Gauhati High Court
WP(C)/6042/2017 on 29 April, 2022
Bench: N. Kotiswar Singh, Malasri Nandi
Page No.# 1/30
GAHC010042322017
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/6042/2017
Aymona Bibi @ Aimona Bibi,
D/O. Lt. Jamal Mondal @ Lt. Jamal Uddin Mondal,
W/O. Sahed Ali,
Vill.- Mandaikhali,
P.O.- Jhaleralga, P.S.- Gauripur,
District- Dhubri, Assam,
PIN- 783331.
......Petitioner.
-Versus-
1. The Union of India,
Represented by the Secretary Ministry of Home Affairs,
Govt. of India, New Delhi-1.
2. The Commissioner and Secretary to the
Govt. of Assam,
Home Department, Dispur,
Guwahati-6.
3. The Deputy Commissioner, Dhubri,
District- Dhubri, Assam
PIN- 783301.
4. The Superintendent of Police (Border), Dhubri,
District- Dhubri, Assam,
PIN- 783301.
......Respondents.
Page No.# 2/30 BEFORE HON'BLE MR. JUSTICE N. KOTISWAR SINGH HON'BLE MRS. JUSTICE MALASRI NANDI For the Petitioner : Mr. H.R. Ahmed, Mr. A. Islam.
......Advocates.
For the Respondents : Asstt. S.G.I.
Mr. H. Gupta, CGC.
: Mr. J. Payeng,
Special Counsel, Foreigners Tribunal.
: Ms. K. Phukan, Govt. Advocate.
......Advocates.
Date of Hearing : 01.11.2021 & 18.11.2021.
Date of Judgment : 29.04.2022
JUDGMENT AND ORDER
[N. Kotiswar Singh, J.]
Heard Mr. H.R. Ahmed, learned counsel for the petitioner. Also heard Mr. H. Gupta, learned Central Government Counsel appearing for respondent No.1; Mr. J. Payeng, learned Special Counsel, Foreigners Tribunal for respondent Nos.2 & 4 and Ms. K. Phukan, learned Govt. Advocate, Assam for respondent No.3.
2. In this petition, the petitioner has challenged the opinion dated 31.05.2017 passed by the learned Foreigners Tribunal(5 th), Dhubri in Case No. FT-5/GPR/309/2017 [R/IM(D)T Case No. 2448/98] by which the petitioner was declared a foreigner as the Tribunal was of Page No.# 3/30 the opinion that the petitioner had failed to discharge the burden cast on her under Section 9 of the Foreigners Act, 1946.
3. After the reference was made, the petitioner was proceeded against in the aforesaid case. The petitioner was duly served notice.
4. Petitioner filed her written statement stating inter alia, that she is an Indian by birth and her name has been recorded in the voters list of 1997 under Sl. No. 639 and she is married to one Sahed Ali whose name appears at Sl. No. 638. It was also stated that her father's name is Jamal Mondal. It has been also claimed that Jamal Mondal is an Indian citizen and his name was recorded in 1951 N.R.C. vide House No. 91 with Sl. No. in House No.4, Legacy Data Code: 340-0010-4018 under Image District name Goalpara, Sub-Div:
Dhubrithana, Town- Dhubri of village- Jhaleralga where her father's name has been recorded as Jamal Uddin Mondal instead of Jamal Mondal.
5. It has been stated that petitioner's father's name, Jamal Mondal, as the son of Foyez Mondal was recorded in 1966 voters list under Dalshingeralga Pt.II of village under 34 Gauripur L.A.C. at Sl. No. 11. It has been also stated that petitioner's father's name was also recorded in 1970 voters list as Jamal Mondal, S/o Foyez under 34 Gauripur L.A.C. in Dalsingalga Pt. II under Dalshingher Alga Pt. II of the same LAC. The petitioner also submitted the certificate issued by the President of Geramari Gaon Panchayat which was countersigned by its Secretary. The petitioner also submitted the 1951 N.R.C. Legacy Data Code as well as the copies of the voters lists of 1966 and 1971. The petitioner also furnished a copy of the Electoral Photo Identity Card issued by the Election Commission of India.
6. In course of the proceeding, the petitioner examined herself and one Esa Hoque Page No.# 4/30 Mondal who was projected to be her brother.
7. However, the learned Tribunal considering the materials on record held that the petitioner failed to prove her claim that she is an Indian. The Tribunal held that the petitioner had not mentioned her mother's and grandparents name and also had not mentioned about her brothers and sisters of her father which was within her personal knowledge and on failure to disclose the same, necessary adverse inference could be drawn. It was also observed by the learned Foreigners Tribunal that mere oral testimony cannot be acted upon and documentary evidence having no probative value could not be relied upon to assert her citizenship.
8. The learned Tribunal observed that the petitioner had failed to establish the linkage with her parents inasmuch as the certificate issued by the Secretary of Geramari Gaon Panchayat, dated 24.02.2017 was not proved as it was not a 'public document' as the person who had issued the certificate was not examined and as such, in absence of examination of the issuing authority, the said certificate is not admissible in evidence.
9. As regards the projected brother, Esa Hoque Mondal, the learned Tribunal observed that in his deposition as DW-2, he did not mention about his parents' names though he claimed the petitioner as his sister and as such in absence of such mentioning of the names of the parents and other relatives, the oral testimony of the DW-2 (Esa Hoque Mondal) could not be relied upon.
10. The learned Tribunal also noted that as per DW-2, at the time of death, his father was 82 years old, and the DW-2 also stated that his sister was given marriage to Sahed Ali about 20 years ago, though in his deposition in affidavit, DW2 stated that about 30 years ago Page No.# 5/30 his sister's marriage was solemnized. The learned Tribunal observed that DW-2 accordingly, made contradictory statements and as such his oral testimony is not reliable.
11. Coming to the age of the petitioner's father, the learned Tribunal, on the basis of the oral testimony of the petitioner and DW-2 found that there was certain discrepancies and the petitioner's father was shown to be older than what had been shown in the voters lists of 1966 and 1970.
12. The learned Tribunal also observed that the petitioner had not mentioned in her evidence the names of other persons reflected in the voters lists of 1966 and 1970. Thus, the learned Tribunal did not find the oral testimony of the petitioner regarding her projected father to be reliable.
13. As regards N.R.C. Legacy Data, the learned Tribunal observed that since it was a photocopy, it carries no evidentiary value. As such, the learned Tribunal held that the petitioner had miserably failed to prove her claim that she is an Indian, not a foreigner.
14. Mr. Ahmed, learned counsel for the petitioner, however, has assailed the impugned opinion dated 31.05.2017 on various grounds.
15. Learned counsel for the petitioner has also raised a preliminary objection as to the validity of the reference being made.
16. According to the learned counsel for the petitioner, there was no finding by the Enquiry Officer that the petitioner is suspected to be a foreigner. In fact, on the contrary, there are records to show that the petitioner's father was a registered electorate whose name appeared in the voters list of 1966 as clearly mentioned in para Nos. 8 and 9 of the Verification Officer's Report annexed as Annexure 9. It has been submitted that the Page No.# 6/30 Verification Officer had also noted the certificate issued by the Secretary, Geramari Gaon Panchayat and accordingly, on the basis of the Enquiry Report the Assistant Electoral Registration Officer (AERO) made an endorsement in the aforesaid verification report on 02.10.1997 that "inclusion allowed".
17. Learned counsel for the petitioner submits that the said enquiry was initiated only because the citizenship of the petitioner was doubted.
However, upon being satisfied that she is not a foreigner, the authorities recommended inclusion of the name of the petitioner in the voters list.
18. Learned counsel for the petitioner submits that in the report made by the Superintendent of Police, Dhubri, nowhere it is mentioned that the petitioner is a doubtful voter or of doubtful nationality and as such, it has been submitted that, since neither the Enquiry Officer nor the Referral Authority had cast any doubt on the citizenship of the petitioner, no reference could have been made and such reference made is wholly illegal and on that count, such a reference will be liable to be set aside.
19. Coming to the merit of the case, learned counsel for the petitioner submits that the petitioner has been able to prove her linkage with her projected father, late Jamal Mondal @ late Jamal Uddin Mondal. She claims to have submitted before the Enquiry authorities as well as before the Tribunal that her father is a registered electorate and his name was included in the voters list of 1966 which has been fully corroborated by the voters list which the petitioner submitted before the Tribunal as Ext. B.
20. In the said Ext. B, the name of Jamal Mondal has been recorded under village-128 Dalsinger Alga Pt.II , P.O.- Gauripur, Sub-Division & P.S. Dhubri, District- Goalpara of the 34 Page No.# 7/30 Gauripur Legislative Assembly Constituency for the year 1966. Similarly, the petitioner also had exhibited Ext.-C, the voters list of 1970 where the name of his father Jamal Mondal appears under the same Legislative Assembly Constituency under the same village and similar other particulars.
21. It has been submitted that the name of the petitioner is also recorded in the voters list of 1997 though the same was not submitted before the Tribunal. Similarly, the name of the petitioner was also included in the voters lists of 2005 and 2015 along with her husband's name which, however, were not exhibited before the Tribunal.
However, in the Electoral Photo Identity Card issued in the name of the petitioner, her husband's name has been shown as Sahed Ali as a resident of Village- Madiakhali, P.S.- Gauripur, Sub-Division- Dhubri, District- Dhubri, Assam.
22. Learned counsel for the petitioner submits that the Secretary, Geramari Gaon Panchayat who issued the certificate was not examined but the original was submitted before the Tribunal. However, no objection was raised about admissibility of such document and as such, it has been submitted that in the light of the aforesaid document it can be said that the petitioner has been able to prove her claim that she is an Indian citizen.
Accordingly, it has been submitted that the opinion rendered by the learned Foreigners Tribunal (5th), Dhubri in Case No. FT-5/GPR/309/2017 on 31.05.2017 is not correct and liable to be interfered with.
23. In response, Mr. J. Payeng, learned Special Counsel, Foreigners Tribunal has vehemently objected to the contention made by the learned counsel for the petitioner that no proper enquiry was made nor proper reference was made by the Referral Authority.
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24. Mr. Payeng submits that merely because the Verification Officer had made certain observation in the report that "inclusion allowed" does not necessarily mean that the report has to be accepted by the Referral Authority and in fact, the enquiry was initiated when the inclusion of name of the petitioner in the voters list became doubtful. He submits that, further, as can be seen from the records, the police authorities had made a clear observation that enquiry was conducted regarding the suspected illegal immigrant. However, since the proceeding was initiated before the IM(D)T when the IM(D)T Act was in vogue, the Local Verification Officer (LVO) and Electoral Registration Officer (ERO) had to prove the case before the Tribunal in the light of amendments made in the IMDT Act and guidelines issued by Election Commission and no detail enquiry was required at that stage. Accordingly, as directed by the Superintendent of Police, the matter was referred to the Tribunal. It has been submitted that there was no illegality on the part of the authorities in referring the case of the petitioner to the Foreigners Tribunal.
25. Be that as it may, Mr. Payeng submits that this objection was never raised before the Tribunal and the petitioner is taking this plea only before this Court after the Tribunal found that she had miserably failed to prove her case. As regards inclusion of the name of the petitioner in the voters list of 1966 and 1970, according to Mr. Payeng, it does not prove anything as the petitioner has to establish her link with the aforesaid projected father which the petitioner had failed to do so.
26. Mr. Payeng submits that to establish such a link, there must be clear and conclusive evidence and in the present case, there is no such evidence.
27. Mr. Payeng further submits that in fact, the certificate issued by the Secretary, Page No.# 9/30 Geramari Gaon Panchayat which was relied on by the petitioner was not admissible for the reason that the author of the said certificate was never examined and the voters lists do not provide the clear link. Further, the voters lists of 1997, 2005 and 2015 referred by the petitioner before this Court were never produced or exhibited by the petitioner during the proceeding before the Tribunal.
28. Accordingly, Mr. Payeng has submitted that if the said documents are ignored, there is no other material evidence to show the link of the petitioner with her projected father. It has been also submitted that though existence of Jamal Mondal as recorded in the voters list of 1966 and 1970 may not be doubted, it does not necessarily mean that he is the father of the present petitioner for which the petitioner had to adduce additional documents to show the link with her aforesaid projected father, which is missing in the present case.
29. As regards DW-2, who the petitioner claims to be her brother, it has been submitted by Mr. Payeng that mere oral evidence in absence of any supporting documentary evidence will not be sufficient to prove that the said DW-2 is her brother. Mr. Payeng submits that in the present case, apart from oral evidence, there is no other documentary evidence to show the link of the petitioner with the said projected brother and as such, the said evidence of DW-2 cannot assist the petitioner in making her claim.
30. Mr. Payeng also submits that though there cannot be any doubt that the citizenship is a very important right of a person, nevertheless, no country can afford to accept any person as a citizen without adequate documentary evidence and mere oral evidence cannot be the basis for granting citizenship.
31. Mr. Payeng further submits that though the petitioner had been afforded all the Page No.# 10/30 opportunities to adduce adequate evidences before the Tribunal by calling the concerned officials also, she did not avail such opportunity and as such, the petitioner has to blame herself for not being able to prove her case.
32. Accordingly, it has been submitted the petitioner has miserably failed to prove her case and consequently, the opinion of the learned Foreigners Tribunal does not warrant any interference.
33. On the other hand, Mr. Ahmed, learned counsel for the petitioner submits the fact that the enquiry was held at the field level and the enquiry authority was satisfied, and no doubt was cast on the citizenship of the petitioner as well as the relationship with her projected father during the enquiry, the question of referring her case to the Tribunal did not arise.
34. We will first deal with the issue raised by the petitioner about the improper holding of enquiry and its effect on the proceeding before the Foreigners Tribunal.
35. In this regard, we would like to refer to the decision of the Full Bench of this Court in State of Assam and Ors. Vs. Moslem Mondal and Ors. [2013 (1) GLT 809: (2013) 3 GLR 402], where the importance of proper enquiry before a reference is made to the Tribunal has been highlighted.
36. In this regard, one may refer to para Nos.89 and 90 of the Full Bench decision in Moslem Mondal (supra), which are reproduced hereinbelow.
"(89) The Tribunal gets the jurisdiction to give an opinion on the question whether a person is foreigner or not only when a reference is made by the authorities mentioned in clause 2 of the 1964 Order. The Tribunal, thereafter, has to cause service, on the person to whom the reference relates, a copy of the main grounds on which he is alleged to be a foreigner. The Tribunal is also Page No.# 11/30 required to give a reasonable opportunity of making a representation, producing evidence in support of his case and after considering such evidence as may be produced as well as after hearing such persons as may deserved to be heard, it has to submit its opinion to the authority specified in that behalf in the order of reference. The Tribunal, however, is empowered to regulate its own procedure. Clause 4 of 1964 Order confers on the Tribunal the power of a Civil Court while trying a suit under the Code of Civil Procedure, in respect of (a) summoning and enforcing the attendance of any person and his examination on oath; (b) requiring the discovery and production of any document; and (c) issuing commissions for the examination of any witness. The procedure laid down in the Code of Civil Procedure as such is not applicable in a proceeding before the Tribunal, except in relation to the matter stipulated in clause 4 of the said Order. As noticed above, the Tribunal is empowered to regulate its own procedure while deciding a reference proceeding pending before it.
90. Though strictly speaking as soon as the Tribunal renders its opinion it becomes functus officio as no proceeding thereafter is pending, it cannot be said that the Tribunal has no jurisdiction to pass an order, even after the disposal of the proceeding, in the interest of justice. The Courts and the Tribunals exist to do justice. It cannot refuse to entertain an application, even after the proceeding before it is over, on the ground that there is no specific provision in law laying down the procedure for entertaining such application, if such application is required to be entertained to do justice between the parties, otherwise the very existence of the Court or the Tribunal would be meaningless, if in a given case where such an order is required to be passed, the Court or the Tribunal refuses to pass such order on the plea of technicalities. The procedures are handmaid of justice and must be regarded as something designed to facilitate justice and further its ends and not a thing designed to trip people up (Sangram Singh Vs. Election Tribunal, Kotah, reported in AIR 1955 SC 425). Moreover, by the nature of the quasi- judicial proceeding before the Tribunal they have the trappings of the Civil Court. Neither the 1946 Act nor the 1964 Order or any procedure formulated by the Tribunal prohibits acceptance of any application after rendering the opinion by the Tribunal, if the entertainment of the same is required for ends of justice."
37. In subsequent paragraphs, in Para Nos. 93, 94, 95, 96, 97 and 98, the Full Bench went on to explain the manner in which the investigation is to be carried out before making a reference to the Tribunal.
Page No.# 12/30 Para Nos. 93, 94, 95, 95, 96, 97 and 98 read as follows, "93. The right to get a fair trial is a basic fundamental and human right. Any procedure which comes in the way of a party in getting a fair trial would be violative of Article 14 of the Constitution. Fair trial also includes a fair investigation. The concept of fair investigation and fair trial assumes much importance in the matter of detection and deportation of foreigners under the provisions of the Foreigners Act, 1964 Order as well as the 2012 Amendment Order, because of the nature of proceeding as well as the burden cast on the person who is suspected to be a foreigner to prove that he is not a foreigner, by Section 9 of the 1946 Act. The citizenship right is to be jealously protected. The right under Article 21 of the Constitution is available to all persons to protect his life and personal liberty and hence even the right of a non-citizen to have fair investigation, trial as well fair procedure to be adopted by the Tribunal is guaranteed by Article 21 of the Constitution.
94. The Apex Court in Dwarka Prasad Agarwal (supra) has opined that the right to get a fair trial is a basic fundamental/human right and denial of fair trial violates Article 14 of the Constitution. In Zahira Habibulla H. Sheikh (supra), commonly known as "Best Bakery Case", the Apex Court giving emphasis on the principle of fair trial, has opined that the just application of its principles in substance is to find out the truth and prevent miscarriage of justice. It has also been opined that the concept of fair trial entails the familiar triangulation of interests of the accused, the victim and society, and it is the community that acts through the State and prosecuting agencies. It has also been opined that a trial which is primarily aimed at ascertaining the truth has to be fair to all concerned. It will not be correct to say that it is only the accused who must be fairly dealt with. That would be turning a Nelson's eye to the needs of society at large and the victims or their family members and relatives. Public interest in the proper administration of justice must be given as much importance, if not more, as the interests of the individual accused. While dealing with the role of the Court, the Apex Court observed that the courts have a vital role to play. Its role is to discover, vindicate and establish the truth and hence the trial should be a search for the truth and not a bout over technicalities. The Apex Court further observed that the Presiding Judge must cease to be a spectator and a mere recording machine and he must have active interest and elicit all relevant materials necessary for reaching the correct conclusion to find out the truth and administer justice with fairness and impartiality both to the parties and to the community.
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95. In Zahira Habibulla H. Sheikh(5) (supra) the Apex Court opined that every State has a constitutional obligation and duty to protect the life and liberty of its citizens, which is the fundamental requirement for observance of the rule of law. There cannot be any deviation from this requirement because of any extraneous factors like caste, creed, religion, political belief or ideology. The Apex Court further opined that the fair trial consists not only in technical observance of frame and forms of law, but also in recognition and just application of its principles in substance, to find out the truth and prevent miscarriage of justice. In Samadhan Dhudaka Koli (supra) the Apex Court has reiterated its view that the prosecution must also be fair to the accused. Fairness in investigation as also trial is a human right of an accused. In Himanshu Singh Sabharwal (supra) the Apex Court reiterating the earlier view, has further opined that the fair trial is inherent in the concept of due process of law and the fair hearing requires an opportunity to preserve the process. In Nirmal Singh Kahlon Vs. State of Punjab and ors. reported in AIR 2009 SC 984, the Apex Court has reiterated that fair investigation and fair trial are concomitant to observance of fundamental right of an accused under Article 21 of the Constitution and hence though the State has a larger obligation i.e. to maintain law and order, public order and preservation of peace and harmony in the society, a victim of a crime, thus, is equally entitled to a fair investigation. In National Human Rights Commission (supra) commonly known as Godhra Riot Case, the Apex Court has reiterated the requirement of having fair investigation and the trial.
96. One of the contentions of the proceedees is that though the referral authority is required to make the reference to the Tribunal after making a fair investigation, no such proper and fair investigation is conducted and the police at their own whims and caprice gives a report, in some cases even without visiting the place where such proceedee resides and also without giving any opportunity to produce the relevant documents to substantiate that the proceedee is not a foreigner, and such report is accepted by the referral authority and accordingly the reference is made to the Tribunal, on the basis of which the reference is registered against such person.
97. Fair investigation and fair trial being the basic fundamental/human right of a person, which are concomitant to preservation of the fundamental right of a person under Article 21 of the Constitution, there has to be a fair and proper investigation by the investigating agency before making a reference to the Tribunal. In such investigation the attempt has to be made to find out the person against whom the investigation is made, so that the person concerned is Page No.# 14/30 given the opportunity to demonstrate at that stage itself that he is not a foreigner. In case the person concerned could not be found out in the village where he is reported to reside or in the place where he ordinarily resides or works for gain, the investigating agency has to record the same in presence of the village elder or the village headman or any respectable person of the locality, which in turn would ensure visit of the investigating officer to the place where such person ordinarily resides or reported to reside or works for gain and making of an effort to find him out for the purpose of giving him the opportunity to produce the documents etc., if any, to demonstrate that he is not a foreigner. The investigating officer, as far as practicable, shall also obtain the signature or thumb impression of the person against whom such investigation is initiated, after recording his statement, if any, provided he makes himself available for that purpose. There are also instances where the person against whom such investigation is initiated, changes his place of residence, may be in search of livelihood or may be to avoid detection. To ensure proper investigation and also having regard to integrity and sovereignty of the nation, once investigation relating to the nationality status of a person starts he must inform the investigating agency in writing about the change of residence, if any, thereafter. In case such person has failed to intimate the investigating agency in writing the subsequent change of his place of residence, the investigating agency has to mention the same in his report with his opinion relating to the status of such person on the basis of materials collected at the place where he earlier resided. That will ensure a fair investigation and submission of a proper report on such investigation to the authority. Needless to say, such investigation need not be a detailed or an exhaustive one keeping in view the nature of the proceeding before the Tribunal and the object sought to be achieved. Hence it need not be equaled with an investigation conducted in criminal cases.
98. The reference by the referral authority also cannot be mechanical. The referral authority has to apply his mind on the materials collected by the investigating officer during investigation and make the reference on being satisfied that there are grounds for making such reference. The referral authority, however, need not pass a detailed order recording his satisfaction. An order agreeing with the investigation would suffice. The referral authority also, while making the reference, shall produce all the materials collected during investigation before the Tribunal, as the Tribunal is required prima facie to satisfy itself about the existence of the main grounds before issuing the notice to the proceedee."
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38. Based on the aforesaid observations made by the Full Bench in Moslem Mondal (supra), we may re-emphasise the importance of a proper investigation prior to reference as follows.
38.1 The proceeding before the Tribunal gets activated only when a reference is made by the competent authority to that effect. Order 2 (1) of the Foreigners (Tribunals) Order, 1964 provides that the Central Government may by an order refer the question as to whether a person is or is not a foreigner within the meaning of the Foreigners Act, 1946 to a Tribunal constituted for this purpose, for its opinion.
38.2 Thus, only a reference made to the Tribunal confers jurisdiction to the Tribunal to initiate the proceeding. The Tribunal cannot suo motu take any matter without a reference being made to it by the competent authority. Therefore, making a valid reference by the competent authority is sine quo non for initiating the proceeding before the Tribunal. 38.3 In that context, it becomes the duty of the referral authority to make the reference properly after being satisfied with the report of the investigating authority and the Tribunal, in turn has to be satisfied that a proper reference has been made and if the reference is not made properly, it may vitiate the entire proceeding before the Tribunal, rendering its opinion unsustainable in law.
38.4 Thus, before a reference is made, it is necessary that a proper investigation, as required, is carried out by the investigating authority. This is critical and crucial, since such an investigation and reference would have far reaching repercussions for the person concerned, as in the event of failure to discharge the burden by the person under reference, under Section 9 of the Foreigners Act, 1946, he would be liable to be declared a foreigner and Page No.# 16/30 deported.
The statute contemplates a summary proceeding as can be gleaned from the procedure prescribed under Order 3 of the Foreigners (Tribunals) Order, 1964. It merely provides for giving a reasonable opportunity to the person concerned of making a representation and producing evidence in support of his case and the Tribunal after considering such evidence as may be produced and after hearing such persons as may desire to be heard, submit its opinion to the authority concerned and the final order of the Foreigners Tribunal shall contain its opinion on the question referred to which shall be a concise statement of facts and the conclusion. The Foreigners Tribunal, however, has been endowed with the power of a civil court while trying a suit under the Code of Civil Procedure,1908 and the powers of the Judicial Magistrate under the Code of Criminal Procedure 1973 only as regards summoning and enforcing the attendance of any person and examining him or her on oath, requiring the discovery and production of any document, issuing commissions for the examination of any witness, directing the proceedee to appear before it in person and issuing a warrant of arrest against the proceedee if he or she fails to appear before it.
Thus, from the scheme of the 1964 Order, apart from the limited power of enforcing attendance, discovery of documents issuing commissions etc., the Tribunal is not endowed with any power of a court. Nevertheless, as discussed above, the Tribunal determines a question of enormous importance relating to the citizenship of a person. The effect of the decision of the Tribunal will have serious repercussion as regards various rights enjoyed by a citizen in the country. A negative opinion will divest such a person of most of the rights, both legal and constitutional, enjoyed by a person in a country. Unlike various domestic Tribunals Page No.# 17/30 which are functioning in the country, which merely decide various statutory rights of the stakeholders, the Foreigners Tribunals decide the question of enormous importance of citizenship of a person. It may be also noted that unlike many of the Tribunals, for which appellate fora have been provided, there is no such appellate forum as against any decision of the Foreigners Tribunals. Thus, the opinion of the Foreigners Tribunal virtually is final and conclusive. Though, a proceeding before the Tribunal is neither in the nature of a civil suit or a criminal trial, nevertheless it is quasi-judicial proceeding as also observed by the Hon'ble Supreme Court in Abdul Kuddus Vs. Union of India, (2019) 6 SCC 604 . Though a quashi-judicial body, it partakes many attributes of a court proceeding. It is in this context that the proceeding before a Foreigners Tribunal, though a quasi-judicial body, deserves meticulous attention from this Court while exercising the power under Article 226 of the Constitution of India.
38.5 Thus when any challenge is made before this Court regarding an opinion passed by the Foreigners Tribunal, as also routinely urged before this Court that, there was no proper investigation conducted prior to making a reference to the Foreigners Tribunal, it is important for this Court to examine whether such proper investigation had been carried out or not. In fact, it was also one of the contentions raised before the Full Bench of this Court in Moslem Mondal(FB) as clearly reflected in paragraph No.96 of the judgment, as quoted above that in some cases even without visiting the place where such proceedee resides and also without giving any opportunity to produce the relevant documents to substantiate that the proceedee is not a foreigner, a report is made and such report is accepted by the referral authority and thereafter, the reference is made to the Tribunal.
38.6 In that background, the Full Bench highlighted the importance of a fair investigation Page No.# 18/30 and fair trial which is a component of the fundamental right as guaranteed under Article 21 of the Constitution, emphasising the necessity of conducting a proper and fair investigation and submission of proper report on such investigation to the authority concerned. The Full Bench impressed upon the referral authority not to make any reference in a mechanical manner by mandating that the referral authority has to apply his mind on the materials collected by the investigating officer during the investigation and make the reference on being satisfied that there are grounds for making such reference. The Full Bench also directed that the referral authority while making the reference, shall produce all the materials collected during investigation before the Tribunal, as the Tribunal is required to prima facie satisfied about the existence of the main grounds before issuing the notice to the proceedee (vide para nos. 97 and 98).
38.7 As regards requirement of making a proper reference by the referral authority, the decision of this Court in W.P.(C) No. 1293 of 2021 (Sona Kha @ Sona Khan Vs. Union of India and 9 others) decided on 24.03.2021 may be referred to, in which it has been emphasised that the referral authority must make the reference on the basis of the findings given by the investigating authority. If the finding of the investigating authority is that the person concerned is believed to be an Indian citizen, the question of making a reference by the referral authority that the person is suspected to be an illegal immigrant does not arise and any such reference will be arbitrary and fall foul of Article 14 of the Constitution. In our view if the Tribunal is satisfied that no proper enquiry had been undertaken nor the inquiring authority had come to the conclusion that the person concerned is suspected to be an illegal immigrant, the question of making a reference to the Tribunal for its opinion will not arise. 38.8 Thus, before the Foreigners Tribunal issues notice to the proceedee, the following Page No.# 19/30 conditions must be satisfied.
(i) There must be fair and proper investigation made by the investigating authority, before a reference is made to the referral authority, thus, is sine quo non, before a reference is made.
(ii) The referral authority cannot make the reference in a mechanical manner. The referral authority has to apply his mind on the materials collected by the investigating officer during the investigation and make the reference on being satisfied that there are grounds for making such reference.
(iii) If the referral authority does not agree with the findings of the investigating officer, reasons must be assigned while taking a different view and for making a reference.
In other words, if the investigating officer does not give a finding that the person in question is not a foreigner, the referral authority cannot make reference de hors the finding of the findings of the investigating authority. If the referral authority, still decides to make a reference, reasons must be given for not agreeing with the finding of the investigating authority and for making the reference, otherwise, the reference will be suffered from arbitrariness and thus hit by the Article 14 of the Constitution.
(iv) The referral authority, while making the reference, shall produce all the materials collected during investigation before the Tribunal.
(v) The Tribunal must be prima facie satisfied about the existence of the main grounds before issuing the notice to the proceedee.
(vi) As a corollary, a proceedee will have a right to challenge the reference made on the ground of non-compliance of any of the above requirements, before the proceeding Page No.# 20/30 commences before the Tribunal so as to avoid any needless proceeding, if no such case for proceeding against the proceedee is made out.
39. Keeping the aforesaid legal position in mind, we will examine the present case.
40. From the records, it is clear that certain enquiry was initiated sometime in 1997 as can be seen from the Verification Officer's Report of one D. Chakravarty, Junior Engineer (Sr. Grade), P.W.D. Building Division, Dhubri which was submitted to the Electoral Registration Officer. In the verification report, the name of the petitioner has been reflected as "Aimona" with the particulars in para No.1, 2, 3, 4 and 5 of the said format showing the address as 126 Jhalerealga Pt.-I, her husband's name as Sahed Ali, with date of birth as 1972, place of birth as Jhaleralga Pt.I, P.S. Gauripur and in para No.8 as to whether the father is an elector of any constituency in India, "Yes" has been ticked. As regards para No.9 for providing Serial No. and Part No. of the concerned electoral roll together with the Constituency Number, name of State, the details have been provided as 1966, Assam, 34 Gauripur, part No.128 and SL. No.13, House No. 11 (Jamal Mondal).
In para No.14 *(xiii) about any certificate issued by Secretary of Village Panchayat countersigned by the local Revenue official in respect of females who have migrated to other villages after marriage, date of issue has been mentioned as 02.10.97 and the name of issuing authority has been shown as "Geramara Gaon Panchayat".
The other entries in the form have been kept empty without making any entry. On the bottom left of the said format, the AERO (Assistant Electoral Registration Officer) to whom the said format was submitted made an observation on 15.10.1997 in the following words, "Seen L.V.O.'s report, Page No.# 21/30 inclusion allowed."
41. Thus, one may infer that there is nothing in the verification report to indicate that the petitioner Ayomona Bibi @ Aimona Bibi was suspected to be a foreigner. Rather, the concerned AERO recommended inclusion of the name of the petitioner in the electoral list.
In other words, there is absence of any finding or observation by the concerned authority at the time of enquiry that the petitioner is a foreigner or is suspected to be a foreigner.
42. This Court also has also perused one noting by an election official, Upaparidarshak of the Election Commission (I.C. Sonamukhi Nirvachan Kendra) where there is a remark in respect of a format under Assam Schedule XL (A) (Part I) Form No. 145, Police Station Chapar, District Dhubri, observing that regarding the reference, the LVO has filled up the Form "A" after making local verification in respect of the suspected voter and the ERO has sent the report to Superintendent of Police after giving his opinion. He further noted that as per IM(D)T Rule and Election Commission's guidelines they have no authority to make local investigation and accordingly, as per order of Superintendent of Police, after carefully going through the Annexure A, he filled up the Form No. VII and that the L.V.O. and E.R.O. will verify the reference.
43. There is another document which is the order of the reference made by the referral authority, which is in Form VII under (Sec Rule 9 A) signed by the Superintendent of Police, Dhubri in which the particulars of the petitioner Aimona Bibi have been reflected as the wife of Sahed Ali, of village 126 Jhaleralga Pt. I, P.S. Gauripur, age 26 years. However, in the said Form at serial No. 7 as to whether the person's name appeared in the electoral rolls prepared Page No.# 22/30 prior to 25 days of March/1971, if so to provide details, it has been recorded as "Not".
Similarly, in respect of entry at serial No.8 as to whether the persons name appear in public records such as panchayat family refugee Registers etc., it has been recorded as "Not".
In respect of the entry at Serial No.9 where it has been mentioned as to whether the order of Electoral Registration Officer has been attached (Yes/No), it has been mentioned as, "Not, but ERO has passed remarks on the bottom of Annexure "A"."
In respect of name and substantive designation of Electoral Registration Officer, it has been mentioned as "E.R.O. of 24 Gauripur LAC".
As regards the grounds for having reasonable doubt that the person concerned is an Illegal Migrants, it has been mentioned as "As stated in column No.7 and 8".
Thus, in the said report submitted by the Superintendent of Police, Dhubri, the Superintendent of Police, Dhubri apparently took the view that the petitioner is suspected to be an illegal migrant as the name of the person does not appear in the electoral rolls prepared prior to 25 days of March 1971, and also that his name does not appear in any public records of Panchayat, family refugee Registers etc. and therefore, the matter was referred to the I.M.(D). Tribunal, Dhubri and it was registered as I.M.(D).T. Case No. 19377/D/03. Subsequently, the matter was transferred to Foreigners Tribunal No.5, Dhubri and was registered as Case No. FT/5 GPR/309/2017.
However, it may be noted, as discussed above, the AERO had remarked in the Inquiry Report submitted that, "Seen LVO's report. Inclusion allowed." Thus, the reference made by the Superintendent of Police appears to be contrary to the remark of the AERO.
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44. What emerges from the above is that during the enquiry made by the Verification Officer about the citizenship of the petitioner, there is nothing on record to suggest that the petitioner is a foreigner and when the enquiry report prepared by the Verification Officer was placed before the AERO of the Election Commission, the AERO having seen the LVO's report, recommended inclusion.
In that context, we had enquired from the learned Special Counsel, Foreigners' Tribunal as to the real meaning and purport of the expression, "inclusion allowed", used by the AERO. However, he could not throw any light to indicate how the person under investigation could be doubted as a foreigner. He could not explain what is meant by "inclusion allowed". On the other hand, he submits that it was the referral authority who having doubt about the citizenship of the petitioner on her inability to show her inclusion in any electoral roll prepared prior to 25 days of March, 1971 and absence of her name in any public records such as Panchayat, family refugee registers, etc, made the reference.
However, we are unable to accept the explanation of the learned special counsel as the referral authority also mentioned about the remark by the AERO, yet did not make any comment on it, as to the meaning of the remark by the AERO. If the referral authority did not agree with the remark "inclusion allowed", the referral authority ought to have given some reasons for not agreeing with such a remark. However, there is nothing on record of any such exercise undertaken by the referral authority.
45. Under the circumstances, when we try to understand the real meaning and purport of the expression "inclusion allowed" in the context and background of the enquiry, we think that it can mean only inclusion in the voters list. Since, the enquiry report did not indicate any Page No.# 24/30 evidence or circumstances to show that the petitioner was a foreigner, the only reasonable inference that can be drawn is that the expression "inclusion allowed" can only mean inclusion in the valid voters list.
46. Under the circumstances, we are of the opinion that the reference made by the referral authority does not appear to be based on records, rather, it is contrary to the records. We have also noted that the Tribunal did not examine these aspects as required as held by the Full Bench in Moslem Mondal (supra) in paragraph 98 as quoted above.
47. On this ground, we are inclined to interfere with the proceeding and opinion of the Tribunal, as being initiated without proper application of mind. As held by this Court in a number of decisions including in Moslem Mondal (supra), the Tribunal gets the jurisdiction to initiate the proceeding only when a valid reference is made, we are of the view that the present proceeding is not sustainable in law.
48. However, before we make our final opinion regarding the proceeding, we would like to examine whether it is a case of no evidence that the petitioner was declared a foreigner.
49. After the petitioner was served with summons, the petitioner appeared before the Tribunal on 15.02.2017 and sought time for filing written statement. Later, the petitioner again filed an application on 20.03.2017 seeking time to file the evidence on the ground that the petitioner is going to apply for birth certificate to establish linkage. However, the learned Tribunal found the said application to be unreasonable and rejected the same, but granted another opportunity to file her evidence on the next date with the caution not to default on the next date.
The aforesaid order was passed on 20.03.2017 reads as follows.
Page No.# 25/30 "20/03/2017, O.P. is present along with her ld engaged Counsel. Ld. AGP is also present O.P had filed a petition praying for time to file her evidence on the ground that the O.P. is going to apply for birth certificate to establish linkage. Seen the petition vide No. 902 dtd. 20/03/2017. That the present proceeding has been initiated under the Foreigners Tribunal Order 1964. The Foreigner Tribunal Order provides only 10 days time to file W/S and 10 days time to filed evidence which the O.P. had already availed the opportunity. The plea of O.P. that she is going to apply her birth certificate is found to be unreasonable and unfounded as the OP already aware of the proceeding initiated against her since 1998. At this stage no opportunity can be given to apply for a new certificate. As per section 9 of the Foreigners Act 1946 the burden is upon the O.P. and will have to produce the document that is within her knowledge And as such the plea of O.P that she is going to apply for the birth certificate is not tenable under the law and accordingly petition is rejected however in interest of natural justice and fair play an opportunity is given to the O.P to file her evidence on the next date with a caution not to default on the next date.
Fix-10/4/2017 For- evidence of op."
50. Thus, the matter was proceeded on the next date on 10.04.2017 when the petitioner filed the deposition-in-affidavit and the matter was fixed on 08.05.2017 for cross- examination. On 08.05.2017 both the petitioner and the another witness DW-2 were cross- examined and the matter was closed for argument and the opinion was rendered on 31.05.2017.
51. From the records, it is seen that the petitioner had filed certain documents. In the written statement, the petitioner had mentioned that she is an Indian by birth and her name is recorded in the voters list and married to one Ahed Ali and her father's name is Jamal Mondal. The petitioner also filed a certificate issued by the President of Geramari Gaon Page No.# 26/30 Panchayat countersigned by its Secretary i.e. B.D.O. She also stated that her father Jamal Mondal is an Indian citizen and his name has been recorded in 1951 NRC vide House No.91, Serial No. in House 4 with Legacy Data Code 340-0010-4018, Image ID -24100534, age 22 under Image District name Goalpara, Sub-Division name Dhubrithana town-Dhubri of village Jhaleralga in 1951 and her father's name has been recorded as Jamal Uddin Mondal instead of his actual name Jamal Mondal by annexing a copy of N.R.C. Legacy Date Code and also annexed voters list of 1966 and 1966 Legacy Data Code where the name of her father appears under 34 Gauripur L.A.C. vide Serial No.11, House No.13 with Legacy Data Code 340-4037-7810 as Jamal Mondal.
52. Similarly, the petitioner has also filed the 1971 Legacy Data and in the voters list of 1971 the name of Jamal Mondal is shown under 34 Gauripur L.A.C. vide Serial No. 14, age 39 under Legacy Data Code 340-2007-1517 under Image District Goalpara Thana Town Dhubri of village Dolsingher Alga Part-II.
53. Petitioner also submitted a copy of the photo identity card issued by the Election Commission of India and the voters lists of 1966 and 1970.
54. Before this Court, the petitioner filed the voters list of 1997 where her name appears at Serial No.639 along with her husband Sahed Ali Sk at Serial No.638 under No.126 Jhaleralga, Police Station Dhubri, District Dhubri of 282 No. Gauripur Constituency of Assam Legislative Assembly as also the voters list of 2005 where her name appears at Serial No. 1039 and her husband's name at 1038 under 24 Gauripur Legislative Assembly Constituency and also the voters list of 2015 where her name also appears along with her husband at Serial No. 618 under 34 Gauripur Assembly Constituency.
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55. As can be seen from the impugned order dated 31.05.2017, the learned Tribunal held that the petitioner had not mentioned her mother's and grandparents' names and also did not mention about the brothers and sisters of her father which are within the personal knowledge of the petitioner and as such, non-mentioning of these particulars would render her evidence not credible. The Tribunal also observed that the Geramari Gaon Panchayat Certificate issued by the Secretary and countersigned by the B.D.O. has not been proved as the author who issued the said certificate was not examined and as such not admissible.
56. As regards the other witness, one Esha Hoque Mondal DW-2, who claimed to be her brother, the learned Tribunal noted that in his deposition DW2 had not stated or mentioned his parents' names though he had identified the petitioner as his younger sister and about her marriage with Sahid Ali. The learned Tribunal did not find the testimony of the aforesaid DW2 trustworthy as there was some inconsistency regarding the year of marriage of his sister and also about the death of his father.
57. As regards the voters lists of 1966 and 1970, it was held by the learned Tribunal that mere filing of the said documents cannot prove the link.
58. Accordingly, the learned Tribunal held that in absence of documentary evidence the petitioner has failed to prove the existence of her parents in Indian soil prior to 1971 and as such the petitioner cannot be said to be born and brought up through genuine Indian parents.
59. Thus, from above what transpires is that the learned Tribunal held that the petitioner could not establish the link between herself and her projected parents apart from other inconsistencies in the evidence of DW2.
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60. This Court has noted two striking features in this case, warranting our interference.
Firstly, as discussed above, during the verification made by the concerned Enquiring authority as reflected in the Verification Officer's report, it has been clearly mentioned that there is nothing to doubt the citizenship of the petitioner. On the contrary, the concerned ERO made the recommendation for inclusion of the name of the petitioner. However, contrary to the said recommendation, the Superintendent of Police referred the matter to the I.M.(D). Tribunal (and later, transferred to the learned Tribunal) on the ground that the name of the petitioner does not appear in any voters list prior to 25 days of March, 1971 and also the name does not appear in any public records such as Panchayat Family Refugee Registers etc. But the Verification Officer had clearly mentioned in his report that the proceedee had produced a certificate dated 02.10.1997 issued by the Geramani Gaon Panchayat. Thus, this observation of the Superintendent of Police does not concord with the Verification Officer's report.
61. As discussed above, the Tribunal was also required to examine carefully and arrive at its own satisfaction based on the reports so received as mentioned specifically in para No.98 of Moslem Mondal (supra) as quoted above, in the context of conflicting views given by the enquiring authority and by the referral authority. Unfortunately, there is nothing on record to indicate any such exercise was undertaken by the Tribunal before summons were issued to the petitioner.
62. Another striking feature is the refusal by the Tribunal to grant time to the petitioner to procure the birth certificate to prove her linkage with the projected father.
63. We are of the view that a valid birth certificate issued by the competent authority, Page No.# 29/30 perhaps, could be a clinching evidence of her linkage with her projected parents. It is one of the most crucial documentary evidences and if could be produced by any proceedee would greatly help in establishing one's claim. In the present case, as discussed above, the said prayer to grant time to obtain birth certificate was rejected by the Tribunal merely on the ground that it is not reasonable and would delay the proceeding.
64. It is clearly seen from the record that the petitioner is an illiterate as she had been appearing before the Tribunal by putting her signature by way of thumb impression. It is also generally known that documents like birth certificates are not properly maintained in rural areas and as such, there will be some impediments on the part of any rustic villager to obtain birth certificate from the competent authority expeditiously and since the petitioner had made a specific request to apply for the birth certificate, in our view, that prayer ought to have been allowed by the Tribunal by giving some reasonable time which unfortunately, was not allowed.
65. Fair trial includes reasonable opportunity to be granted to a person to prove a case.
66. In the present case, as the issue of citizenship is involved and that document (birth certificate) is a very vital evidence to prove her linkage, in our view, the prayer of the petitioner ought not to have been rejected but ought to have been allowed by the Tribunal.
67. In fact, what has happened in the present case is that the Tribunal held that the petitioner had failed to prove her linkage with her projected father holding absence of any documentary evidence. In our view, if the petitioner had been able to produce the birth certificate as requested by her before the Tribunal, that could have provided the crucial documentary evidence to prove her linkage with her father.
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68. Under the circumstances, keeping the aforesaid two aspects which have been highlighted as above, we are of the view, that the petitioner had not been afforded a fair trial by the Tribunal and also there was no proper application of mind by the Tribunal before accepting the reference as there were conflicting reports by the Enquiring authority and the Referral Authority about the citizenship of the petitioner.
69. Accordingly, we are inclined to allow this petition by setting aside impugned order dated 31.05.2017 passed by the learned Foreigners' Tribunal (5 th), Dhubri, in Case No.FT- 5/GPR/309/2017.
70. Resultantly, the petition is allowed by setting aside the impugned order dated 31.05.2017 passed by the learned Foreigners Tribunal No.5, Dhubri in FT-5/GPR/309/2017 [R/IM(D)T Case No. 2448/98].
71. However, since we have set aside the proceeding primarily because of the procedural lapses, the respondent authorities will be at liberty to proceed against the petitioner de novo, if there are valid reasons for doing so only after a proper application of mind by the authorities concerned and by adhering to the due process as clearly provided under the rules and as observed by the Full Bench in Moslem Mondal (supra).
72. Case records be remitted immediately to the concerned Tribunal.
JUDGE JUDGE Comparing Assistant