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Mehraj Mohammed Vs. State of Rajasthan and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtRajasthan High Court
Decided On
Case NumberD.B. Criminal Misc. Habeas Corpus Application No. 360 of 1971
Judge
Reported in1972WLN544
AppellantMehraj Mohammed
RespondentState of Rajasthan and anr.
DispositionPetition dismissed
Cases Referred and State of U.P. v. Rahmatullah
Excerpt:
.....gone to pakistan from where he came to india on a temporary permit. it is for him to show that his visit to pakistan did not amount to migration at all but was only a temporary sojourn or a temporary visit to meet friends. in the alternative he will have to prove that the alleged migration to pakistan did not take place during the relevant period that is after 1-3-1947 and before 26-1-1950. in either case the onus of proof will be on the petitioner. - section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986, section 2(h): [altamas kabir & cyriac joseph, jj] determination as to juvenile - appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - appellant was..........one may be justified to infer that the petitioner is a citizen of pakistan and was permitted to visit india and stay here for 21 days, the purpose of his visit being to take his wife with him to pakistan. the permit is of course silent as to when the petitioner had migrated to pakistan. to substantiate his case the petitioner has filed affidavit of hanoo, uda, abdul aziz and gulam mohammed to the effect that the petitioner was residing in banswara on 26.1.1950 when the constitution of india was promulgated. these affidavits are however silent as to when the petitioner went to pakistan. there is no other document to show that the petitioner had gone to pakistan after 26.1.1950. we are, therefore, unable to record a finding that the petitioner went to pakistan after 26.1.1950 and not.....
Judgment:

C.M. Lodha, J.

1. This is a petition for issue of a writ of habeas corpus under Article 226 of the Constitution of India read with Section 491 Cr. P.C. The petitioner Mehraj Mohammed's case is that he was born and brought up in Banswara (Rajasthan) and had remained in the service of the erstwhile State of Banswara in the Settlement Dept. from 16 4.45 to 7.4.47. It is alleged that he had at no time migrated to Pakistan but that alter coming into force of the Constitution of India, he went, to West Pakistan in June 1950 to meet some friends there and came back to India on 25 9.1950 on the basis of temporary permit which he was forced to obtain in the circumstances then prevailing in both the countries namely India and Pakistan. He has further alleged that after coming back to India he was appointed as Ameen in the Settlement Department of the Government Rajasthan and was posted at Bhilwara on 17.5.1952 and was subsequently confirmed in this post on 6 3.1968. He was arrested on 24.1.1971 in pursuance of the order dated 24.1.1971 passed by the District Magistrate, Bhilwara in exercise of his powers under Section 5 of the Foreigners (Internment) Order, 1962. The petitioner's complaint is that the impugned order of arrest and detention passed by the District Magistrate, Bhilwara (a copy of which has been placed on the record and marked annexure 3) is ultra vires, illegal and void because the petitioner is neither a Pakistan National, nor a foreigner, but is a citizen of India.

2. The petition has been opposed on behalf of the State of Rajasthan which has also filed a written reply. The case put forward by the State is that the petitioner migrated to Pakistan on partition of the country and after having acquired the citizenship of Pakistan, he came to India on a temporary permit to take his wife, who was living in Kota, to Pakistan. It has been urged that the petitioner is a Pakistan National as described in the impugned order of detention (Annexure 3), and that he has been detained in the public interest as an internee.

3. In order to appreciate the contention raised on behalf of the petitioner it would be necessary to refer to the relevant provision of the Foreigners (Internment) Order, 1962. In para 2 of this order 'Internee' has been defined as any person arrested or liable to arrest under paragraph 5 of the Order. Chapter II of the Order deals with the internment of certain persons. Paragraph 3 under this Chapter reads as under:

3. Application of chapter -This chapter shall apply to and (in relation to any national of Pakistan and to any other foreigner) who is and any person who, or either of whose parents, or any of whose grand-parents was at any time a citizen or subject of any country at war with, or committing external aggression against, India or of any other country assisting the country at war with, or committing such aggression, against India.

4. Paragraph 5 of the same Chapter makes provision for arrest and internment of certain persons:

5. Arrest and internment of certain persons.-(1) The Civil authority for any area may arrest or cause to be arrested any person to whom this chapter applies in that area:

Provided that nothing in this sub-paragraph shall, except by an express direction of the Central Government, apply to, or in relation to, any such person employed in a diplomatic or cons(SIC)l or mission in India or the wife or any child of any such person.

5. The argument of the learned Counsel for the petitioner is that the petitioner did not migrate from the territory of India to the territory now included in Pakistan after the 1st day of March, 1947, and before the coming into force of the Constitution of India, and consequently it cannot be presumed that he has ceased to be a citizen of India as envisaged by Article 7 of the Constitution. It is contended that under Sub-section (2) of Section 9 of the Citizenship Act. 1955, if any question arises as to whether, when or how any person has acquired the citizenship of another country, it shall be determined by such authority, in such manner and having regard to such rules of evidence as may be prescribed in this behalf. The argument further proceeds that unless the question of the petitioner's termination of citizenship is first determined by the Central Government which is the prescribed authority under Section 9 of the Citizenship Act, the petitioner cannot be treated as a Pakistan National or a foreigner and Chapter II of the Foreigners (Internment) Order, 1962 can have no application to him. In support of his contention learned Counsel has relied on State of Andhra Pradesh v. Abdul Khader : 1961CriLJ573a , Md. Ayub Khan V. Commissioner of Police, Madras and Ors. AIR 1065 SC 1623, and State of U.P. v. Rahmatullah : 1971CriLJ1103 .

6. The first point for determination, therefore, is whether the petitioner went to Pakistan before the coming into force of the Constitution, that is, 26 (SIC) 1950 or at any time between 26.1.1950 and the commencement of the Citizenship Act, 1955, that is 13.12.1955. The petitioner has not given the date or month of his going to Pakistan. He has stated in para No. 6 of the petition that he went to West Pakistan to meet some friends in the middle of year 1950. The State, on the other hand, has denied this allegation and has pleaded that the petitioner had migrated to Pakistan consequent to partition of India. The temporary permit on the basis of which the petitioner came to India on 25.9.1950 inter alia contains the following details and conditions:

Full address C/O Dost Mohd., D.O. Saloji Building; Flat No. 2in Pakistan near Jaid Manji' Bunder Rd., KarachiPurpose of visit To bring wifeDuration of visit 1.10.1950 to 21.10.1950....CONDITIONS1. The permit holder must proceed and return via Bombay Fort check post direct to and from the place of visit in India stated in the permit and report his arrival to the nearest Police Station when departing for Pakistan, the same Police Station must be informed.

2. If the permit holder wishes to visit other places in India he should obtain permission of the Superintendent of Police of the place first visited and where after intimate his arrival and departure at each place visited at the nearest Police Station

3. At the time of re-entry into Pakistan permit, should be surrendered to the India check post.

7. From the aforesaid contents of the temporary permit, one may be justified to infer that the petitioner is a citizen of Pakistan and was permitted to visit India and stay here for 21 days, the purpose of his visit being to take his wife with him to Pakistan. The permit is of course silent as to when the petitioner had migrated to Pakistan. To substantiate his case the petitioner has filed affidavit of Hanoo, Uda, Abdul Aziz and Gulam Mohammed to the effect that the petitioner was residing in Banswara on 26.1.1950 when the Constitution of India was promulgated. These affidavits are however silent as to when the petitioner went to Pakistan. There is no other document to show that the petitioner had gone to Pakistan after 26.1.1950. We are, therefore, unable to record a finding that the petitioner went to Pakistan after 26.1.1950 and not between 1.3. 1947 and 26.1.1950.

8. It may be observed that the civil authority namely the District Magistrate, Bhilwara has treated the petitioner as a Pakistan National, and not a citizen of India. The temporary permit on the basis of which he has come to India from Pakistan does give an indication that he had acquired the citizenship of Pakistan. The onus therefore lies on him to prove that he is not a foreigner but is a citizen of India. There is no doubt that the petitioner was originally a citizen of India and then had gone to Pakistan from where he came to India on a temporary permit. It is for him to show that his visit to Pakistan did not amount to migration at all but was only a temporary sojourn or a temporary visit to meet friends. In the alternative he will have to prove that the alleged migration to Pakistan did not take place during the relevant period that is after 1.3.1947 and before 26.1.1950. In either case the onus of proof will be on the petitioner. A temporary permit on the basis of which the petitioner has come back to India from Pakistan is prima facie evidence to show that he had gone to Pakistan, and had come to India after the commencement of the Constitution only for a temporary visit and for a specified purpose. In this view of the matter we are unable to hold that the petitioner is a citizen of India and that he has been wrongly treated as a Pakistan National by the District Magistrate, Bhilwara.

9. The authorities relied upon by the learned Counsel for the petitioner pertain to cases where the person concerned had admittedly left India after 26.1.1950 and the stand taken by the opposite party was that the person had acquired the citizenship of Pakistan after 26.1.1950. Moreover, Abdul Khader and Rahmatullah's cases referred to above were of convictions under the Foreigners' Act and Mohammad Ayub Khan's case was under the Citizenship Act. In our opinion the principles laid down in these cases have no application to the facts and circumstances of the case on hand which is one under the Foreigners (Internment) Order, 1962. Besides, if the petitioner thinks that his case is governed by Section 9 of the Citizenship Act it is open to him to get the question of his citizenship decided by making appropriate application in accordance with law to the authority concerned under the Citizenship Act, 1955. It is true that the question whether the petitioner having once been an Indian Citizen has renounced that citizenship and acquired a foreign nationality at any time between 26.1.1950 and the date of commencement of the Citizenship Act, 1955, i. e. 30.12.1955 is within exclusive jurisdiction of the Central Government to decide. But for the decision of this writ application all that we have to see is whether the petitioner prima facie is an Indian citizen or a foreigner or for the matter of that a Pakistan National. It is not the petitioner's case that the impugned order has been passed against him by the authorities concerned on account of any malice or personal ill will. On the prima facie evidence which has been placed before us by both the parties we are unable to hold that the petitioner is not a Pakistan National and the authority concerned had no jurisdiction to pass an order against him under paragraph 5 of the Internment Order by treating him as a Pakistan National. As a necessary corollary it cannot be held that the petitioner's arrest and detention are illegal.

10. This petition has, therefore, no force and is hereby dismissed.


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