1. This Rule was issued at the instance of two persons who have been convicted by a Presidency Magistrate of Calcutta under Section 4, Influx from Western Pakistan (Control) Ordinance, 1948, and Rule 12, Permit System Rules, 1948, framed thereunder, each being sentenced to pay a fine of Rs. 200, in default to suffer rigorous imprisonment for three months.
2. As far as the facts are concerned, on 18th October 1948, the petitioners went from Calcutta to Delhi and then on 23rd October 1948, they went to Lahore from Delhi under Temporary Business Permits NOS. 210 and 211 granted by the High Commissioner for Pakistan, in India at New Delhi. They wanted to return and on 2nd November 1948 they were granted two Temporary Permits being Nos. M. B. 28650 and 28651 by the Deputy High Commissioner for India in Pakistan at Lahore in which the object of the visit was stated to be 'returning back to Calcutta: pending verification,' and these permits were made valid for two months. It is not disputed that the petitioners did not return to Western Pakistan after two months.
3. Various questions have been raised by Mr. Sen appearing on behalf of the petitioners relating to the powers of the Governor General to pass the Ordinance and also the different Ordinance subsequently passed and the retrospective operation of the different clauses, but in view of our decision in the present case, we do not intend to express any opinion whatever either on this point or on the actual question of facts. It appears that the petitioners are convicted for violation of the Rules framed under the Ordinance then in force or even as subsequently modified so far as it relates to the case of the petitioners. The Rules then in force were the Rules published in the Gazette of India (Extra-ordinary), first on 14th September 1948 and then amended on 4th October 1948. Of the Rules published in the Gazette on 14th September 1948, Rule 3 speaks of three kinds of permits of which No. 1 is permit for temporary visits and under Rule 12 it was laid down that no person holding a temporary permit shall stay in India after the date of expiry of such permit. Then on 4th October 1948 (published in the Gazette of India on 7th October 1948) Rules 12A and 16A were added. Rule 12A enables a permit-holder to apply to the Superintendent of Police of the district to extend the period of the permit by such number of days not exceeding 20 days as may be necessary on account of circumstances over which the permit-holder has no control. This obviously refers to such temporary permit holders who are in India from Western Pakistan for a temporary purpose and not permanently to India after a temporary sojourn in Pakistan. In such a case, it would appear he may, if circumstances are such that he had no control over them, get an extension only for a period of 20 days from the Superintendent of Police.
4. The case of a person who wants to return to India claiming that he is domiciled here and was only staying on a temporary visit to Pakistan was provided for in Rule 16A. That Rule pro-vided for the High Commissioner or the Deputy High Commissioner to grant him the necessary permit to return permanently here, but in case the authority was not satisfied, he may grant a temporary permit which is to be for a period long enough for the authority to receive a report from India as to the desirability or otherwise of the person being allowed to return permanently here. It is provided in Rule 16A (4) that if necessary the period of such temporary permit can be extended from time to time. This obviously means that if the enquiry has not been completed by the High Commissioner or the Deputy High Commissioner he may automatically extend the period. This has got nothing to do with the permit-holder, as under the next clause, Clause 5 of Rule 16A, it is the duty of the High Commissioner or the Deputy High Commissioner to send an intimation to the Superintendent of Police of the district where the applicant is for the time being staying that his application has been refused and that the applicant should return to Pakistan on the expiry of the period of the temporary permit held by him. It has to be connected, as we have said, with the previous clause, Clause 4, which shows that the High Commissioner or the Deputy High Commissioner must finish the enquiry before the expiry of the period of the temporary visit and should communicate the result and ask the person to return and in case this cannot be done there is this provision for extension as we have said, i.e., for automatically extending the period of the temporary permit and in such a case when permission permanently to return to India is refused, the High Commissioner or the Deputy High Commissioner will intimate such refusal to the applicant through the District Superintendent of Police as also the extended date by which he is required to return to Pakistan. There is no provision for intimation or granting of the application. In the present case as the object of the visit is to return to Calcutta and no other temporary object of Visit is shown, it is written there that this is pending verification, the petitioners are entitled to claim that their case was under Rule 16A and this point had not been gone into in the Court below. This is a matter which cannot be decided without evidence and the evidence must be given by the prosecution before the Chief Presidency Magistrate as to whether the application was made to the High Commissioner or the Deputy High Commissioner for India in Pakistan only under Clause (12) for a temporary visit or under Clauses (16) or (16A) for the purpose of return to India permanently of a person who claims to be domiciled in India and had been only on a temporary visit to Pakisthan. The Court will then consider on the evidence how the law is to be applied.
5. The conviction and sentence are, therefore, set aside and the Rule is made absolute and the case remanded to the Presidency Magistrate for further enquiry in the light of this judgment. The fine, if paid, will be refunded.