Masud Khan Vs. State of Uttar Pradesh
 INSC 179 (26 September 1973)
KHANNA, HANS RAJ SARKARIA, RANJIT SINGH
CITATION: 1974 AIR 28 1974 SCR (1) 793 1974
SCC (3) 469
Foreigners (Internment) Order, 1962--Proceedings
under, if Criminal--Issue-Estoppel.
Foreigners Act (13 of 1946), s. 9--Person
with Pakistani passport claiming to be Indian citizen--Burden of proof.
The petitioner came to India from Pakistan on the basis of a Pakistani passport of July 1954 and Indian visa of
April, 1956. On his arrest under the Foreigners (Internment) Order, 1962, he
contended that he was an Indian citizen and that he had been illegally arrested
and confined in jail.
HELD : (I) Under s. 9 of the Foreigners Act
whenever a question arises whether a person is or is not a foreigner the onus
of proving that he is not a foreigner lies upon him. If the petitioner had been
in India on 26-1-1950 but had gone to Pakistan in 1951, it would be for the
Central Government to decide whether he is a Pakistani national or an Indian
citizen even though he may have come lo India on a Pakistani passport in 1956.
But, when he went to Pakistan is a matter peculiarly within his knowledge and
he had not produced any evidence in support of his statement that he went to Pakistan only in 1951. The burden is upon the petitioner to establish that he is a citizen
of India in the manner claimed by him and this burden, not having been dis-
charged by him, it should be held that he is a foreigner and his claim that he
is an Indian citizen must be rejected.
[794 C-H] (2) The petitioner was prosecuted
under s. 14 of the Foreigners Act and was acquitted on the ground that he was
not a foreigner; but this finding would not operate as issue-estoppel.
Issue-estoppel arises only if the earlier as well as subsequent proceedings
were criminal prosecutions. In the present case, while the earlier one was a
criminal prosecution, the latter is not a criminal prosecution, but merely
action taken under the Foreigners (Internment) Order for the purpose of
deporting the petitioner out of India. [794H; 795D-E; 796 HI Pritam Singh v.
State of Punjab, A.I.R. 1956 S.C. 415, Manipur Administration v. Thokchom, Bira
Singh  7 S.C.R. 123, Piara Singh v. State of Punjab [19691 1 S.C.C.
379, referred to.
Sambasivam v. Public Prosecutor, Federation
of Malaya [19501 A.C. 458, The King v. Wilkes 77 C.L.R. 511 and Marz v. The
Queen TF C.L.R. 62, applied.
ORIGINAL JURISDICTION : Writ Petition No. 117
Under Article 32 of the Constitution of India
for issue of a writ in the nature of have as corpus.
Uma Datta, for the petitioner.
D. P. Uniyal and 0. P. Rana for the
The Judgment of the Court was delivered by
ALAGIRISWAMI, J. Petitioner Masud Khan prays for his release on the ground that
he, an Indian citizen has been illegally arrested and confined to, jail under
Paragraph 5 of the Foreigners (Internment) Order, 1962. He had come to India
from Pakistan on the basis of a Pakistani passport dated 13- 7-1954 and Indian
visa dated 9-4-1956. In his application for visa he had stated that he had
migrated to Pakistan in 1948 and was in Government service in Pakistan in
794 as a Darogha and had given his permanent
address as Hyderabad (Sind). If these statements were correct the petitioner
would clearly be a Pakistani national. When this fact was brought out in the
counter affidavit filed on behalf of the respondent, the petitioner filed a
further affidavit stating that he was appointed as a Police Constable in
Hasanganj Police Station, District Fatehpur, U.P. in February 1947 and
continued as a Police Constable till the middle of 1950 when he was dismissed
from service, and that he went to Pakistan in the year 1951. In the reply
affidavit filed on behalf of the respondent it is stated that one Md. Masood
Khan son of Zahoor Khan was enrolled as Police Constable on 16-9-1947 and he
was discharged from service on 20-5-1949. It is fairly clear that this
information culled from the English Order Book from 1-10- 1947 to 27-12-1951 refers
to the petitioner. While, therefore, it is established that the petitioner did
not go to Pakistan in 1948, it cannot be said that it has been established that
the petitioner went to Pakistan only in 1951. When he went to Pakistan is a
matter peculiarly within his knowledge and the produced no evidence in support
of that statement. Considering the frequent change of ground which the
petitioner has resorted to, a mere statement from him cannot be accepted as
true. Nor can we accept his contention that it is for the respondent to
establish that lie did not go to Pakistan in 1951 but that he went on some
other date. The petitioner has also alleged that he was married in U.P. on 25th
December, 1949. Even assuming that this statement is correct, the petitioner
cannot establish that he is a citizen of India unless lie succeeds in
establishing that he was in India on 26-1-1950.
If he bad been in India on 26-1-1950 but had
gone to Pakistan in 1951 it would be for the Central Government to decide
whether he is a Pakistani national or an Indian citizen even though he may have
come to India on a Pakistani passport in 1956 (See AIR 1963 SC 645; AIR 1962 SC
1052; AIR 1962 SC 1778; AIR 1961 SC 1467). That question does not arise here.
We are not prepared to assume that the
petitioner should be deemed to have been present in India on 26-1-1950, as was
urged on behalf of the petitioner. There is no room for any such presumption.
Under s-9 of the Foreigners Act whenever a question arises whether a person is
or is not a foreigner the onus of proving that he is not a foreigner lies upon
him. The burden is therefore, upon the petitioner to establish that be is a
citizen of India in the manner claimed by him and therefore be is not a
foreigner [See [19621 1 SCR 744;  Supp. SCR 5601. This burden not having
been discharged by the petitioner it should be held that he is a foreigner and
his claim that he is an Indian citizen cannot be dealt with under the
Foreigners (Internment) Order, 1962 must be rejected.
It appears, however, that in 1960 he had been
prosecuted before the Sub-Divisional Magistrate, Fatehpur under s. 14 of the
Foreigner--, Act and was acquitted on the ground that he was not a foreigner.
It was therefore contended that the question whether the petitioner is -a
foreigner or not is a matter of issue estoppel. The decision that he 795 was
not a foreigner seems to have been based on the decision of the Allahabad High
Court in Mohd. Hanif Khan v. State (AIR 1960 All. 434). It was held there that
a Pakistani national who entered into India before the amendment to the
Foreigners Act in 1957, when he could not be considered to be a foreigner,
could not be so held because of that amendment. That decision was that of a
learned Single Judge. On the point at issue he differed from an earlier
decision of a learned Single Judge of the same Court in Ali Sher v. The State
(AIR 1960 All. 431). But he decided that case before him on a different point
and did not think it necessary to refer the case before him to a Bench for considering
which of the two decisions was correct on the question regarding the
nationality of a person who came to India on a Pakistani passport before 1957.
There are thus two conflicting decisions of the same court on the same point
and the Magistrate who decided the petitioner's case followed one of them.
But that apart, this matter could be decided
on another point.. The question of issue-estoppel has been considered by this
Court in Pritam Singh v. State of Punjab (AIR 1956 SC 415), Manipur
Administration v. Thokchom, Bira Singh (1964 7 SCR 123) and Piara Singh S.
State of Punjab (1969 1 SCC 379). Issue-estoppel arises only if the earlier as
well as the subsequent proceedings were criminal prosecutions.
In the present case while the earlier one was
a criminal prosecution the present is merely an action taken, under the
Foreigners (Internment) Order for the purpose of deporting the petitioner out
of India. It is not a criminal prosecution. The principle of issue estoppel is
simply this : that where an issue of fact has been tried by a competent court
on a former occasion and a finding has been reached in favour of an accused,
such a finding would constitute an estoppel or res judicata against the
prosecution not as a bar to the trial and conviction of the accused for a
different or distinct offence but as precluding the reception of evidence to
disturb that finding of fact when the accused is tried subsequently, even for a
different offence which might be permitted by law. Pritam Singh's case (supra)
was based on the decision of the Privy Council in Sambasivam v. Public,
Prosecutor, Federation of Malaya (1950 A.C. 458). In that case Lord MacDermott
speaking for the Board said:
"The effect of a verdict of acquittal
pronounced by a competent court on a lawful charge and after a lawful trial is
not completely stated by saying that the person acquitted cannot be tried again
for the same offence. To that it must be added that the verdict is binding and
conclusive in all subsequent proceedings between the parties to the
adjudication." It should be kept clearly in mind that the proceeding
referred to herein is a criminal prosecution. The plea of issue-estoppel is not
the same as the, plea of double jeopardy or autre fois acquit. In The King v.
Wilkes (77 C.L.R. 511) Divon, J. referring to the question of issue- estoppel
79 6 view that there is an issue estoppel, if
it appears by record of itself or as explained by proper evidence, that the
same point was determined in favour of a prisoner in a previous criminal trial
which is brought in issue on a second criminal trial of the same prisoners
There must be prior proceeding determined against the Crown necessarily
involving an issue which again arises in a subsequent proceeding by the Crown
against the same prisoner. The allegation of the Crown in the subsequent
proceeding must itself be inconsis- tent with the acquittal of the prisoner in
the previous pro- ceeding. But if such a condition of affairs arises I see no
reason why the ordinary rules of issue-estoppel should not apply Issue-estoppel
is concerned with the judicial establishment of a proposition of law or fact
between parties. It depends upon well-known doctrines which control the
relitigation of issues which are settled by prior litigation." The emphasis
here again would be seen to be on the determination of ,criminal liability. In
Marz v. The Queen (96 C.L.R. 62) the High Court of Australia said "The
Crown is as much precluded by an estoppel by judgment in criminal proceedings
as is a subject in civil proceedings The laws which gives effect to
issueestoppel is not concerned with the correctness or incorrectness of the
finding which amounts to an estoppel, still less with the process of reasoning
by which the finding was reached . in fact It is enough that an issue or issues
have been distinctly raised or found. Once that is done, then, so long as the
finding stands, if there be any subsequent litigation between the same parties,
no allegations legally inconsistent with the finding, may be made by one of
them against the other." Here again it is to be remembered that the
principle applies to two criminal proceedings and the proceeding with which we
are now concerned is not a criminal proceeding. We therefore hold that there is
no substance in this contention.
The petition is dismissed.