Patna High Court
State vs Abdul Rashid on 19 September, 1960
Equivalent citations: AIR1961PAT112, 1961CRILJ412, AIR 1961 PATNA 112, 1961 BLJR 60
JUDGMENT H.K. Chaudhuri, J.
1. This is an appeal by the State Government against the acquittal of the respondent, Abdrfi Rashid, who was put on trial on a charge under Section 14 of the foreigners Act, 1946, before a Magistrate of the first class at Darbhanga.
2. According to the prosecution, the respondent, who was originally a citizen of India, migrated to Pakistan after the 1st of Maroh 1947 and became a Pakistani national. He came back to India in 1953 on a Pakistani passport and a visa of the B category. He failed to leave India within the scheduled time whereupon he was served with a notice to quit India by the 24th August, 1957. This order not having been complied with, the respondent was prosecuted under Section 14 of the Foreigners Act. Section 14 of the Act provided as follows:
"If any person contravenes the provisions of this Act or of any order made thereunder, or any direction given in pursuance of this Act or suck order, he shall be punished with imprisonment for a term which may extend to five years and shall also be liable to fine; ........"
Section 3 of the said Act authorises the Central Government by order to make provision either generally or with respect to all foreigners or with respect to any particular foreigner or any prescribed class or description of foreigner, for prohibiting, regulating or restricting the entry of foreigners into India or their departure therefrom or their presence or continued presence therein. In particular this authority extends to the passing of an order providing that the foreigner shall not remain in India or in any prescribed area therein (vide, Clause (c) of Section 3(2) of the said Act). The prosecution case is that the order contravened by the respondent was an order made under Section 3(2) (c) of the Foreigners Act, 1946.
3. The defence was that the respondent was a citizen of India and that he had never migrated to Pakistan. According to him, he went to Pakistan on railway service without any intention of settling there permanently. In the circumstances, the order, which is said to have been contravened, was illegal and without jurisdiction.
4. The learned Magistrate held that the respondent was a railway engine driver and has opted for service in Pakistan, where he lived for about five or seven years. He, however, acquitted the respondent on the ground that since the latter had land, a house and cattle in India, he could not be said to have migrated to Pakistan.
5. The learned Government Pleader, appearing for the State, has contended that having regard to the evidence on record, the learned Magistrate was in error in holding that the respondent had not migrated to Pakistan. It is submitted that the evidence and the circumstances clearly established that the respondent had migrated to Pakistan after the 1st March 1947, and hence under Article 7 of the Constitution of India, he could not be deemed to be a citizen of India. Article 7 of the Constitution of India lays down:
"Notwithstanding anything in Articles 5 and 6, a person who has after the first day of March, 1947, migrated from the territory of India to the territory now included in Pakistan shall not be deemed to be a citizen of India."
6. Before I consider the evidence, I would like to mention here that it is not the case of the respondent that, after having migrated to Pakistan, he returned to the territory of India under a permit for resettlement Or permanent return within the meaning of the proviso to Article 7 of the Constitution of India.
7. The evidence in this case establishes than the respondent was originally a citizen of India, but left for Pakistan after the 1st March, 1947. He was a railway engine driver and, on partition of the country, opted for service in Pakistan. He was in service in Pakistan in this capacity and lived there for about seven years. During this period, he frequently visited India on temporary permits. He has some land, a house and cattle in India. He last came to India in 1953 on a Pakistani passport and a visa of the B category and did not return to Pakistan again. It is undisputed that he never applied to the authorities for a permit for resettlement or permanent return to India. By a notice served upon the respondent on the 24th July 1957 lie was asked to quit India within one month, but he did not comply with the order.
8. Article 5 of the Constitution of India provides as follows:
"At the commencement of this Constitution every citizen who has his domicile in the territory of India and -
(a) who was bom in the territory of India, or
(b) either of whose parents was born in the territory of India; or
(c) who has been ordinarily resident in the territory of India for not less than five years immediately preceding such commencement, shall be a citizen of India."
There is no doubt that the respondent would have been a citizen of India within the provisions of this Article if his contention that he did not migrate to Pakistan after the 1st day of March, 1947, could he accepted as correct. The learned Magistrate seems to have been in error in holding that the respondent's occasional visits to India on temporary permits or that the fact that he had land, cattle and a house in India, are circumstances inconsistent with his having migrated to Pakistan. The expression "migration" has been the subject of a large number of decisions in this country. In Mandhara Jakab v. Kutch Government. AIR 1951 Kutch 38, the accused persons were apprehended by the police on the I3th September 1950 while coming into Kutch from West Pakistan.
They admitted that they had entered India without a permit. They urged, however, that since they were domiciled citizens of India and that they and their parents were born in India, they were citizens of India as defined by Article 5 of the Constitution. They further submitted that they went to Pakistan in September 1948 on account of prevalence of famine conditions in Kutch and that this they did according to the usual practice in the past. They asserted that they did not intend to settle in Pakistan nor to abandon their Indian domicile. All these contentions were repelled and it was observed:
"Migration within the meaning of Article 7 has no reference to domicile. It simply means departure from India to Pakistan for the purpose of residence, employment or labour. The appellants themselves admit that they went to Pakistan for a living. They therefore, migrated into Pakistan within the meaning of Article 7 and cannot question the validity of the Act."
The facts of the present case are similar. The respondent admittedly went to Pakistan after having opted for service in that country. Apparently he went to Pakistan for employment and a living. It is impossible for him, therefore, to urge that he had not migrated into Pakistan within the meaning of Article 7. In Badruzzarmm v. The State, AIR 1951 All 16, Misra, J., held that the expression "migration" in Article 7 of the Constitution embraces in its scope two conceptions: (1) Going from one place to another and (2) the intention to make the destination a place of residence in future.
The record of that case showed that the applicant left his home for Pakistan after the 1st March 1947, that while in Pakistan he look up service which he lost later, that he came to India on a temporary visit about thirteen months after his departure, that the purpose for which he avowedly came to India was remarriage and taking away his family to Pakistan, that he wanted to return to Pakistan, but his wife did not agree to accompany him, and that his application for re-conferment of the status of an Indian citizen on him was rejected.
Some of the facts found in this case are not present in the case which we are considering. The material facts in both the cases, however, are identical. On the facts found the learned Judge had no difficulty in holding that when the applicant left India in May 1948, he did so in order to settle down in Pakistan and to adopt it as his home country. In Shabbir Husain v. State of U. P., AIR 1952 All 257, Raghubar Dayal, J., fully supported the view expressed by Misra, J., in AIR 1951 AH 16, and agreed with the meaning to be put on the word "'migrated", although on the facts of that case it was held that the applicant had not gone over to Pakistan with a view to settle there or to adopt it as his home country.
9. Learned counsel for the respondent has drawn our attention to the case of S. M. Zaki v. State of Bihar. AIR 1953 Pat 112. That was a case under the Administration of Evacuee Property Act, 1950. In that case the question was whether the petitioner was an evacuee within the meaning of Section 2(d) of the Administration of Evacuee Property Act. 1950. It wns urged in that case on behalf of the petitioner that the words "leaves or has left" occurring in the clause defining the term "evacuee" must be deemed to have been used in the sense of permanently leaving the Dominion of India with a view to settle down in Pakistan and with the intention of changing one's domicile completely.
The contention, in other words was that these words were synonymous with the word "migrated" used in Article 7 of the Constitution. Their Lordships: agreed that "migration" in the Article had been used in the sense of departure from one country to another for the purpose of residence or settlement in the other country and that a temporary visit to another country on business or otherwise would not amount to migration. The contention, however, that the word "left" in Section 2(d)(i) of the Evacuee Property Ordinance or the Act carries the same sense as ''migrated" as used in Article 7 of the Constitution, was not accepted.
Their Lordships, rejected the argument which proceeded on the assumption that the term "evacuee" as used in the evacuee law cannot apply to a citizen of India. This case, therefore, is of no assistance to us. On the special tacts of the case, their Lordships held that although the applicant in that case had shifted his residence outside India, that was not to the extent of completely abandoning the Indian domicile.
10. There is another aspect of the matter which does not appear to have received proper attention in the court below. Although the Pakistani passport on the strength of which a visa was granted to the respondent is not on the record, it is beyond controversy that the respondent came to India on the strength of such a passport. The visa which is on the record of this case snows that the passport expired on the 16th March 1953.
The term of the visa expired on the 16th May 1954. The learned Magistrate does not appear to have placed any reliance upon the visa on the ground that it had not been formally proved. It may be that the application portion of the visa containing the statements of the respondent were not admissible in the absence of proof of the handwriting, but the visa portion, being a public document, was admissible. The signature of the respondent on trie visa was duly proved and the question that arises is what was tH; effect of the respondent having obtained a visa for entering into India on the strength of a Pakistani passport.
This matter directly came up for decision by this Court in Syed Shah Mohammad Abdali v. State of Bihar, AIR 1960 Pat 98. Their Lordships held in that case that a Pakistani passport and the procurement of a "C" category visa furnish prima facie evidence that the persons holding them had acquired Pakistani citizenship ana that such persons are foreigners within the meaning of the Foreigners Act. The fact that the petitioners in the reported case had procured a visa of *'C" category, the terms of which are somewhat more restricted than those contained in a visa of "B" category, is of no importance whatsoever. The same view was expressed in a case of thp Calcutta High Court reported in Dawond AH Arif v. Deputy Commr. of Police, AIR 1958 Cal 565. Sinha, T- who gave judgment in that case observed as follows:
"The simple fact that he went to Pakistan at a time when thpre was communal disturbance would by itself prove nothing. But having gone there, he applied and obtained a Pakistan passport. In order t0 obtain a Pakistan passport, it is neres"arv to rmtke a declaration affirming that the applicant was a Pakistan national. Having made such an application, and having obtained a Pakistan passport on the strength thereof, the position was that the petitioner became a national of Pakistan, and his migration to Pakistan was complete. A passport by itself is not a conclusive proof of nationality. But it is accepted as a proof of the fact, by international agreement and the comity of nations."
Upon a review of the facts of this case and the ca.se laws discussed above, I have no doubt that the respondent had migrated to Pakistan alter the 1st March 1947 and that consequently he cannot be deemed to be a citizen of India as laid down in Article 7 of the Constitution of India.
11. Learned counsel for the respondent next drew our attention to Section 2 of the Foreigners Act, 1946, which defines the term "foreigner" as a person who is not a citizen of India. It appears that clause (a) of Section 2 defining the term "foreigner"1 was substituted in the section by the Foreigners Laws (Amendment) Act, 1957. This amendment defining a "foreigner" as a person who is not a citizen of India came into operation on the 19th January 1957.
It is consequently argued that under this definition the respondent could not be treated to be a foreigner under Section 2(a) of the Foreigners Act in 1954 when his visa expired. I do not think that there is any substance in this argument. The offence in the present case was the respondent's contravention of an order passed on the 24th July 1957. The offence, therefore, was committed several months after the amending Act came into operation.
12. It was next argued by learned counsel for the respondent that Pakistan was not a foreign State and consequently the respondent even if he were Found to be a citizen of Pakistan, could not be held to be a foreigner. He has referred in this connection to Article 367(3) of the Constitution which lays down as follows: "Fo the purposes of this Constitution 'foreign State' means any State other than India", There is a proviso to this clause which states that subject to the provisions of any law made by Parliament, the President may by order declare any State not to be a foreign State for such purposes as may be specified in the order. Reference was made by learned counsel to the Declaration as to Foreign States Order, 1950, issued under Article 367(3), which provides that every country within the Commonwealth was declared not to be a foreign State for the purposes of the Constitution and Pakistan was a country within the Commonwealth. This point was also raised in the ease of Moor Mohammad v. The State, AIR 1956 Madh B 211. Dixit, J., in dealing with this argument observed:
"I fail to see how this argument is of any assistance to petitioner. The effect of the 'Declaration as to Foreign States Order, 1950', is only this; that wherever the words 'foreign Stare' appear in the Constitution they must): be taken as not including countries within the Commonwealth. This is clear from the wording of Article 367(3) and of the Order referred to above. The Order does not mean that citizens of Commonwealth countries are Indian citizens even for the purposes of those Articles of the Constitution which do not contain the words 'foreign State' and where the question of interpretation of the expression 'foreign State' does not arise. Article 7 does not use the I words 'foreign State'. In Article 9 there is no reference whatsoever to Article 7. That Article like Article 7 is a disabling provision. The fact that Article does not deal with acquisition of citizenship of a foreign State after the commencement of the Constitution cannot, however, lead to the conclusion that Article 7 is inapplicable to those persons who migrated to Pakistan after 26-1-1950 and acquired Pakistan nationality. Such a construction would render nugatory Article 7."
13. With respect, I entirely agree with this view. The same view was expressed in a later decision of the same High Court in Naziranbi v. State, AIR 1957 Madh B 1.
14. The contention on behalf of the respondent next was that the charge as framed by the Magistrate was vague and has led to considerably prejudice to the accused. The change as drawn up is as follows:
"That you, oa or about 25-8-1957 and thereafter day of -- at Muria. P. S. Sadar Dar-bhanga, being a Pakistan national were found overstaying in India without valid passport or any other authority though you were ordered to quit India by 24-8-1957 and thereby committed an offence punishable under Section 14 of the Foreigner Act, 1946, and within my cognizance and I hereby direct that you be tried by the said Court on the said charge."
The words "were found overstaying in India without valid passport or any other authority" are obviously redundant. It was the contravention of an order made under the provisions of the Foreigners Act, 1946, which was the offence in the present case. It was, however, not clearly stated in the charge. All that was stated was that the respondent overstaved in India although he was ordered to quit India by the 24th August 1957. The words that "thereby he contravened an order 'passed under the Foreigners Act, 1946" are not there. The omission, however, is of little con-seauence. The plea that the respondent was prejudiced bv the omission seems to be frivolous.
15. Finally, it was argued that there was nothing in the present case to show that the Superintendent of Police or the Deputv Superintended of Police, wbo had signed tbe notice on his behalf, had been authorised by the State Government to issue such an order to the respondent. Under Section 3 of the Foreigners Act, 1946, the Central Government has been vested with power to order a foreigner to leave tbe Indian territory. Article 256(1) of the Constitution authorises the President to entrust either conditionally or unconditionally to any State Government or to its officers functions in relation to any matter to whick tbe executive power of the Union extends.
It is undisputed that tbe President in this case entrusted to the State, Government the function of the Central Government for making an order under Section 3(2) (c) of tbe Foreigners Act. Under Section 12 of the Foreigners Act any authority upon which any power to make Or give any direction, consent or permission or to do any other act is conferred by this Act or by any order mads thereunder 'may, unless express provision is made to tbe contrary in writing authorise, conditionally or otherwise, any authority subordinate to it to exercise such power on its behalf and thereupon the said subordinate authority shall, subject to such conditions as may be contained in the authorisation, be deemed to be the authority upon which such power is conferred by or under this Act.
The point for determination, therefore, is whether the delegation contemplated in this section has been made by the State Government in tbe present case. The learned Government Pleader has frankly conceded that this delegation was not made by the State Government before the 21st March, 1959. He has invited our attention to a notification issued in the Bihar Gazette, Extraordinary, dated March 30, 1959.
By tbis notification (vide. No. C/PP-104/Ge/ 59-3344-C, dated the 21st March, 1959) the State Government, in exercise of the powers conferred by Section 12 of the Foreigners Act, 1948 (Act XXX of 1946), read with the Government of India, Ministry of Home Affairs, notification No 4/3/ 5S(1)-F.L, dated the 19th April, 1958, authorise. the Deputy Inspector-General of Police, Criminal Investigation Department, Bihar and all Superintendents of Police and the Addl. Superintendent of Police, Jamshedpur, to exercise within the limits of their jurisdictions, the functions of the State Government in making order of the nature specified in Clause (c) of Sub-section (2) of Section 3 of the said Act subject to certain conditions.
It is obvious, therefore, that there was no delegation by the State Government under Section 12 of the Foreigners Act, 1946, on or before the 24th July 1957 when the order purporting to be under Section 3(2)(c) of tbe Foreigners Act, 1946 was issued. Quite apart from that, the order in question was signed by a Deputy Sunerintendent of Police and not by the Superintendent of Police himself. Clearly therefore, tbe order ia question. was illegal and without jurisdiction.
16. In the result, the prosecution must fail. The appeal is dismissed.
Tarkeshwar Nath, J.
17. I agree.