Fida Hussain Vs. State of Uttar
Pradesh  INSC 140 (5 April 1961)
SINHA, BHUVNESHWAR P.(CJ) DAS, S.K.
GUPTA, K.C. DAS AYYANGAR, N. RAJAGOPALA
CITATION: 1961 AIR 1522 1962 SCR (1) 776
CITATOR INFO :
D 1963 SC1035 (8) D 1972 SC2166 (4,5,8)
Foreigner-pakistan entering India in
1953-Whether a foreigner-Foreigners Act, 1946 (31 of 1946), s. 2 (a).
The appellant was born in India before the
partition. He left for Pakistan and returned to India in 1953 on a Pakistani
passport and Indian visa. He did not return to Pakistan before the expiry of
the period for which he was permitted to stay in India under the visa. He was
convicted for a breach of paragraph 7 Of the Foreigners Order, 1948, which required
every "foreigner" entering India to depart from India before the
expiry of the period during which he was authorised to remain in India.
Held, that the appellant was not a foreigner
on the date of his entry into India and his conviction was bad. On the relevant
date the appellant was a natural born British subject within s. 1(1)(a) of the
British Nationality and Status of Aliens Act, 1914, and consequently was not a
foreigner as defined in s. 2(a) of the Foreigners Act, 1946, as it then stood.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 129 of 1960.
Appeal by special leave from the judgment and
order dated March 9, 1960, of the Allahabad High Court in Criminal Revision No.
697 of 1959.
Naunit Lal, for the appellant.
G. C. Mathur and C. P. Lal, for the
1961. April 5. The Judgment of the Court was
delivered by SARKAR, J.-The appellant who had earlier left India, returned on a
passport granted by the Government of Pakistan on May 16, 1953. He had a visa
endorsed on his passport by the Indian authorities permitting him to stay in
India for three months and this permission was later extended upto November 15,
1953. He did not, however, return to Pakistan within that date upon which he
was convicted under s. 14 of 777 the Foreigners Act,, 1946, by a Sub-Divisional
Magistrate on March 14, 1959, and sentenced to rigorous imprisonment for one
year. His appeal to a Sessions Judge was dismissed and the High Court at
Allahabad, on being moved in revision, refused to interfere with the order of
the Sessions Judge.
This appeal is against the judgment of the
The appellant had been convicted for breach
of paragraph 7 of the Foreigners Order of 1948, issued under s. 3 of the Foreigners
Act. That paragraph requires that every foreigner entering India on the
authority of a visa issued in pursuance of the Indian Passport Act, 1920, shall
obtain from the appropriate authority a permit indicating the period during
which he is authorised to remain in India and shall, unless that period is
extended, depart from India before its expiry. As earlier stated, the visa on
the appellant's passport showed that he had permission to stay in India till
November 15, 1953 but he stayed on after that date. Hence the prosecution.
It is contended on behalf of the appellant
that he could not be convicted of a breach of paragraph 7 of the Foreigners
Order for that paragraph applies to a "foreigner" entering India on
the authority of a visa issued in pursuance of the Indian Passport Act and overstaying
the period for which he is permitted to stay in India. It is contended that the
foreigner contemplated in this paragraph is a person who was a foreigner on the
date of his entry into India. The appellant says that on that date he was not a
foreigner and, therefore, the provisions of the paragraph do not apply to him.
This contention of the appellant is plainly correct.
The paragraph contemplates a foreigner
entering India, and therefore, a person who at the date of the entry was a
Now, the word "foreigner" in
paragraph 7 has the same meaning as that word has in the Foreigners Act. The
word "foreigner" is defined in that Act in s. 2(a). That definition
has changed from time to time, but we are concerned with the definition as it
stood in 778 1953 when the appellant entered India, which was in these terms:
"foreigner" means a person
(1) is not a natural-born British subject as
defined in sub-sections (1) and (2) of Section I of the British Nationality and
Status of Aliens Act, 1914, or (2) has not been granted a certificate of
naturalisation as a British subject under any law for the time being in force
in British India, or (3) is not a citizen of India.
The appellants contention is that he was not
a foreigner because he came within el. (1) of the definition as he was a
natural-born British subject within s. l(l), (a) of the British Nationality and
Status of Aliens Act, 1914. Now that provision is in these terms:
S. 1. (1) The following persons shall be
deemed to be natural-born British subjects, namely,- (a) any person born within
His Majesty's Dominion and allegiance.
That the appellant was born at Allahabad at a
time when it was within his Britannic Majesty's Dominion is not in dispute.
That being so, we think that it must be held that the date of his entry into
India the appellant was a natural-born British subject and, therefore, not a
foreigner. He could not have committed a breach of paragraph 7 of the
In the result we allow the appeal and set
aside the conviction of the appellant and sentence passed on him.
Before leaving this case we think it right to
make a few more observations. The definition of a foreigner in the Foreigners
Act was amended with effect from January 19,'1957, by Act 11 of 1957. The
definition since that date is as follows: " "foreigner" means a
person who is not a citizen of India". Under s. 3(2), (e) of the Foreigners
Act, the Central Government has power to provide by order made by it that a
foreigner shall not remain in India. We wish to make it clear that we have said
nothing as to the effect of the amended definition of a "foreigner"
on the status of the 779 appellant. No question as to the effect of the amended
definition on the appellant's status fell for our decision in this case for we
were only concerned with his status in 1953. We would also point out that no
order appears to have been made concerning the appellant under s. 3(2)(c) and
we are not to be understood as deciding any question as to whether such an
order could or could not have been made against the appellant.