Delhi District Court
State vs . Mohd Sharif. on 27 August, 2016
IN THE COURT OF Ms. VANDANA JAIN
ACMM-02 (CENTRAL) : DELHI
State Vs. Mohd Sharif.
FIR No. : 140/03
PS : Roop Nagar
U/s : 14 Foreigners Act 1946
Date of Institution : 30.05.2003
Date of reserving of order: 24.08.2016
Date of announcement : 27.08.2016
Unique I. D. No. : 02401R0882452003 & 292968/16
JUDGMENT
1. Serial No. of the case : 50/03 2. Name of the Complainant : SI Ajay Kumar Gupta, 3. Date of incident : 01.04.2003
4. Name of accused persons : 1. Mohd Sharif S/o Mohd Tuffail R/o 616, Farsh Khana, Delhi
2. Begum Sarmina W/o Mohd Sharif R/o 616, Farsh Khana, Delhi
5. Offences : U/s 14 Foreigners Act.
6. Plea of accused : Pleaded not guilty
7. Final Order : Acquitted.
8. Date of such Order : 27.08.2016 FIR No. 140/003 PS Roop Nagar Page no. 1 of 13 BRIEF REASONS FOR SUCH DECISION:
1. The brief facts of the present case are that on 01.04.2003, at instance of secret informer, the crime branch officials apprehended accused Mohd Sharif and Begum Sharmina who were found residing alongwith their children at the house of Husan Bano, Gali no. 3, Sangam Vihar, Wazirabad and both accused persons failed to produce any document or gave any satisfactory answer with respect to their stay in India despite being Pakistani Nationals. The passports were seized and it was found that they were residing at H. No. 226, Mustafabad, Lahore and had come for twenty days on visa on 26.11.2001 to India and were staying in India illegally. On the basis of the complaint, FIR 140/03 u/s 14 Foreigners Act 1946 was registered against both accused persons.
2. Investigation was carried out by IO. After carrying out the investigation, charge sheet was filed against Mohd Sharif and Begum Sharmina. Accused persons were summoned. After compliance of section 207 Cr.P.C, charge u/s 14 Foreigners Act was framed against both accused persons on 25.05.2005.
3. Thereafter, matter was listed for prosecution evidence.
4. Prosecution cited six witnesses out of which all of them have been examined.
5. PW-1 Ct Hira Singh who stated that he was posted as Constable at FIR No. 140/003 PS Roop Nagar Page no. 2 of 13 Crime Branch, Special Team. On that day, he joined the investigation of this case alongwith SI Ajay Gupta, Inspector, Indira Sharma and HC Azad Singh. On that day, they all reached at a house at Sangam Vihar Gali No. 3, Timar Pur area. At the instance of secret informer, they apprehended both the accused persons namely Md Sharif and Begum Sharmina and they were found to be Pakistani Nationals and they were found staying in India without having any valid documents. Both the accused persons were interrogated by the IO, but they could not produce any valid documents for their illegal stay and neither they gave any satisfactory answer. Both accused persons had produced their Pakistani passports to the IO but they were found to be expired. IO prepared a Rukka against both accused persons and same was handed over to him for registration of FIR. He took the Rukka to PS Timarpur and got the case registered. After registration of case, he came back at the spot and handed over original Rukka and copy of FIR to IO. IO interrogated both accused persons and seized five passports from their possession, out of which four were Pakistani and one was Indian and one visa application, one birth certificate, and ration card.
6. PW-2 HC Azad Singh also reiterated the same facts as stated by PW-
1 Ct Hira Singh.
7. PW-3 is HC Hari Prasad, Duty Officer in the present case.
8. PW-4 is HC Rajesh Kumar who had come from Pak Section, Special FIR No. 140/003 PS Roop Nagar Page no. 3 of 13 Branch, Police Bhawan, Asaf Ali Road, Delhi and proved that Mohd Sharif arrived in India on 11.12.2000 and his wife arrived on 22.11.2000 alongwith three children and later on both these Pakistani Nationals were departed from India on 28.02.2001. He proved entry of both of them in register. He also stated that on 01.03.2001, both of them crossed the border by Atari Express. He also produced permit of both accused persons and departure register.
9. PW-5 is SI Rambir Singh.
10. PW-6 is SI Ajay Gupta, IO of the present matter.
11. Thereafter, prosecution evidence was closed.
12. Statement of both accused persons u/s 313 Cr.P.C. recorded to which they denied all the allegations leveled by prosecution and wished to lead defence evidence. They produced DW-1 Smt Hoor Bano, mother of accused Begum Sharmina and mother in law of accsued Mohd Sharif in their defence. Thereafter, DE was closed.
13. Final arguments heard. Record perused.
14. Ld counsel for both accused persons argued that accused Begum Sharmia was born in India and her parents were Indian citizen and she is also an Indian citizen. Ld counsel for accused persons has further argued the same submission with respect to Mohd Sharif and only central government could have decided whether the accused persons are Indian FIR No. 140/003 PS Roop Nagar Page no. 4 of 13 citizens or Pakistani Nationals.
15. Ld APP for State has submitted that case has been proved against both accused persons beyond reasonable doubts and material is sufficient to hold both accused persons guilty and they be punished as per law.
16. Final arguments heard. Record perused.
17. Before coming to the facts of the present case, let us see the position of law. Any person who is not a citizen of India is a foreigner. Section, 3, 4, 5, and 6 of Citizenship Act 1955 provides as to how the citizenship of India can be acquired. It can be acquired by birth, by descent, by registration or by naturalization.
18. Section 8 of The Citizenship Act 1955 provides Renunciation of citizenship and Section 9 of of The Citizenship Act 1955 provides termination of citizenship.
19. Section 9 of The Citizenship Act 1955 provides as under:-
(1) "Any citizen of India who by naturalisation, registration or otherwsie voluntarily acquires, or has at any time between the 26 th January, 1950 and the commencement of this Act, voluntarily acquired, the citizenship of another country shall, upon such acquisition or, as the case may be, such commencement, cease to be a citizen of India;
Provided that nothing in this sub-section shall apply to a citizen of India who, during any war in which India may be engaged, voluntarily FIR No. 140/003 PS Roop Nagar Page no. 5 of 13 acquires the citizenship of another country, until the Central Government otherwise directs:
(2) If any question arises a to whether, when or how any [citizen of India] has acquired the citizenship of another country, it shall be determined by such authority, in such manner, and having regard to such rules of evidence, as may be prescribed in this behalf".
20. The Constitution Bench of Hon'ble Supreme Court in case titled as Govt of Andhra Pradesh Vs. Syed Mohd. Khan SCR 1962 has observed that "In all cases where action is proposed to be taken against persons residing in this cournty on the ground that they have acquired Citizenship of a foreign state and have lost in consequence the citizenship of this country, it is essential that the question should first be considered by the Central Government. In dealing with the question tht Central Government would undoubtedly be entitled to give effect to r. 3 in Sch. III of the Citizenship Rules and deal with the matter in accordance with the other relevant rules framed under the Act".
"It cannot be said that by virtue of Section 9 of the Act as soon as it is shown that a person has acquired a passport from the Pakistan Government, there is an automatic statutory cesser of his Citizenship of India. The quest on about the status of the respondents has to be tried FIR No. 140/003 PS Roop Nagar Page no. 6 of 13 by the Central Government and it is only after the Central Government has reached the conclusion that the respondents have acquired the citizenship of Pakistan that the authorities can issue order of deportation against such person".
21. It was observed in judgment "State of UP Vs Rahmatullah Crl. Appeal No. 167 of 1968, DoD 23.04.1971" that "till the Central Government determined the question of the respondent having acquired Pakistan nationality, and had thereby lost Indian nationality, he could not be treated a a foreigner and no penal action could be taken against him on the basis of his status a a foreigner, being a national of Pakistan".
22. It was also observed that " Indeed, it is clear that in the course of the judgment, this Court has emphasised the fact that the question as to whether a person has lost his citizenship of this country and has acquired the citizenship of a foreign country has to be tied by the Central Government and it is only after the Central Government has decided the point that the State Government can deal with the person a foreigner. It may be that if a passport from a foreign Government is obtained by a citizen and the case falls under the impugned Rule, the conclusion may follow that he has acquired the citizenship of the foreign country, but that conclusion can be drawn only by the FIR No. 140/003 PS Roop Nagar Page no. 7 of 13 appropriate authority authorized under the Act to enquired into the question. Therefore, there is no doubt that in all cases where action is proposed to be taken against persons residing in this country on the ground that they have acquired the citizenship of a foreign State and have lost in consequence the citizenship of this country, it is essential that that question should be first considered by the Central Government. In dealing with the question of Central Government would undoubtedly be entitled to give effect to the impugned R. 3 in Sch III and deal with the matter in accordance with the other relevant Rules framed under the Act. The decision of the Central Government about the status of the person is the basis which any further action can be take against him".
23. Reliance was placed upon judgment State of Andrha Pradesh Vs Abdul Khader (1962) 1 SCR 737 = (AIR 1961 SC 1467) wherein it is observed that :- " the respondent there wa born in India in 1924 and had lived in this country all along till about the end of 1954. At the end of 1954 or the beginning of 1955 he went to Pakistan from where he returned on January 20, 1955 on a passport granted by the Pakistan Government which had a visa enbdorsed on it by the Indian authorities permitting him to stay in this country upto April 1955. He applied to the Central Government for extension of the time allowed FIR No. 140/003 PS Roop Nagar Page no. 8 of 13 by the visa, but there was no material to show what orders, if any, were made on it. The respondent having stayed in this country beyond the no material to show what orders, if any, were made on it. The respondent having stayed in this country beyond the time specified in the visa, on September 3, 1957 he was served with an order under Section 3 (2) © of the Foreigners Act, requring him to leave India. On his failure to comply with this order he was prosecuted under Section 14 of the Foreigners Act. His defence was that he was an Indian national. We Magistrate trying him rejeced his defence and convicted him holding that he had disowned Indian nationality by obtaining a Pakistan passport and that by refusing to extend the time fixed by the visa the Central Government had decided that the respondent was s foreigner under Section 8 of the Foreigners Act and that such a decision was final. He was convicted by the Trial Court and the conviction was upheld by the Sessions Judge. The High Court in revision set aside his conviction. On appeal this Court held that neither the Magistrate nor the Sessions Judge was competent to come to a finding of his own that the respondent an Indian national, had disowned his nationality and acquired Pakistan nationality for under Section 9 (2) of the Citizenship Act that decision could only be made by the prescribed authority. The respondent in FIR No. 140/003 PS Roop Nagar Page no. 9 of 13 that case, acording to this Court had become an Indian Citizen under Article 5 (a) of the constitution when it came into force and there being no determination by the Central Government that he had lost nationality thereafter, the order of the High Court acquitting him was upheld".
24. In view of the aforesaid judgments, it can be very well concluded that case a person has renunciated Indian citizenship and had acquired foreign nationality, the question whether that person still continues to be an Indian citizen or becomes a foreign national, can only be decided by the Central Government as per Section 9 sub section (2) of Indian Citizenship Act 1955.
25. Now, coming to the facts of the present case, the version of the prosecution is that at the instance of secret informer both accused persons namely Mohd Sharif and Begum Sharmina were apprehended and were found to be living in India alongwith their children without having any valid documents and certain passports were also seized from their possession. PW-1 Ct Hira Lal, PW-2 HC Azad and PW-6 SI Ajay Gupta had proved the recovery of those passports from the accused persons out of which four were Pakistani passports and one were Indian passport of Mohd Sharif. The recovery of those passports from the accused persons have not been disputed and have been proved as no question has been put with respect FIR No. 140/003 PS Roop Nagar Page no. 10 of 13 to non recovery of those passports from the accused persons specifically. However, apart from summoning PW-4 Rajesh Kumar from Pak Section, Special Branch, Police Bhawan, Asaf Ali Road, Delh who had brought the record with respect to accused Mohd Sharif and Begum Sharmina, there is no other witness who proved those passports to have been issued by Pakistan Government. Ld counsel for accused persons has stated that acused Begum Sharima was born in India. She had taken up education from school in Delhi and thereafter marriage she shifted to Pakistan and she still continues to be an Indian citizen. The passports were Ex. PW1/A to Ex. PW1/E. Passport of accused Sharmina which is endorsed with the fact that she held Pakistan citizenship certificate w.e.f. 11.10.1995, however, this passport alongwith this endorsement has not been proved in the present case by calling a person from the embassy of Pakistan. Similarly, it has come on record that accused Mohd Sharif was also born in India. Ration card bearing Ex. PW1/H is issued in the name Mohd Tuffail R/o A- 21, Amarpuri, Paharganj, Delhi was also seized from the possession of accused persons wherein the namely of Mohd Sharif is also mentioned. The same was issued on 01.01.1978, meaning thereby that accused Mohd Sharif was also an Indian Citizen at one point of time. The Pakistani passports allegedly recovered from the possession of accused persons have not been proved by the prosecution in accordance with law. Though, it FIR No. 140/003 PS Roop Nagar Page no. 11 of 13 has been proved by prosecution that they were residing in Pakistan and they had arrived in India on a visa for twenty days, showing their over stay in India but here in the present case since passport of both accused persons have not been proved in accordance with law, therefore, this court does not have the jurisdiction/power to ascertain the citizenship of both accused persons in view of Section 9 (2) of Citizenship Act 1955 for the reasons that power vests only with the Central Government and it is for them to come to a finding that accused persons had renunciated their Indian nationality and had become Pakistani citizen and had come to India as Pakistani nationals for a temporary visit and, therefore, stayed in India illegally. Had this been the case that the passports would have been proved as per law, the same could have used against the accused persons for the purposes of ascertaining their nationality as their passports bears the Pakistan identity numbers of accused persons which shows that they are citizens of Pakistan.
26. PW-6 SI Ajay Gupta in his cross examination has clearly admitted that he had not referred the matter to the Government. He voluntarily stated that there was no need for the same. In view of the judgments discussed above, Govt of Andhra Pradesh Vs. Syed Mohd. Khan SCR 1962 & State of UP Vs Rahmatullah Crl. Appeal No. 167 of 1968, DoD 23.04.1971, without referring the matter to the government and without Central FIR No. 140/003 PS Roop Nagar Page no. 12 of 13 Government deciding whether accused persons had become Pakistani citizens and were foreigners at the time of alleged incident no penal action was warranted against them. Therefore, in my considered view, offence u/s 14 Foreigners Act 1946 is not proved against accused persons and both of them are acquitted from the charge framed for the offence u/s 14 of Foreigners Act 1946.
27. Put up for furnishing of bail bonds U/s 437 A Cr.P.C.
Announced in the open court (VANDANA JAIN)
on 27.08.2016 ACMM-02/CENTRAL
DELHI
FIR No. 140/003 PS Roop Nagar Page no. 13 of 13