State of Andhra Pradesh Vs. Abdul
Khader  INSC 135 (4 April 1961)
SINHA, BHUVNESHWAR P.(CJ) DAS, S.K.
GUPTA, K.C. DAS AYYANGAR, N. RAJAGOPALA
CITATION: 1961 AIR 1467 1962 SCR (1) 737
CITATOR INFO :
R 1971 SC1382 (10) R 1974 SC 28 (1) F 1974 SC
Externment Order-Indian citizen going to
Pakistan for a short Period and coming back with Pakistan passport and Indian
visa, if becomes a foreigner-Conviction for overstaying, if sustainable
'Foreigners Act, 1946 (13 of 1946), ss. 3(2)(c), 8, 9-Citizenship Act, 1955
(LVII of 1955), s. 9-Constitution of India, Art. 5(a).
The respondent was born in India in 1924 and
had lived there all along till about the end of 1954. He had been paying rent
for his shop in India for ten years upto about 1958 and his family was and had
always been in India. At the end of 1954 or the beginning of 1955 lie went to
Pakistan from where he returned on January 20, 1955, on a passport granted by
the Pakistan Government which had a visa endorsed on it by the Indian
authorities permitting him to stay in India up to April, 1955. The respondent
applied to the Central Government for extension of the time allowed by the visa
but the records did not Show What order, if any, had been made on it. As the
respondent had stayed beyond the time specified in the visa, he was on
September 3, 1957, served with an order made by the Government of Andhra
Pradesh under s. 3(2)(C) Of the Foreigners Act, i946 requiring him to leave
India. The order described him as a Pakisthan National. on his failure to
comply with this order 93 738 he was prosecuted under S. 14 of the Foreigners
Act. His defence was that he was an Indian national. The trying magistrate
rejected this defence and convicted him holding (a) that the fact that the
respondent obtained a Pakistan passport proved that he had disowned Indian
nationality and ceased to be an Indian national and (b) that by refusing to
extend the time fixed by the visa the Central Government had decided that the
respondent was a foreigner and under s. 8 of the Foreigners Act, such a
decision was final. An appeal by the respondent was dismissed by the Sessions
judge on the ground that the respondent's application for extension of the time
fixed by the visa proved that he had renounced his Indian nationality and had
acquired the citizenship of Pakistan. The High Court of Andhra Pradesh set
aside the conviction in revision. On appeal by the State of Andhra Pradesh,
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 s. 9(2) of the Citizenship
Act, 1955, that decision could only be made by the prescribed authority which
under the Rules framed under the Act was the Central Government. The fact that
the Central Government had refused to extend the visa did not show that it had
decided under the section that the respondent had renounced his Indian
nationality and acquired Pakistan citizenship. In any event, in order that the
Central Government might come to a decision under s. 9(2) of the Citizenship
Act an enquiry as laid down in r. 30 Of the Rules framed under the Act had to
be made and no such inquiry had been made.
On the facts established, the respondent
became an Indian citizen under Art. 5(a) of the Constitution when it came into
force. He thereby discharged the onus laid on him by s. 9 of the Foreigners Act
to prove that he was an Indian citizen when that was in dispute. The passport
obtained by the respondent from the Pakistan Government would, therefore, only
be evidence that the respondent had renounced Indian nationality and acquired
Pakistan citizenship. Such evidence was however of no use in a court for no
court could in view of s. 9(2) of the Citizenship Act decide whether an Indian
citizen had renounced his citizenship and acquired the citizenship of a foreign
Section 8 of the Foreigners Act had no
application to the case as it only applied where a foreigner is recognised as a
national by the law of more than one foreign country or where it is uncertain
what nationality is to be ascribed to a foreigner and in the present case that
was not the question but the question was whether the respondent was an Indian
or a foreigner.
The respondent's short visit to Pakistan had
not amounted to a migration to that country.
Query, whether Art. 7 of the Constitution
contemplates migration from India to Pakistan after January 26, 1950.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 192 of 1959.
Appeal by special leave from the judgment and
order dated October 27, 1958, of the Andhra Pradesh High Court at Hyderabad in
Criminal Revision Case No. 395 of 1958.
M. C. Setalvad, Attorney-General of India, T.
V. R. Tatachari and T. M. Sen, for the appellant.
R. Thiagarajan for N. S. Mani, for
1961. April 4. The Judgment of the Court was
delivered by SARKAR, J.-The respondent was convicted by the Judicial Magistrate
of Adoni in the State of Andhra Pradesh, under s.
14 of the Foreigners Act, 1946. His appeal
to the Sessions Judge of Kurnool was dismissed. He then moved the High Court of
Andhra Pradesh in revision and the revision petition was allowed. Hence the
present appeal by the State of Andhra Pradesh.
The facts found were these: On January 20,
1955, the respondent had come to Adoni on a passport granted by the Government
of Pakistan which bore the date January 10, 1955.
The passport had endorsed on it a visa
granted by the Indian authorities which permitted the respondent to stay in
India up to April 14, 1955. The respondent continued to stay on in India after
that date. On some date, not precisely ascertainable from the record, he
appears to have made a representation to the Government of India for extension
of his visa till September 2, 1957, on grounds of health. The records do not
however show what order, if any, was made on this representation. On September
3, 1957, an order dated August 9, 1957, made by the Government of Andhra,
Pradesh requiring him to leave India, was served on the respondent As the
respondent did not leave India as directed by this order, he was prosecuted
with the result earlier stated.
The passport showed that the respondent was
born at Adoni in 1924 The respondent appears to have 740 produced an extract
from the municipal birth register, which is not on the record, but presumably
showed that he was so born. The only evidence on the record of the date when he
left India, shows that must have been at the end of 1954 or early in 1955.
There is evidence to show that he had been paying rent for his shop at Adoni
for about ten years prior to 1958 and his parent s. brothers, wife, and
children were. and bad always been in India.
The respondent was charged with the breach of
the order to leave India which had been made under s. 3 (2)(c) of the Foreigners
Act. Now the order could not be made on him, neither could he be convicted for
breach of it, if lie was not a foreigner. That was the defence of the
respondent, namely that he was not a foreigner. The question is, was a foreigner?
The learned Judicial Magistrate found that by obtaining the passport from the
Pakistan authorities, "he has disowned Indian nationality and has ceased
to be an Indian National." He also held that s. 9 of the Foreigners Act
did not apply to the case but s. 8 of that Act did and that under that section
a decision made by the Government that a person is a foreigner is final and
such a decision had been made in this case regarding the respondent as the
Government had decided not to grant him an extension of his visa. On these
grounds he found that the respondent was a foreigner.
It seems to us that both these grounds are
Section 8 applies to a case where "a
foreigner is recognised as a national by the law of more than one foreign
country or where for any reason, it is uncertain what nationality if any is to
be ascribed to a foreigner." The section provides that in such cases the
prescribed authority has power to decide of which country the foreigner is to
be treated as the national and such decision shall be final. The section,
therefore, applies to a person who is a foreigner and the question is of which
foreign country he is a national. In the case of the respondent no such question
arose and no decision could be or was made by any prescribed authority of such
question. The learned Magistrate therefore clearly went wrong in relying on s.
741 As regards the passport, the learned
Magistrate did not come to the finding that it proved the respondent to have
been a Pakistani national all along. What he Al did was to think that the
respondent who had earlier been an Indian national, had by obtaining it,
disowned Indian nationality and ceased to be an -Indian national.
Now, s. 9(2) of the Citizenship Act, 1955,
provides that if any question arises as to whether an Indian citizen has
acquired the citizenship of another country, it shall be determined by such
authority and in such manner as may be prescribed. Under r. 30 of the rules
framed under that Act,, the authority to decide that question is the Central
Government. So the question whether the respondent, an Indian citizen, had
acquired Pakistani citizenship cannot be decided by courts. The learned
Magistrate had no jurisdiction therefore to come to the finding on the strength
of the passport that the respondent, an Indian citizen, had acquired Pakistani
citizenship. Nor was there anything before the learned Magistrate to show that
the Central Government had decided that the respondent had renounced Indian
citizenship and acquired that of Pakistan.
The learned Magistrate thought -that the fact
that the Central Government had refused to extend the respondent's visa proved
that it had decided that he had acquired Pakistani nationality. This view again
was not warranted.
There is nothing to show that the Central
Government had refused to extend the respondent's visa. Even if it had, that
would not amount to a decision by it, that the respondent, an Indian citizen,
had acquired subsequently Pakistani nationality for there may be such refusal
when an applicant for the extension had all along been a Pakistani national.
Furthermore, in order that there may be a
decision by the Central Government that an Indian citizen has acquired foreign
nationality, an enquiry as laid down in r. 30 of the rules framed under the Citizenship
Act has to be made and no such enquiry had at all been made. That being so, it
cannot be said that the Central Government had decided that the respondent, an
Indian citizen, had acquired the citizenship of Pakistan.
742 The question whether a person is an
Indian citizen or a foreigner, as distinct from the question whether a person
having once been an Indian citizen has renounced that citizenship and acquired
a foreign nationality, is not one which is within the exclusive jurisdiction of
the Central Government to decide. The courts can decide it and, therefore, the
learned Magistrate could have done so. He, however, did not decide that
question, that is, find that the respondent had been a Pakistani national all
along. On the evidence on the record such a finding would not have been warranted.
For all these reasons we think that the conviction of the respondent by the
learned Magistrate was not well founded.
Coming now to the decision of the learned
Sessions Judge, he seems to have based himself on the reasoning that the
"conduct of the appellant" that is, the respondent before us,
"in applying for extension of time shows that he is not a citizen of India
and that he has acquired citizenship of Pakistan. If he were a citizen of
India, he could have raised this plea and this question could have been decided
by the Central Government as envisaged by Rule 30, sub-Rule I of the Rules made
under the Citizenship Act and there was no necessity to apply for
extension." Quite plainly, the learned Sessions Judge was proceeding on
the basis that the respondent had renounced his Indian citizenship and acquired
Pakistani citizenship. As we have said earlier, that is not a question which is
open to a court to decide and there is no evidence to show that it has been
decided by the Central Government who alone has the power to decide it. The
learned Sessions Judge did not direct himself to the question which lie could
decide, namely whether the respondent had from the beginning been a Pakistani
His decision, therefore, cannot also be
We have examined the evidence on the record
ourselves and are unable to say that a conviction can be based on it.
There can be no conviction unless it can be
held on the evidence that the respondent is a foreigner, that is to say, a
person who is not an Indian 743 citizen: see s. 2(a) of the Foreigners Act as
amended by Act 11 of 1957.
The evidence shows that the respondent did go
to Pakistan, but the only evidence with regard to that is that he went there
about the end of 1954 or the beginning of 1955. This evidence also indicates
that he stayed there for a short time. He was all along paying the rent for his
shop in Adoni. His family bad always been there. Therefore it can be said that
he had never migrated to Pakistan. Clearly, a short visit to Pakistan would not
amount to migrating to that country. The passport obtained by him from Pakistan
would no doubt be evidence that he was a Pakistani national.
As on the facts of this case he must be held
to have been an Indian citizen on the promulgation of the Constitution, the
passport can show no more than that he renounced Indian citizenship and
acquired Pakistani nationality. Such evidence would be of no use in the present
case for, in view of s. 9(2) of the Citizenship Act, a Court cannot decide
whether an Indian citizen has acquired the citizenship of another country.
The position then is this. The respondent has
clearly discharged the onus that lay on him under s. 9 of the Foreigners Act to
prove that he was not a foreigner, by proving that he was born and domiciled in
India prior to January 26, 1950, when the Constitution came into force and
thereby had become an Indian citizen under Art. 5(a) of the Constitution. He
has further proved that he had never migrated to Pakistan. It has not been
shown that the Central Government had made any decision with regard to him
under s. 9 of the Citizenship Act that he has acquired a foreign nationality.
Therefore, it cannot be held by any court that the respondent who was an Indian
citizen has ceased to be such and become a foreigner. That being so, it must be
held for the purpose of this case that the respondent was not a foreigner and
no order could be made against him under s. 3(l)(c) of the Foreigners Act.
Conviction for breach of such an order by the
respondent would be wholly illegal.
744 Though we are upholding the decision of
the High Court, we wish to observe that we do not do so for the reasons
mentioned by it. It is unnecessary to discuss those reasons but we would like
to point, out one thing, namely. that the High Court seems to have been of the
opinion that Art. 7 of the Constitution contemplates migration from India to
Pakistan even after January 26, 1950. We desire to make it clear that we should
not be taken to have accepted or endorsed the correctness of this
interpretation of Art. 7. The reference in the opening words of Art. 7 to Arts.
5 and 6 taken in conjunction with the fact that both Arts. 5 and 6 are
concerned with citizenship (at the commencement of the Constitution) apart from
various other considerations would appear to point to the conclusion that the
migration referred to in Art. 7 is one before January 26, 1950, and that the
contrary construction which the learned Judge has put upon Art. 7 is not
justified, but in the view that we have taken of the facts of this case,
namely, that the respondent had never migrated to Pakistan, we do not consider
it necessary to go into this question more fully or finally pronounce upon it.
In the result we dismiss the appeal.