is stated that the petitioner had obtained a passport dated 27th March 1954 from the Pakistan Government and had obtained visas for coming to this country. Therefore, it is not possible to believe that the petitioner had been acquitted on the ground that he was an Indian Citizen and not a foreigner as has been suggested by his counsel, paragraph 7 of the Foreigners Order makes it incumbent on every foreigner who enters India on the authority of a visa issued in pursuance of the Indian Passport Act, 1920, to obtain from the Registration Officer a permit indicating the period during which he is authorised to remain in India etc. and he must leave this country before the expiry of the period mentioned in the visa. Therefore the offence for which the petitioner is being prosecuted is of a different nature altogether and it is not possible to see how the previous acquittal of the petitioner would operate as a bar to the present charge.

5. For all these reasons the petition fails and it is dismissed but I wish to make it quite clear that any observations made by me shall not prejudice the trial of the petitioner, after the evidence has been recorded in accordance with law.


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