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Hari Khan and anr. Vs. the State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtRajasthan High Court
Decided On
Case NumberS.B. Cr. Revision No. 417 of 1967
Judge
Reported in1968WLN8
AppellantHari Khan and anr.
RespondentThe State
DispositionPetition dismissed
Cases ReferredThe State v. Abdul Hamid and Anr.
Excerpt:
.....section 9--section deals with citizenship after commencement of the constitution--persons who left india for pakistan in 1947 not governed by section 9.;(b) foreigners act, 1946 - section 9--whether a person is or is not foreigner--burden of proof is on such person.;(c) indian consitution - article 7--minor--nationality of.;where a minor migrates to pakistan along with his father, the father does not have indian nationality under article 7 of the constitution and the minor son also must be taken to have acquired the nationality of his father. he cannot retain india nationality unless he comes to this country for permanent settlement under permit system rules. - section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice..........rules 1950, made by sub-divisional magistrate, deeg.2. the prosecution story is that the accused hari khan left india sometime in the year 1947 for pakistan he came back to india with his son hakim with passport no ssc-008225, dated august 20, 1956 and visa no. 156050, dated december 26, 1960. his entry into india was recorded at the check-post-riilway station, amritsar, on february 8, 1961 vide entry no. 2/247-c. residential permit no. dsb/bpr/rp/51, dated february 10, 1961, was issued to him from the office of the superintendent of police, bharatpur, as required under para 7 of the foreigners order, 1948, authorising him to stay in the village faraska, police station, nagar, upto may 6, 1961. before the expiry of this period both the petitioners left india for pakistan on april 7,.....
Judgment:

L.S. Mehta, J.

1. This is a criminal revision filed by Hari Khan and his son Hakim Maeos against the judgment of learned Sessions Judge, Bharatpur, dated October 25, 1967, maintaining their conviction under Section 14 read with Section 3 of the Indian Foreigners Act, 1946, as also under Rule 6 read with Rule 3 of the Indian Passport Rules 1950, made by Sub-Divisional Magistrate, Deeg.

2. The prosecution story is that the accused Hari Khan left India sometime in the year 1947 for Pakistan He came back to India with his son Hakim with passport No SSC-008225, dated August 20, 1956 and visa No. 156050, dated December 26, 1960. His entry into India was recorded at the Check-post-Riilway Station, Amritsar, on February 8, 1961 vide entry No. 2/247-C. Residential permit No. DSB/BPR/RP/51, dated February 10, 1961, was issued to him from the office of the Superintendent of Police, Bharatpur, as required under para 7 of the Foreigners Order, 1948, authorising him to stay in the village Faraska, Police Station, Nagar, upto May 6, 1961. Before the expiry of this period both the petitioners left India for Pakistan on April 7, 1961: vide exit entry dated April 7, 1961, made at the Amritsar Railway Station, Check post, on the back of Ex. P. L, Later on, in September, 1964, Hari Khari and his son Hakim were found living in village Faraska, within the jurisdiction of the Police Station, Nagar, District Bharatpur. They had no valid travel documents with them. They were prosecuted in the court of Sub-Divisional Magistrate, Deeg, on a challan put up by the Police. They were convicted under the said provisions of laws and were sentenced to undergo 7 days simple imprisonment and to pay a fine of Rs. 25/-, each, in default of payment of fine to further suffer simple imprisonment for a period of 3 days. It was further directed that the petitioners, should be deported to Pakistan. An appeal is filed against the above judgment in the court of learned Sessions Judge Bharatpur, but the same was dismissed. Hence this revision.

3. The only contention raised on behalf of the petitioners is that under Section 9(2) of the Citizenship Act, 1955, read with Rule 30 of the Citizenship Rules, 1956, the authority to determine the question whether, when or how the accused acquired the citizenship of Pakistan was the Central Government. Here as the Central Government has not yet decided whether or not the petitioners acquired the citizenship of Pakistan, the court of Sub-Divisional Magistrate had no jurisdiction to deal with the matter.

Article 7 of the Constitution of India reads as follows:

Notwithstanding anything in Articles 5 and 6 a person who has after the first day of March, 1947, migrated for the territory now included in Pakistan shall not be deemed to be a citizen of India....

It has been proved in the present case by the prosecution that the petitioner Hari Khan had gone to Pakistan in the year 19 7 after the partition of India He will, therefore, not be deemed to be a citizeu of India under Article 7 of the Constitution quoted above. Article 11 of the Constitution lays down that Parliament is empowered to make provision with regard to the acquisition and termination of citizenship and all other matters relating to citizenship. By virtue of this constitutional power, Parliament enacted the Cititzenship Act, 1955, to supplement the provisions of the Constitution. The Act provides for the acquisition of citizenship after the commencement of the Constitution by birth, descent, registration, naturalisation, and territory. It also makes provisions for the termination and deprivation of citizenship under certain circumstances. Section 9 of the Citizenship Act deals with the citizenship after the commencement of the Constitution and has got nothing to do with the citizens who had left India for Pakistan prior to that date. It has been observed in State of Madhya Pradesh v. Peer Mohammed : AIR1963SC645 that it is only the person, who had migrated before the commencement of the Constitution, that would fall within the scope of Article 7. Article 7 refers to migration which have taken place between 1st March, 1947, and January 26, 1950. The question about the citizenship of persons migrating to Pakistan from India after January 26, 1950, will have to be determined under the provisions of the Citizenship Act, 1955 The same view was reiterated in Abdul Sattar Hiji Ibrahim Patel v. State of Gujrat : AIR1965SC810 , in which it was observed that cases in which migration has taken place after January 25, 1950, would be considered to have fallen under Article 9 of the Constitution. These view were re-affirmed in a later decision of the Supreme Court, reported in Kulathil Mammu v. State of Kerala and Ors. : 1966CriLJ1217 ,. In para 13 of the judgment, it is given that cases of voluntary acquisition of foreign citizenship after the commencement of the Constitution have to be dealt with by the Government of India under the Citizenship Act, 1955.

4. Coming now to the facts of the present case it is obvious that the petitioner Hari Khan voluntarily entered the territory of Pakistan in the course of partition of India during the year 1947 His case, therefore, is not governed by Section 9 of the Indian Citizenship Act, 1955, as that section would apply only with respect to the persons who migrated from India after January 26, 1950, and not with respect to those persons who migrated prior to the promulgation of the Constitution. In that view of the matter, the petitioners cannot be heard to say that their case should be determined in accordance with the provisions of Section 9 of the Citizenship Act In other words, judicial courts are empowered to decide the question whether the petitioners are Indian citizens or foreigners, and Section 9 of the Citizenship Act, 1955, will not stand as a bar to it.

5. It is in the prosecution evidence that the petitioner Hari Khan made an application for a visa for India wherein he mentioned that he was a Pakistan national and that he wanted to go to India at Faraskato see his father-in-law, Chote Khan. He also referred in column No. 10 of his application his passport No. PSC-008225, dated August 29, 1956, issued by the Pak Government.

On receipt of that application the High Commissioner of India in Pakistan issued a visa No. 156050 dated December 26, 1960. The visa bears the photo of Hari Khan. The relevant entry of the arrival of Hari Khan is made in the Register Form No. 1 meant for the entry of Pakistan nationals at P.C.P. Amritsar, vide Ex P 5, Residential permit No. DSB/BPR/RP/51 dated February lo, 1961, was issued from the office of the Superintendent of Police, Bharatpur, in favour of Hari Khan by which the pelititoner was permitted to remain in village Faraska until May 6, 1961 It is mentioned in the residential permit that Hari Khan was accompnied by his son Hakim Khen, aged II years. On the back of this document there is an entry of the Police Station concerned about the arrival and departure of the petitioners. There is also an exit entry of the Amritsar Railway Station Check-post, dated April 7, 1961. From all these documents, read with the statements of the prosecution witnesses, it is plain, beyond any manner of doubt, that Hari Khan and his son Hakim Khan are not the Indian nationals. The contention of the petitioners is that they are Indian citizens and had never domiciled in Pakistan. In deciding the question as to whether the petitioners were Indian citizens within the meaning of Article 5 of the Constitution, the onus of proof was on them to show that they were domiciled in India, In this connection, the petitioners examined 3 witnesses, Chote Khan, D. W. 1, Yashin, D.W. 2. and Chahat. D.W. 3. Their evidence, being vague, has not been relied upon by the trial court. There is no reason why a contrary view should be taken in the matter.

6. In this connection, it may be stated that cases of Indian citizens acquiring any citizenship of a foreign state are dealt with by Article 9 of the Citizenship Act. 1955. If the foreign citizenship has been acquired before January 29.1950 Article 9 would apply. Articel 9 provides that no person shall be a citizen of India by virtue of Article 6 or Article 8 if he has voluntarily acquired the citizenship of any foreign state If foreign citizenship has been acquired between January 26, 1950, and, the enforcement of the Citizenship Act, 1955, the case would be governed by the provisions of the Citizenship Act : vide Izhar Ahmad Khan and Ors. v. The Union of India and Ors. : 1966CriLJ1217 . The question about citizenship and migrating from India to Pakistan before January 26, 1950, has to be determined under the Foreigners Act, 1946. Under Section 9 of the Foreigners Act, if any question arises with reference to the Act or any order made or any direction given thereunder, whether any person is or is not a foreigner, the onus of proving that such person is not a foreigner, shall, notwithstanding any thing contained in the Indian Evidence Act, 1572, lie upon such person. As has already been stated above, the petitioners have failed to prove that they are the Indian citizens. They have, therefore, rightly been convicted under Section 14 read with Section 3 of the Foreigners Act, 1946. They also contravened the provisions of Rule 6 lead with Rule 3 of the Indian Passport Rules, 1950, for entering India without a valid passport, conforming to the conditions prescribed under Rule 5.

7. Before I part with this case, I may state that according to the International Law, a child acquires nationality of his parents Where a minor migrates to Pakisthan along with his father, does not have Indian nationality under Article of the Constitution and the minor son also must be taken to have acquired the nationality of his father. Apparently, he cannot retain Indian nationality unless, according to the permit system rules he comes to this country with a permit for permanent settlement or residence : vide The State v. Abdul Hamid and Anr. AIR 1963 Punj 86. In this case it has been proved by the prosecution that Hari Khan left India for Pakistan at the time of its partition, i.e., somewhere in the year 1947-In the residential permit dated February 10,1961, Hakim's age is mentioned 11 years. That shows that Hakim was not born in India and he must have been born in Pakistan. It cannot, there fore, be said that he is an Indian citizen by virtue of birth.

In the result, this revision-petition having no force stands dismissed.


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