1. This appeal is by the Superintendent and Remembrancer of Legal Affairs, Government of West Bengal, and is directed against an order of acquittal passed by Mr. J. K. Ghosh, Magistrate, 1st Class, Asansol, dated 25-4-1951.
2. Shortly stated the prosecution case is that the respondent Rab Nawaz Khan came to India from Western Pakistan on the strength of a temporary permit (ex. 1) which was valid for a period of three months from 3-4-1949, up to 3-7-1949 granted by the High Commissioner for India at Karachi and that he stayed in India after the expiry of that period; that the respondent was arrested by the Asansol Police on 12 7-1949, and could not show any valid permit. The respondent was accordingly placed on his trial on a charge under Section 5, Influx from Pakistan (Control) Act (Act XXIII of 1949) for violation of Rule 19 of the rules framed under Section 4 of that Act. That rule provides that no person holding a temporary permit shall stay in India after the date of expiry of that permit.
3. The defence does not deny that the respondent stayed in India after the expiry of the temporary permit but asserts that the respondent is a citizen of India and has a right to reside in India without any permit. It is alleged that the respondent's father Captain K. B. Md. Walait Khan was a contractor of Asansol for a considerable length of time and has landed properties at Asansol, Barakar and other places; that the respondent looks after his father's business and properties at Asansol; that the respondent had gone to Rawalpindi on a temporary visit to see his sick child and then at the time of his return to India he took a temporary permit to avoid troubles though such temporary permit was not necessary. The defence; further alleges that on 15-6-1949, the respondent applied to the appropriate authorities for a permanent permit to live in India and that on 28-12-1949, he was granted a certificate of registration as a citizen of India under Article 6 of the Constitution.
4. The trying Magistrate after a consideration of the evidence on the record has come to the conclusion that the respondent though born in Rawalpindi was brought up and educated in India and that he was serving as an officer under Messrs. Andrew Yule and Co. in India and that the respondent was a citizen of India under Articles 5 and 6 of the Constitution and, therefore, the temporary permit obtained by him was not necessary. In that view of the matter, the trying Magistrate acquitted the respondent holding that he did not contravene Rule 19. Against the aforesaid decision the present appeal has been filed.
5. Learned Standing Counsel appearing in support of the appeal has argued that under Article 394 of the Constitution, Articles 5 and 6 and some other Articles came into operation on 26-11-1949, and, therefore, the learned Magistrate was wrong in holding that at the date of the arrest of the respondent, that is, on 12-7-1949, the respondent was a citizen of India under Articles 5 and 6. It seems to us that this argument is sound and must be accepted. Article 394 of the Constitution provides that Articles 5 and 6 and some other Articles would come into operation at once, that is, on 26-11-1949 and the remaining Articles would come into operation on 26-1-1950. So, on the date of the respondent's arrest, that is, 12-7-1949, Articles 5, 6 and 7 of the Constitution were not in operation and the trying Magistrate was clearly wrong in holding that the respondent was a citizen of India under the aforesaid Articles. The certificate of registration as a citizen of India, granted by the Sub-Divisional Officer of Asansol on 28-12-1949 under Article 6(b)(ii) of the Constitution will not, therefore, protect the respondent.
6. Mr. Banerjee appearing for the respondent has invited our attention to the fact that along with his application for 'a permanent permit the respondent also filed an application for extension of his temporary permit for three months and this application for extension was pending on the date when the respondent was arrested. It was accordingly argued that the respondent committed no offence as it was the duty of the authorities to grant an. extension of the temporary permit pending consideration of the application for grant of a permanent permit. Upon an examination of the records it seems to us that the application for extension of the period of temporary permit upon which reliance has been placed by Mr. Banerjee was not made an Exhibit in the case. What was exhibited was the application for grant of permanent permit and that was marked as Ex. A. It seems to us that the application for grant of permanent permit and the application for grant of temporary permit are two separate documents -the former was exhibited in the case but the latter was not. For this reason we are unable to accept the argument advanced by Mr. Banerjee on the basis of this document. Mr. Banerjee also relied upon the case of Mubarak Hossain v. The State, : AIR1950Cal193 . That case was decided upon a construction of Rule 16-A (4) of the rules framed under Influx from Pakistan (Control) Ordinance. There is nothing corresponding to Rule 16-A (4) in the rules framed under Influx from Pakistan (Control) Act of 1949. Therefore, the aforesaid decision does not help the respondent.
7. The next question that requires consideration is whether mens rea is an essential ingredient of the offence under Section 5, Influx from Pakistan (Control) Act of 1949. The trying Magistrate has held that the fact that the respondent had applied for a permanent permit on 15-6-1949, and had been granted a certificate of registration as a citizen of India would prove the bona fides of the respondent. Mr. Banerjee has relied upon an unreported decision of this Court in the case of Bimala Kanta Ghosh v. The State, Cri. Rev. No. 1111 of 1951 (Cal.) decided by Harries C. J. and Section R. Das Gupta J. for the proposition that mens rea is an essential element of the offence under Section 5. Upon an examination of that decision, it seems to us that what was intended to be laid down in that case was that if the infringement; of the conditions of a permit is due to circumstances over which the permit-holder has no control it will not be an offence under Section 5, Influx from Pakistan (Control) Act of 1949. We are of opinion that if there is a deliberate violation of the conditions of permit without any compelling necessity it will amount to an offence under Section 5. For example, it is possible that the permit-holder was laid up with serious illness at or about the time when the temporary permit was due to expire and in these circumstances he was unable to leave India before the expiry of the permit. In those circumstances he cannot be held to be guilty under Section 5 of the Act. But if there are no circumstances which could justify the permit-holder to over-stay he can be convicted of an offence under Section 5.
In the present case it has been strongly urged on behalf of the respondent that he was living in India from his early boyhood, that he was educated, in India and was as a matter of fact serving in India as Labour Welfare Officer of Messrs. Andrew Yule & Co., and that he has his business and properties in India and moreover he had applied for the grant of a permanent permit to live in India and was as a matter of fact granted a certificate of registration as a citizen of India and in these circumstances we should hold that his stay in India after the expiry of the period of permit was not actuated by a guilty intention. We are, however, unable to go so far as to hold that the circumstances relied upon by the respondent would take the case out of the operation of Section 5 of the Act because we find that the respondent's stay in India after, 3-7-1949 was not due to any circumstances which were beyond his control. If the respondent stayed in India in anticipation of getting a permanent permit to live in India he did so at his risk. But the circumstances relied upon by the respondent can and should, in our opinion, be taken into account in considering the question of sentence, and the circumstances which have been proved by the respondent in this case would certainly make the offence alleged to have been committed by the respondent a merely technical one.
8. In this view of the matter, we allow this appeal, set aside the judgment of the trying Magistrate and convict the respondent under Section 5, Influx from Pakistan (Control) Act of 1949. But on account of the circumstances referred to above we sentence the respondent to pay a nominal fine of Rs. 5, in default to rigorous imprisonment for three days.
9. I agree.