1. This is an application to quash, certain proceedings now pending before a Presidency Magistrate.
2. The petitioner is one Nazir Hussain, a Mahomedan by birth. According to the prosecution he is a Pakistani national and was given a permit to visit India for one year. The permit it is said expired on 21-2-1951 and he was found living in Calcutta in April of this year. Overstaying this permit is claimed to be an offence under Section 5 Influx from Pakistan (Control) Act, Act XXIII of 1949.
3. The whole prosecution is based upon the failure to return to Pakistan at the conclusion of the period permitted by this permit. The case for the defence apparently is that Nazir Hussain is an Indian national and required no permit at all to (visit India and never asked for this permit which is tile basis of tins prosecution.
4. In these proceedings I am not concerned with whether Nazir Hussain is an Indian or a Pakistani National and I express no opinion whatsoever upon the question. However, I am satisfied that no charge can possibly be made upon the basis of the permit which has been put forward in this case.
5. The case has proceeded for sometime and the learned Presidency Magistrate has framed a charge to which the petitioner has pleaded not guilty. It will be convenient to set out the charge in extenso:
'Accused Nazir Hussain is charged under Section 5, Influx from Pakistan (Control) Act, (Act XXIII of 1949) for contravening after having entered India, the provision of Rule 19 of the Rules regarding permit system introduced between Western Pakistan and India, by staying in India from 7-4-1951 to 14-4-1951 in violation of the permit (Ext. 2) issued to him by the High Commissioner for India in Pakistan and duly served on him on 7-4-1951'.
6. It is common ground that this permit was not served upon the petitioner until 7-4-1951. Yet it is suggested on behalf of the prosecution that it was a permit allowing the petitioner to visit India between 22-2-1950 and 21-2-1951. Of what use this permit was I cannot imagine if it was only served on April 5, (7?) 1951, that is a matter of over six weeks after the period of the permit had expired. One would have imagined that a permit given to a man to visit India for a year would at least be served upon him sometime before the commencement of the period for which he was permitted to visit India. This is a most extraordinary document which was served on the petitioner six weeks or so after the period for which he was permitted to reside in India had expired.
7. The permit Ex. 2 is to say that least of it balderdash. No other word can express what this document really amounts to. It is headed as a temporary permit for entering the Indian dominion. There is in this printed document a space in which there is to be filled up the purpose of the visit and the place to be visited. What is written opposite the purpose of the visit and the places to be visited are these words: 'Returning to business in Chiniot'. The duration of the visit is said to be one year. This document purports to have been issued by the High Commissioner for India at Karachi. There is a line on the document on which the applicant for such a permit should sign. But this permit has no signature of the petitioner Nazir Hussain or indeed of any applicant. How therefore this permit came to be issued is a complete mystery. If any application had to be made for it then that application has not been produced.
8. The permit on the face of it is a permit permitting Nazir Hussain to return to business in Chiniot and to remain there for one year. Everybody knows that Chiniot is a town in the Western Punjab in tne Jung District, if I remember correctly. So this permit allows Nazir Hussain to spend a year at Chiniot. On the permit are printed these words 'Tne applicant whose details are given above is permitted to stay in India for the purpose specified above from 22-2-50 to 21-2-51'.
9. Mr. Sankar Banerji, standing Counsel, has urged that, that shows clearly that this is a permit granting permission to stay in India. But the whole sentence has to be read together and when the whole thing is read together it means that this permit permits Nazir Hussain to stay in India for the purposes of visiting a town in Pakistan for one year. 'Balderdash' appears to me to be a polite term for such a document. It is for breach of this permit that the petitioner is prosecuted. I do not know what the prosecution would have to prove to establish a breach of the terms of this document. It appears to me that they would have to show that the petitioner stayed in Chiniot in Pakistan for more than a year. But of what interest that can be to the State of West Bengal I cannot imagine. It would be no breach of this permit to show that he had stayed the whole of this period in Calcutta as it is alleged that he had.
10. The petitioner's case is that he never asked for this permit & never received a permit to go to Chiniot and was never out of Calcutta throughout 1949, 1950 and 1951. However I am not deciding this case upon any statement of fact made by the petitioner. All I say is that on the face of this document it cannot possibly be said that there has been any breach of this Act or any rule by failing to leave India on 21-2-1951 or soon thereafter. In the body of the document the place he was called upon to leave after a year was Chiniot, but not Calcutta and reading the document as a whole it must be held that a permit was solemnly issued by the High Commissioner of India at Karachi permitting a person to stay in the Punjab for a year and year only which means that he would have to quit the Punjab after that time. How any officer of the Indian Government can grant permits permitting persons to reside in a foreign country I am unable to understand. But that is the document as it is written.
11. In my view no charge can be framed on this document and as the charge as drafted is based upon it the whole proceedings must be quashed.
12. If the petitioner is a Pakistani national, a point upon which I express no opinion whatsoever, then it would appear that he was residing in India without any permit at all. Such a case, even if established, could never be made on the charge as framed and therefore the charge must be quashed. What other proceedings can be taken is a matter which does not concern the Court at the present moment.
13. In the result therefore the petition is allowed. The proceedings now pending before the Presidency Magistrate are quashed and the Rule is made absolute. The petitioner is discharged. He need not surrender to his bail and his bail is cancelled.
G.N. Das, J.
14. I agree.