Kerala High Court
Puthalath Ahamed vs State on 20 December, 2011
Author: C.T.Ravikumar
Bench: C.T.Ravikumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR
MONDAY, THE 27TH DAY OF OCTOBER 2014/5TH KARTHIKA, 1936
Crl.MC.No. 3628 of 2011 ( )
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(CRIME NO.234 OF 2003 OF PANOOR POLICE STATION)
(C.C.NO.474 OF 2007 OF THE COURT OF ADDITIONAL CHIEF JUDICIAL
MAGISTTRATE, THALASSERY)
(ORDER IN CRL.M.C.NO.1211/2003 OF THE COURT OF PRL.SESSIONS JUDGE,
THALASSERY)
PETITIONER:
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PUTHALATH AHAMED, AGED 70 YEARS
S/O.KUNHABDULLA, GAREEB NIVAS, ARAYAKOOL
P.O.CHAMPAD, KANNUR DISTRICT 670 694
BY ADVS.SRI.C.KHALID
SMT.P.VANDANA
SRI.PHIJO PRADEESH PHILIP
RESPONDENTS:
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1. STATE, REPRESENTED BY CIRCLE INSPECTOR OF POLICE,
PANOOR POLICE STATION 670 692.
2. DISTRICT COLLECTOR,
COLLECTORATE, KANNUR 670 702
3. STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR
HIGH COURT OF KERALA, ERNAKULAM-31.
ADDL. 4. THE SECRETARY, GOVERNMENT OF INDIA,
MINISTRY OF HOME AFFAIRS (IC-I DIVISION)
LOK NAYAK BHAVAN, NEW DELHI- 110 003.
(ADDL.R4 IS IMPLEADED AS PER ORDER DATED 20.12.2011 IN
CRL.M.A.NO.8269 OF 2011)
R1 TO R3 BY PUBLIC PROSECUTOR SMT.K.A.JASMINE
R4 BY ADV. SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
27-10-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.MC.No. 3628 of 2011
APPENDIX
PETITIONER'S EXHIBITS
ANNEXURE 1 COPY OF THE F.I. STATEMENT IN CRIME NO.234/2003
DATED 19-05-2003 BEFORE THE ADDITIONAL CHIEF JUDICIAL
MAGISTRATE COURT,THALASSERY.
ANNEXURE 2 COPY OF THE EXTRACT OF THE ADMISSION REGISTER ISSUED BY
THE H.M OF THE GOVERNMENT L.P.SCHOOL, PANOOR.
ANNEXURE 3 COPY OF THE JUDGMENT IN WPC 25102/2003(L)DATED 14-03-
2007 ALLOWED BY THE HON'BLE HIGH COURT, ERNAKULAM
ANNEXURE3(A) COPY OF ORDER WPC 25102/03 DTD 15/6/04
ANNEXURE 4 COPY OF THE COMMUNICATION NO.3250/SSB2/2007/HOME
DATED 25-2-2010 ISSUED BY THE ADDITIONAL CHIEF SECRETARY
TO GOVERNMENT
ANNEXURE 5 COPY OF THE NOTICE REF.NO.SSI 29033/2001 DATED 9-6-2010
BEFORE THE DISTRICT COLLECTOR, KANNUR
ANNEXURE 6 COPY OF THE PETITION TO RECEIVE NOTICE DATED 8-8-2011 IN
C.C. NO.474/2007 BEFORE THE ADDITIONAL CHIEF JUDICIAL
MAGISTRATE,THALASSERY.
ANNEXURE 7 COPY OF THE ORDER IN CRL.M.C NO.1211/2003 DATED 17-06-
2003 BEFORE THE SESSIONS COURT,THALASSERY.
ANNEXURE 8 COPY OF THE JUDGMENT IN O.P.NO.32567/2001 B DATED
2.11.2001 BEFORE THE HON'BLE HIGH COURT OF KERALA,
ERNAKULAM.
ANNEXURE 9 COPY OF THE JUDGMENT IN O.P.NO.9555/96 DATED 1.12.1999
BEFORE THE HON'BLE HIGH COURT OF KERALA, ERNAKULAM.
ANNEXURE 10 COPY OF THE ORDER IN B.A.NO.443/2003 DATED 1.7.2003
BEFORE THE HON'BLE HIGH COURT OF KERALA, ERNAKULAM.
RESPONDENTS' EXHIBITS: NIL
// TRUE COPY //
TKS
P.S. TO JUDGE
C.T.RAVIKUMAR, J.
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Crl.M.C.No.3628 of 2011
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Dated 27th October, 2014
ORDER
The petitioner is the accused in C.C.No.474/2007 on the files of the Court of Additional Chief Judicial Magistrate, Thalassery arising from Crime No.234 of 2003 of Panoor Police Station, for the offences under Sections 3(2)(c) and 14 of the Foreigner's Act. This Crl.M.C. has been filed seeking quashment of all the proceedings in C.C.No.474 of 2007 based on Annexure No.1 F.I. Statement. On 16.1.2013 this Court passed an interim order staying pronouncement of the judgment in the said calendar case. The said order is extended from time to time and it still remains in force. The petitioner challenges the proceedings in the above calendar case on various grounds and a brief narration of the facts is essential for a proper disposal of the case.
2. The petitioner is a person of Indian origin. He had his education at Government L.P. School, Panoor, as is obvious from Annexure No.2. Thereafter, he left India without travel documents issued by the Central Government and resided outside India for a period exceeding three years. In fact, he was residing in Pakistan. Going by Crl.M.C.3628/2011 2 paragraph 4A of Schedule III of the Citizens Rules if a citizen of India left India without travel documents issued by the Central Government and resided outside India for a period exceeding three years, he should be deemed to have voluntarily acquired the citizenship of the country of his residence and in the circumstances the petitioner was treated as a citizen of Pakistan. Admittedly, he came to India in the year 2001 from Beharin. He was holding Pakistan passport. The contention of the petitioner is that he had been in India for short visits between the period from 1978 to 1998 and during one of his visits he married one Subaida and he begot two daughters namely Gareeba and Arifa in the wedlock. It is also the case of the petitioner that though he intended to renounce his Pakistan citizenship and to acquire Indian citizenship the Indian Embassy at Beharin refused to issue visa for his return to India and it was owing to his anxiousness to reach home and join his family that he was compelled to procure a Pakistan visa. He is now aged more than 70 years. The petitioner submitted an application for extension of period of permit for long term stay to remain in India through State Government and also an application under Section 9(2) of the Citizenship Act (for short `the Act') praying for determining his national status and to refrain from deportation was pending decision. Later, pursuant to a judgment of this Court a decision was taken on his application for determination of his national status. Evidently, that application of the petitioner was rejected. Crl.M.C.3628/2011 3 At the same time, the communications from Central Government to the State Government as also to the petitioner would reveal that the application submitted by the petitioner for citizenship under Section 5 of the Act is pending. The learned Assistant Solicitor General submitted that subsequent to the dismissal of his application for deciding his national status and also for long term stay in India proceedings were initiated against the petitioner owing to his overstay in India. In fact, such proceedings culminated in registration of the aforesaid crime which is now pending before the Court of Additional Chief Judicial Magistrate, Thalassery in C.C.No.474 of 2007. It is also submitted that it is after the initiation of the said proceedings that the petitioner submitted an application under Section 5 of the Act for citizenship.
3. Evidently, the allegation against the petitioner is one of commission of offences under Sections 3(2)(c) and 14 of the Foreigner's Act. In the context of the contentions it is relevant to refer to Sections 3 (2)(c) and 14 of the Foreigner's Act. They read thus:-
3. Power to make orders.- (1) The Central Government may by order 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 Crl.M.C.3628/2011 4 continued presence therein.
(2) In particular and without prejudice to the generality of the foregoing power, orders made under this section may provide that the foreigner-
......................................................
(c) shall not remain in India or in any prescribed area therein;
14. Penalty for contravention of provisions of the Act, etc.- Whoever-
(a) remains in any area in India for a period exceeding the period for which the visa was issued to him;
(b) does any act in violation of the conditions of the valid visa issued to him for his entry and stay in India or any part thereunder;
(c) contravenes the provisions of this Act or of any order made thereunder or any direction given in pursuance of this Act or such order for which no specific punishment is provided under this Act, shall be punished with imprisonment for a term which may extend to five years and shall also be liable to fine; and if he has entered into a bond in pursuance of clause (f) of sub-section (2) of section 3, his bond shall be forfeited, and any person bound thereby shall pay the penalty thereof or show cause to the satisfaction of the convicting Court why such penalty should not be paid by him.
Explanation.- For the purposes of this section, the expression "visa" shall have the same meaning as assigned to it under the Passport (Entry into India) Rules, 1950 made under the Passport (Entry into India) Act, 1920 (34 of 1920)."
In fact, Section 14 is the penal provision for contravention of any of the Crl.M.C.3628/2011 5 provisions under the Foreigner's Act. A perusal of Section 3 would reveal that it applies to all foreigners and in case a person remains in India in excess of the permitted period it will amount to violation of the provisions under Section 3(2)(c) of the Foreigner's Act which is punishable under Section 14 of the said Act. But, at the same time, it is to be noted that if an order is passed in favour of the petitioner under the Citizenship Act after considering the application under Section 5 of that Act the necessity to initiate or proceed with the proceedings already initiated under the Foreigners Act would pale into insignificance. This is because if the person concerned is conferred with Indian citizenship he will cease to be a foreigner. The contention of the petitioner is that in the context of the contentions it is also relevant to refer to Section 5 of the Citizenship Act which deals with citizenship by registration. It reads thus:-
"5. Citizenship by registration.- (1) Subject to the provisions of this section and such other conditions and restrictions as may be prescribed, the Central Government may, on an application made in this behalf, register as a citizen of India any person not being an illegal migrant who is not already such citizen by virtue of the Constitution or of any other provision f this Act if he belongs to any of the following categories, namely.-
(a) a person of Indian origin who are ordinarily resident in India for seven years before making an application for registration;Crl.M.C.3628/2011 6
(b) a person of Indian origin who is ordinarily resident in any country or place outside undivided India;
(c) a person who is married to a citizen of India and is ordinarily resident in India for seven years before making an application for registration;
(d) minor children of persons who are citizens of India;
(e) a person of full age and capacity whose parents are registered as citizens of India under clause (a) of this sub-section or subsection (1) of section 6;
(f) a person of full age and capacity who, or either of his parents, was earlier citizen of independent India, and has been residing in India for one year immediately before making an application for registration;
(g) a person of full age and capacity who has been registered as an overseas citizen of India for five years, and who has been residing in India for one year before making an application for registration."
4. The learned counsel for the petitioner submitted that taking into consideration the pendency of the application filed by the petitioner under Section 5 of the Citizenship Act he is entitled to get the benefit of a decision of this Court in O.P.No.9555 of 1996 and connected original petitions dated 1.12.1999. Evidently, in that case, in the light of the pendency of the applications under Section 5 of the Citizenship Act this Court considered the question as to whether in the case of a person Crl.M.C.3628/2011 7 of Indian origin the authorities are under an obligation to consider that application if submitted under Section 5(1)(a) of the Citizenship Act. Virtually, that question was considered in the light of the provisions under Articles 5 to 9 of the Constitution of India and the decisions in Central Bank of India v. Ram Narayan (AIR 1954 SC 36), Thomas v. Morgas ((1935) 62 CAL. 869), Somerville v. Somerville ((1801) 5 Ves. 750) and Huntley v. Gaskell ((1906) A.C. 56). Taking into consideration the undisputed position that all the petitioners therein are of Indian origin it was held that they had their domicile of origin in India and since all the petitioners are of Indian origin and had their domicile by birth in India, they could maintain an application under Section 5(1)(a) of the Citizenship Asct. It is further found that if those applications are allowed their domicile of origin would revive. Considering the fact that the petitioners therein during their stay in India married Indian citizens and continued residence in India for certain periods it was found that such situations are also recognised as a ground for acquiring Indian citizenship. Going by the case of the petitioner, he is a person of Indian origin and he got married a citizen of India and begot two daughters in the wedlock. It is common case that since 2001 the petitioner has been in India and his marriage was much prior to 2001. Be that as it may, it is not disputed before me that the application submitted by the petitioner under Section 5(1)(a) of the Act is now pending before the Central Crl.M.C.3628/2011 8 Government. Having considered the case of the petitioner in the light of Annexure No.9 judgment I am of the view that in view of the precise case of the petitioner that he is an Indian origin and married an Indian citizen and they got two daughters in the wedlock he is entitled to maintain an application under Section 5(1)(a) of the Act. When that be so, the 4th respondent is under an obligation to consider the application submitted by the petitioner for citizenship under Section 5 of the Act. The learned Assistant Solicitor General submitted that for considering the application under Section 5 of the Act materials have to be collected through the State Government and in that regard informations on relevant details were sought for, from the State Government. Forwarding all relevant documents were also sought for. Annexure No.4 would reveal that the application for Indian citizenship by registration under Section 5(1)(a) of the Act was received from the petitioner. Annexure No.4 would also reveal that the following factors were already brought to the notice of the Central Government :-
"B: The applicant married Subaida, D/o.Mammad of Champad on 14.4.1971. In the wedlock he has two daughters namely Gareeba and Arifa. His wife, Smt.Subaida was expired two years back. He is now staying with his daughters at Gareeb Nivas, Arayakkool, P.O.Champad in Kannur District. The above close relatives of the Pak national are Indian citizens by birth and domicile. Hence the applicant has close connection in India by way of his family.Crl.M.C.3628/2011 9
H&I: The applicant is continuously staying in Kannur District since 1.7.2001."
Subsequently, for the purpose of signing the declaration and oath of allegiance in the application for Indian citizenship by registration as Indian citizen the petitioner was directed to appear before the District Collector, Kannur. It is the precise contention of the petitioner that in compliance with the directions in Annexure No.5 notice dated 9.6.2010 he appeared before the District Collector, Kannur and signed the declaration and oath of allegiance in the application for registration as Indian citizen. However, the learned Assistant Solicitor General submitted that for the purpose of taking proper decision on the application submitted by the petitioner under Section 5 of the Act further details and documents are required and for that purpose the State Government was addressed to furnish such requisite documents. It is also submitted that despite the receipt of such communication no steps were taken by the State Government to furnish such details and in the said circumstances, the competent authority is not in a position to take a final decision on the application and that is why the decision on the application filed by the petitioner under Section 5 of the Act is not forthcoming. In view of the aforesaid position, this Crl.M.C. is disposed of as hereunder:-
Crl.M.C.3628/2011 10
The Secretary to State of Kerala, Home Department is directed to furnish the details and documents necessary for taking a final decision on the application filed by the petitioner under Section 5(1)(c) of the Act expeditiously. On receipt of such details and documents from the State Government the Secretary, Government of India, Ministry of Home Affairs shall take a final decision on the application for Indian citizenship by registration filed by the petitioner under Section 5(1)(c) of the Act.
This Court has already passed an interim order on 16.1.2013 in the captioned Crl.M.C. It is made clear that the said order interdicting the Court of Additional Chief Judicial Magistrate, Thalassery from pronouncing the judgment in C.C.No.474 of 2007 will continue to remain in force till a decision is taken on the application for citizenship by registration filed by the petitioner under Section 5 of the Act. Once a decision is taken on the said application the parties shall produce the same before the Court of Additional Chief Judicial Magistrate, Thalassery in C.C.No.474 of 2007 to enable that court to continue with the proceedings and to conclude it in accordance with law. It is made clear that if the petitioner is granted the citizenship after consideration of the application for citizenship by registration it will be open to the petitioner Crl.M.C.3628/2011 11 to raise the question of sustainability and necessity of continuation of proceedings in C.C.No.474 of 2007, in accordance with law.
Sd/-
C.T.RAVIKUMAR Judge TKS