1. This is an appeal from the Judgment and order of Banerjee, J., dismissing the appellant's application under Article 226 of the Constitution by refusing to issue a Rule. The substantial relief which the appellant sought to obtain in the said application was for cancellation of the order dated 20th March, 1965, passed by Sri. S. Neogi, Sub-divisional Magistrate, Kandi, District Murshidabad. The circumstances under which the said order was made are stated as below :--
2. The appellant was born in the ancestral home at Telduma, P.S. Barwan, Murshidabad on April 1, 1937. After finishing his primary education at Sabolda, he continued his studies at Panchthupi T.N. Institution in Murshidabad from 1947 to 1950. He appeared in the Matriculation examination from the Panchthupi T.N. Institution in 1951 but failed to pass. The same year he was taken to Pabna, East Pakistan by his elder brother who was serving in Pabna District Board as a clerk, for educating him at Pabna. In 1953, the appellant passed the Matriculation Examination at Pabna and thereafter was admitted in the Intermediate course in Science in Edward College, Pabna. But he having failed to pass the Intermediate Examination and on account of the deteriorating health of his aged father, decided to return to his village home in West Bengal. According to the appellant, he duly applied for an Indian Passport, but before he could obtain it he received the news of his mother's serious illness and applied for a Pakistani Passport which he ultimately got on June 6, 1957. As his father was not in good health and also at the desire of his mother he was married at village Khanji, P.S. Ketugram, District Burdwan. According to the appellant, immediately on his arrival in India towards the end of 1960 his father took his Pakistani Passport from him and surrendered the same in the office of the Deputy High Commissioner for Pakistan at Calcutta on his behalf. In 1962 his father died leaving substantial immovable property in West Bengal. According to the appellant, the local Police of the D. I. B. wanted him to file an application under Section 5(1)(a) of the Indian Citizenship Act 1955, but the appellant refused to do so as he claimed to be an Indian National by birth. The appellant, therefore, made an application to the Deputy Secretary, Home (Passport), Writers' Buildings, Calcutta, on 4th March 1965 for determination under Section 9(2) of the Citizenship Act, 1955. Copies of the said application were sent to the Superintendent of Police, D. I. B., Murshidabad and District Magistrate, Murshidabad. Thereafter, R. Mukharji, Officer-in-Charge, Burdwan Police Station, District Murshidabad, Respondent No. 3, on the basis of his first information report dated 18th March 1965 framed a charge against him on the same day under Section 14 of the Foreigner's Act for contravention of Section 3(2)(a)(b) of the Foreigner's Act 1946. It may be stated here that the usual notice to quit India was not issued at all. On March 20, 1965 the said Sri. S. Neogi, Respondent No. 2 passed an order for simultaneously issuing warrant of arrest, proclamation and attachment against the appellant on the basis that the appellant was a Pakistani National and was residing illegally in West Bengal since 1960. On the basis of the said order, Respondent No. 3, seized appellant's cattle numbering 11 on 22nd March 1965 during the temporary absence of the appellant. On March 30, 1965 the appellant moved the said application under Article 226 before Banerjee, J., which was rejected ex parte. The same day he filed the present appeal and obtained the necessary directions from the Hon'ble Chief Justice and Mitter, J., for filing paper books by 7th May 1965. The said appeal was assigned by the Hon'ble Chief Justice to this Bench for expeditious hearing. According to Md. Ali, learned Advocate for the appellant, the appellant on the basis of some observations of the Chief Justice surrendered himself before the S. D. O., Kandi on April 19, 1965 with an application for bail, but the learned S. D. O. refused to grant him bail on the ground that he would go away to Pakistan. On the 21st April, 1965, the appellant moved the Sessions Judge, Murshidabad who also rejected the bail application by simply endorsing the view of the S. D. O. On May 3, 1965 the applicant who is still in jail custody moved an application before us. But the said application was dismissed on the ground stated in the said order.
3. Mr. Ali contends that the said order dated 20th of March 1965 passed by Respondent No. 2 is illegal and should be quashed on the following grounds :--
(a) The appellant left for Pakistan at the age of 14 in 1951 when the passport system between India and Pakistan was not introduced.
(b) He, having failed to pass his examination in Murshidabad, went to Pakistan only for the purpose of getting education.
(c) On 26th January 1950 he was an Indian National by birth and had an Indian domicile and since then he has not voluntarily acquired new nationality nor has ever intended to migrate to or settle in Pakistan permanently.
(d) He belongs to West Bengal and all his relations including his parents and wife and children are Indian nationals and are residents of West Bengal. His name has duly been recorded as a voter under the Representation of the People's Act in the voters' list of Khargram Assembly Constituency in all the general elections held after independence to the West Bengal Legislative Assembly and India Parliament. The sitting Prodhan of Sabaldha Anchal Panchayat who knows the appellant and his family has given a certificate to the effect that he is by birth an Indian citizen. He has his properties in the State of West Bengal and has been duly paying rents and taxes to the authorities concerned.
(e) At the request of his aged father and on account of serious illness of Ms mother, he obtained Pakistani Passport on June 6, 1957 only for the purpose of crossing the border.
(f) As he has not left India before 26th of January 1950, Article 7 of the Constitution does not apply to him. Article 9 also of the Constitution has no application in his case because he has not voluntarily acquired citizenship of any foreign State.
(g) In any event, as the question has arisen as to whether the appellant has acquired the citizenship of Pakistan or not, it can only be determined by the Central Government in accordance with Section 9(2) of the Citizenship Act read with Rule 30 and no other authority has jurisdiction to determine such question of nationality. Accordingly, the learned S. D. O. of Kandi has no jurisdiction to take cognizance of a criminal proceeding against him and to make the said order dated -20th of March 1.965.
(h) The Respondent no. 2 has acted mala fide in passing the said order dated 20th March 1965 inasmuch as, no order to quit India has been served on him and he acted contrary to Sections 87 and 88 of the Code of Criminal Procedure by issuing warrant of arrest, proclamation and attachment simultaneously against him.
4. In support of his contention that the learned trial Magistrate has no jurisdiction to pass the said order dated 20th March 1965 as set out in ground No. (g) above, Mr. Ali has relied upon several Supreme Court decisions. The first case he has cited is State of Andhra Pradesh v. Abdul Khader, : 1961CriLJ573a where it has been held, inter alia, that the Pakistani Passport obtained by the respondent in that case in Pakistan would not be the conclusive evidence for the conclusion that he was a Pakistani national. The mere fact that an Indian citizen has acquired a Pakistani Passport for the purpose of returning to India cannot lead to the conclusion that such a person has renounced his Indian nationality and Indian domicil. But the facts of that case show that a quit order was passed by the Government of Andhra Pradesh requiring the affected person to leave India and as the respondent did not leave India as directed by the said order he was prosecuted and convicted under Section 14 of the Foreigner's Act 1946. The parties there were given opportunities to adduce evidence before the Judicial Magistrate of Adoni in the State of Andhra Pradesh and on the basis of such evidence the Judicial Magistrate came to the conclusion that he was a Pakistani national. In the next case Izhar Ahmad Khan v. Union of India : AIR1962SC1052 , the Supreme court in coining to the conclusion that Rule 3 of Schedule III to the Citizenship Rules 1956 is not ultra vires Section 9(2) of the Citizenship Act 1955, has by a majority of 3 to 2 held that the determination of the question whether the appellant was an Indian or a Pakistani national could only be made by the Central Government after enquiry under Section 9(2). But the facts of that case are distinguishable inasmuch as there the impugned order was in the nature of it quit order passed under Section 3(2)(c) of the Foreigners Act 1946 and no charge-sheet was framed under Section 14 of the Foreigner's Act, 1946 nor any proceeding under the said section was commenced. There was no question of adducing, any evidence in a pending proceeding before a Magistrate in that case. In Government of Andhra Pradesh v. Mohammad Khan, : AIR1962SC1778 , the Supreme Court only followed the decision in : AIR1962SC1052 (Supra) and came to the conclusion that the order of deportation cannot be operative until the question of the status of the affected person is determined under Section 9(2) of the Citizenship Act. In this case also no proceeding under Section 14 of the Foreigner's Act 1946 was started. In State of Madhya Pradesh v. Peer Mohammad, AIR 1963 SC 845 the important point decided in this case is that Article 7 of the Constitution does not apply in the case of an Indian citizen who has migrated or left India after January 26, 1950. It further held that in such a case Article 9 of the Constitution should be made applicable and, as such, a decision under Section 9(2) of the Citizenship Act is to be made by the Central Government before the aggrieved person can be declared as a foreigner. It is true that in this case a charge-sheet was framed under Section 14 of the Foreigner's Act 1946 and, the Supreme Court did not allow continuation of prosecution under Section 14 but in that case we find no reference to any argument made on behalf of the State of Madhya Pradesh that the case involves disputed questions of fact and, therefore, should be conveniently tried before the learned Magistrate. Mr. Ali has next referred us to Satar Shaikh v. Union of India 67 Cal WN 99 where the facts of the case are entirely different from the facts in the instant case. That was a case where order under R. 3 of the Foreigner's Order 1948 was challenged and there was no question of any prosecution under Section 14 of the Foreigners Act. Further, in that case, the petitioner was serving the Pakistan Government at the time our Constitution came into force and where the petitioner also applied for his registration as the citizen of India under Section 5 of the Citizenship Act Similarly, in Golam Rasul v. Superintendent of Police.' : AIR1965Cal302 no proceeding under Section 14 of the Foreigner's Act was pending when the order to quit India under Section 3(2)(c) of the Foreigner's Act 1946 was challenged. Mr. Ali has also drawn our attention to Abida Khatoon v. State of U. P. : AIR1963All260 , where the learned Judge after discussing the scope of Ss. 8 and 9 of the Citizenship Act came to the conclusion that the onus of proving that a citizen of India has lost his citizenship is on the party seeking to deprive him his right of a citizen. He also dealt with the question of migration and its legal effect in relation to Section 9(2) of the Citizenship Act. In that case, the learned Judge decided in favour of the appellant on the basis of the evidence adduced before the Additional Civil Judge, Agra in a Civil suit for a declaration that they are Indian citizens not allowable to be deported to Pakistan.
5. In our opinion, the facts of the instant case are different from the facts and circumstances in the aforesaid cases. The distinguishing features in the case before us may be stated as follows :
(a) In the petition before Banerjee, J. the only order that has been challenged was the order dt. 20th of March 1965 passed by the respondent No. 2, Sri S. Neogi. The order dated 20th of March 1968 reads as follows :
'Seen F. I. R. and report of O. C. Burwan P. 8. He prays for issuing W. P. A. against Pak National Mohd Samusuz Zuha. Issue W. P. A. to 20-4-65'. From annexures F to the petition we find that the petitioner was charged under Section 14 of the Foreigners Act for contravention of Section 3(2)(a)(b) of the Foreigners Act 1946 on 18-3-65. This order dated 18-3-65 has not been challenged by the petitioner. Assuming the impugned order dated 20-3-65 is set aside, the order dated 18-8-65 charging the petitioner under Section 14 of the Foreigners Act remains.
(b) The appellant returned to India in 1960 on a Pakistani Passport and was asked by the local Police, D. I. B. to make application under Section 5(1)(a) of the Citizenship Act, 1965, but such application was not made even under protest or without prejudice to his rights and contentions. On the contrary, he applied to the Deputy Secretary, Home (Passport) Writers' Buildings, Calcutta on 4-3-65 for an enquiry under Section 9(2) of the Citizenship Act, 1955.
(c) On 20-3-65 the Respondent No. 2 issued warrant of arrest, proclamation and attachment. On 22-3-65 11 heads of cattle belonging to the petitioner were seized by the Officer-in-charge, Burwan P. S. On 30-3-65 the application under Article 226 of the Constitution was moved before Banerjee, J., and was dismissed by him. On the same day the present appeal was filed. On 19-4-65, the petitioner surrendered before the S. D. O. Kandi, with an application for bail, but the bail was refused on 21-4-65. Now that the petitioner has surrendered before the S. D. O. there is no question of the execution of the warrant of arrest. We have been told by Mr. Ali that as the petitioner has surrendered, the proclamation and attachment have been withdrawn. Thus for all practical purposes the order dated 20-3-65 has become more or less infructuous and any decision on the validity of such order would be more or less academic specially in view of the fact that the validity of order dated 18-3-65 remains unchallenged.
(d) The application under Article 226 before Banerjee, J., does not give a complete picture of the petitioner's case inasmuch as some of the important facts are not set out. In paragraph 3 it is stated that he has applied for an Indian Passport, but neither the date nor the copy of such application or any other document has been placed before us to substantiate his statement. Further in paragraph 4, the petitioner's father is supposed to have surrendered his Pakistani Passport in the office of the Deputy High Commissioner for Pakistan at Calcutta. No original or duplicate receipt has been produced to show that the Pakistani Passport has in fact been surrendered. Similarly, it appears from the annexure F to the petition that the Pakistani Passport was issued on 6-6-57 and he is supposed to have crossed the border in 1960. There is no supporting affidavit by either the Anchal Prodhan or by Sri B. Ghosh Roy, Head Master, T. N. Institution, Panchthupi, Murshidabad. It is true that he has made an application to the Deputy Secretary, Home (Passport) Deptt, Political Branch, Government of West Bengal.
On March 4, 1965 praying for determination of s citizenship under Section 9(2) of the Indian Citizenship Act, but unfortunately the said application has not been made to the prescribed authority, namely, the Central Government. On 21-4-65 the Sessions Judge, Murshidabad refused his bail application but no application has been made in the Criminal jurisdiction of this Hon'ble Court against such order.
6. The facts set out by the appellant may be all correct but they cannot be found to be so at this stage. A charge has been framed against the appellant and criminal proceeding before the learned Magistrate is pending, oral and documentary evidence on behalf of the appellant and the Government can be conveniently placed before the trial Magistrate who on the evaluation of evidence may come to one of the three conclusions :
(i) The petitioner has not renounced his Indian nationality and has not voluntarily acquired Pakistani nationality in which case the appellant will be acquitted.
(ii) The appellant has renounced his Indian citizenship and has voluntarily acquired bis Pakistani nationality, in which case the appellant would be convicted under Section 14 of the Foreigners Act 1946 and the appellant can appeal to the High Court or come to this Court in Revisional Jurisdiction against such order of conviction or can make a fresh application under Article 226 of the Constitution against such order of conviction.
(iii) The facts are not conclusive to hold whether the appellant is an Indian or a foreigner in which case Section 9(2) of the Citizenship Act will be resorted to. In our opinion, for the reasons stared above, the petition under Article 226 not only suffers from serious infirmity but also is misconceived and premature. We, therefore, agree with the learned Judge that the petitioner should establish his defence before the criminal Court and that this Court should not interfere at this stage. We are however making it clear that we are not discussing the correctness or the validity of the appellant's contention either way at this stage. If the petitioner fails to substantiate his defence, he will be at liberty to take recourse to other legal remedies. In this connection reference may be made to the decision in Abdul Sattar v. State of Gujarat, : AIR1965SC810 where in a similar case after setting aside the orders of conviction and sentence under Section 14 of the Foreigners Act 1946 the Supreme Court sent back the case to the trial Magistrate to be dealt with according to law in the light of the judgment. It is true that there the High Court has not exercised its writ jurisdiction against the order of acquittal but that should not make any difference on principle. It is settled law that the High Court in its writ jurisdiction should not ordinarily interfere with the proceedings commenced before a Court or a Tribunal under the statutory law of the land until, on evidence or otherwise, it finds such Courts or Tribunal has acted without jurisdiction or in excess of jurisdiction. In this case, a charge-sheet has been framed and the proceedings have been duly commenced before a criminal Court, The parties are at liberty to adduce evidence before such Court and it is a convenient forum where the necessary facts for determining the nationality of a person might be available. The question whether an Indian citizen has renounced his Indian nationality and has acquired a Pakistani nationality is a mixed question of law and fact and until proper findings of facts are arrived at by the ordinary Courts of law or statutory Tribunal, it is difficult for a writ Court to apply the correct law.
7. Mr. Dutt, learned Government Pleader for the State of West Bengal, has submitted that the Criminal Court in this case is the proper forum where disputed questions of fact should be decided. He has very fairly agreed that the appellant should be given all opportunities to prove his case before the Magistrate. It is very unfortunate that the petitioner has been kept in jail custody since 19-4-65, the date when he has surrendered himself before the S. D. O. Kandi. The proceedings under Section 14 of the Foreigners Act 1946 involve complicated questions of nationality of a person who is admittedly a citizen of undivided India and he should not be dealt with as a criminal in the ordinary sense. There should be human approach to the matter. It is wrong for us to accept every statement of the appellant and to assume that he is a bona fide Indian citizen at this stage. Similarly, if is not proper for the Criminal Court to proceed with the matter with a bias or an assumption that he is a Pakistani citizen. The evidence may prove that he is an Indian citizen in which case his prolonged jail custody would prove to be a cruel joke to him and his relations. If again, it is found that the evidence requires the determination of his nationality under Section 9(2) of the Citizenship Act 1955 by the Central Government, the Courts would have no jurisdiction and the appellant would have to be discharged. On the contrary, if it is proved that the appellant is a Pakistani national, he will be duly punished. The ground mentioned by the Trial Magistrate for refusing bail that the appellant will run away to Pakistan is not satisfactory. It is difficult to believe that a man whose relations including mother, wife and children are residing in India and who is anxious to stay on in India as an Indian citizen would run away to Pakistan leaving all his people here and allowing his immovable property to be attached and sold. Assuming he runs away to Pakistan during the bail period, the task of the authorities becomes easier and no fresh order of deportation is necessary and he becomes a proclaimed absconder. There is no allegation that he is indulging in activities prejudicial to the State. The kind of over-enthusiasm in keeping the man in custody, far from helping anybody is susceptible to misunderstanding and disturbs the judicial climate in the country. It is a pity that the appellant has been facing judicial anomalies from the very beginning and has been driven from pillar to post by taking recourse to parallel and simultaneous proceedings under Code of Criminal Procedure and also our Constitution.
8. We, therefore, hold that all facilities should be provided to the appellant by the Trial Magistrate in adducing oral and documentary evidence. The appellant is given liberty to renew his bail application before the Trial Magistrate who after consideration of all the facts may consider the question of his bail on any condition he thinks best.
9. For the reasons stated above, the appeal is dismissed. The learned Trial Magistrate will proceed with the trial in the light of the observations made above.
10. There will be no order as to costs.
11. It should be observed that the hearing of this matter by the Trial Magistrate should be expedited to avoid any unnecessary harassment.
12. Let an extract from this Judgment be forwarded to the Trial Magistrate, Kandi, at once at the cost of the appellant as prayed for by Mr. Ali on behalf of the appellant.
P.B. Mukharji, J.