State of Madhya Pradesh Vs. Peer Mohd.
& ANR  INSC 277 (28 September 1962)
SINHA, BHUVNESHWAR P.(CJ) WANCHOO, K.N.
GUPTA, K.C. DAS SHAH, J.C.
CITATION: 1963 AIR 645 1962 SCR Supl. (1) 429
CITATOR INFO :
F 1965 SC 810 (6) R 1966 SC1614 (13) R 1971
SC1382 (11) R 1972 SC2166 (6) R 1974 SC 28 (1) R 1986 SC1534 (8)
Citizenship-Foreigner-Indian going to
Pakistan after Constitution-Return on Pakistani passport-If ceases to be
citizen of India-Constitution of India, Art. 7-Citizenship Act, 1955 (57 of
The respondents who were citizens of India
left India for Pakistan sometime after January 26, 1950. They returned to India
in 1956 on the strength of a Pakistani passport and visa. They continued to
stay in India even after the period of the visa had expired and were prosecuted
under s. 14 Foreigners Act' 1946, read with cl. 7 Foreigner's Order, 1948, for
unauthorised and illegal overstay in India. The High Court acquitted them
holding that they had not become foreigners on. Account of their leaving India
after January 26, 1950, and the question whether they had lost their Indian
citizenship on account of acquisition of Pakistani citizenship could not be
agitated before a court of law.
The appellant contended that in view of Art.
7 of the Constitution the respondents could 430 not be deemed to be citizens of
India as they had migrated to Pakistan after March 1, 1947, within the meaning
Held, that Art. 7 was applicable only to
persons who had migrated to Pakistan between March 1, 1947, and January 26,
1950, and under this Article the respondents had not ceased to be citizens of
India. The words "has migrated" in Art. 7 could not include cases of
persons who would migrate after the commencement of the Constitution, they
refer only to persons who had migrated at the date when the Constitution came
into force. The absence of the words "at the commencement of the
Constitution" in Art. 7 has no significance. Cases of acquisition of
foreign citizenship after January 26, 1950, were covered by the provisions of
the Citizenship Act, 1955, and of the rules made there under.
The Central Government or its delegate was
the appropriate authority to deal with such questions and they could not be
tried in courts.
Izhar Ahmad Khan v. Union of India, referred
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 12 of 1961.
Appeal from the judgment and order dated
April 26 1960, of the Madhya Pradesh High Court Jabalpur in Criminal Appeal No.
388 of 1958.
B. Sen and I. N. Shroff, for the appellant.
The respondent did not appear.
1962. September 28. The Judgment of the Court
was delivered by GAJENDRAGADKAR, J.-A charge-sheet was presented by the
appellant the State of Madhya Pradesh against the respondents Peer Mohammad and
his wife Mst. Khatoon under s. 14 of the Foreigners Act, 1946 (hereinafter called
the Act) read with cl. 7 of the Foreigners Order, 1948 (hereinafter called the
Order) in the Court of the Magistrate 1st Class, Burhanpur. The case against
the respondents was that they had entered India on May 13, 1956, on the
strength of a Pakistani passport and a visa issued in their favour on.May 8,
1956, and reached Burhanpur on May 15, 1956. Even after the period of the 431
visa had expired, they continued to stay in India.
Consequently, the district Magistrate,
Burhanpur, served a notice on them on May 14, 1957 calling upon them to leave
India on or before May 28, 1957. The respondents did not comply with the notice
and by their unauthorised and illegal over-stay in India, they rendered
themselves liable under s. 14 of the Act and cl. 7 of the Order.
The respondents pleaded that they were not
foreigners but were citizens of India. They were born in India at Burhanpur and
had been permanent residents of the said place; and so the present criminal
proceedings instituted against them were misconceived.
The prosecution, however, urged that the
respondents had left India for Pakistan some time after January 26, 1950, and
under Art. 7 of the Constitution they cannot be deemed to be citizens of India.
In the alternative, it was urged that since the respondents had obtained a
Pakistani passport, they have acquired the citizenship of a foreign country and
that has terminated their citizenship of India under s. 9 of the Citizenship
Act, 1955 (LVII of 1955). It appears that before the learned Magistrate, only
this latter plea was pressed and the learned Magistrate held that the question
as to whether the respondents had lost their citizenship of India under s. 9
(2) of the Citizenship Act has to be decided by the Central Government and
cannot be agitated in a court of law. Therefore, the learned Magistrate passed
an order under s. 249 of the Code of Criminal Procedure, directing that the
respondents should be released, and the passport seized from them should be
returned to them after the period of appeal, if any.
Against this order, the appellant preferred
an appeal in the High Court of Madhya Pradesh, and before the High Court it was
urged by the appellant that on a fair and reasonable construction of Art. 7 432
it should be held that the respondents cannot be deemed to be citizens of India
*and so, they were liable under s. 14 of the Act and cl. 7 of the Order. This
appeal was heard by Shrivastava and Naik, JJ. Shrivastava, J., took the view
that Art. 7 did not apply to the case of the respondents who had left India for
Pakistan after January 26, 1950, and so, they could not be held to be
foreigners on the ground that they had left India as alleged by the
prosecution. Naik,J., however, came to a contrary conclusion. He took the view
that since it was proved that the respondents had left India for Pakistan after
January 26, 1950, Art. 7 was attracted and so, they must be deemed to be
foreigners. Since there was a difference of opinion between the two learned
judges who heard the appeal, it was referred to Newaskar. J.
Newaskar, J., agreed with the conclusion of
Shrivastava, J., and so, in the light of the majority opinion, it was held that
under Art. 7, the respondents could not be held to be foreigners.
In regard to the alternative case of the
prosecution that the respondents had obtained a Pakistani passport and so, had
lost their citizenship under s. 9(2) of the Citizenship Act, the High Court
held that it was a matter which had to be determined by the Central Government
and it is only after the Central Government decides the matter against the
respondents that the appellant can proceed to expel them from India. It,
however, appears that the High Court read the order passed by the trial
Magistrate as amounting to an order of acquittal, and so, quashed the said
order with liberty to the appellant to institute fresh proceedings against the
respondents if and when considered necessary by it. In fact, as we have already
mentioned, the order passed by the trial Court was one under s. 249 Cr. P.C. It
against this decision of the High Court that
the appellant has come to this Court with a certificate granted by the High
Court. At this stage, we may add that there were eleven 433 other cases of a
similar nature which were tried by the Magistrate along with the present case
and considered by the High Court at the appellate stage. Appeals against the
companion matters are pending before this Court, but their fate will be decided
by our decision in the present appeal.
Section 14 of the Act provides, inter alia,
that if any person contravenes the provisions of this Act or of any order made
thereunder, he shall be punished in the manner prescribed by the section.
Clause 7 of the Order issued under the said Act prescribes that every foreigner
who enters India on the authority of a visa issued in pursuance of the Indian
Passport Act, 1920 shall obtain from the Registration Officer, specified
therein, a permit indicating the period during which he is authorised to remain
in India and shall, unless the period indicated in the permit is extended by
the Central Government, depart from India before the expiry of the said period.
The prosecution case is that the respondents having entered India with a visa
have overstayed in India after the expiration of the visa and the period
indicated in the permit and so, they are liable to be punished under s. 14 of
the Act and cl. 7 of the Order.
It would be noticed that in order that the
respondents should be liable under the said provisions, it must be shown that
when they entered India, they were foreigners. In other words, cl. 7 of the
order applies to every foreigner who enters India in the manner therein
indicated ; and that raises the question as to whether the respondents were
foreigners when they entered India. The prosecution contends that the
respondents were foreigners at the relevant date on two grounds. It is urged
that they left India for Pakistan after January 26, 1950, and so, under Art. 7
they cannot be deemed to be citizens of India at the relevant time. The
alternative ground is that they have acquired a passport from the Pakistan 434
Government and as such they lost the citizenship of this country under s. 9(2)
of the citizenship Act. It is common ground that the latter question has to be
decided by the Central Government, and so, this J. Court is not concerned with
it. The only question which falls for our decision, therefore, is: can the
respondents be said to be foreigners at the relevant date under Art. 7, because
they left India for Pakistan after January 26, 1950 ? The answer to this
question would depend on the construction of Art. 7.
In construing Art. 7, it would be necessary
to examine briefly the scheme of the seven Articles that occur in Part 11.
These Articles deal with the question of citizenship.
Article 5 provides that at the commencement
of the constitution, every person who has his domicile in the territory of
India and who satisfies one or the other of the three tests prescribed by cls.
(a), (b) and (c), shall be a citizen of India. Article 6 deals with persons who
have migrated to the territory of India from Pakistan and it provides that they
shall be deemed to be citizens of India at the commencement of the Constitution
if they satisfy the requirements of clauses (a) & (b). In other words, Art.
6 extends the right of citizenship to persons who would not satisfy the test of
Art. 5, and so, persons who would be entitled to be treated as citizens of
India at the commencement of the Constitution are covered by Arts. 5 and
6. Article 7 with which we are concerned
provides that notwithstanding anything in Arts. 5 and 6, a person who has after
March 1, 1947, migrated from the territory of India to the territory now
included in Pakistan shall not be deemed to be a citizen of India. The proviso
deals with persons who having migrated to Pakistan have returned to the
territory of India under a permit for resettlement or permanent return, but
with that class of persons we are not concerned in the present appeal. Article
8 deals with the 435 rights of citizenship of persons of Indian origin who
reside outside India. Article 9 provides that no person shall be a citizen of
India by virtue of Arts. 5, 6 or 8, if he has voluntarily acquired the
citizenship of any foreign State.
Articles 10 and 11 then lay down that the
rights of citizenship prescribed by Arts. 5 and 6 shall be subject to the
provisions of any law that may be made by Parliament;
that is to say, they said rights will
continue unless they are otherwise affected by any law made by Parliament in
that behalf. Article 11 makes it clear that the provisions of Part 11 Will Dot
derogate from the power of Parliament to make any provision with respect to the
acquisition and termination of' citizenship and all other matters relating to
citizenship. That, in brief, is the scheme of Part 11.
It is urged by Mr. Sen on behalf of the
appellant that where the Constitution wanted to limit the scope of the Article
by reference to the date of the commencement of the Constitution, it has used
appropriate words in that behalf, and in that connection, he relies on the use
of the words "at the commencement of the Constitution" which occur in
Arts. 5 and 6. Article 7 does not include such a clause, and so, the migration
from the territory of India to the territory included in Pakistan to which it
refers should not be construed to be limited to the migration prior to the
commencement of the Constitution. Just as a person who has migrated to Pakistan
from India prior to January 26, 1950 shall not be deemed to be a citizen of
India by virtue of such migration, so should a person who has migrated from
India to Pakistan even after the commencement of the Constitution be denied the
right of citizenship. That is the appellant's case and it Is based
substantially on the ground that the clause "at the commencement of the
Constitution" is not used by 436 This argument, however, cannot be
accepted because it is plainly inconsistent with the material words used in the
Article. It will be noticed that a person who shall not be deemed to be a
citizen of India is one "who has, after the first day of March, 1947,
migrated from the territory of India to the territory of Pakistan." It is
true that migration after January 26, 1950, would be migration after March 1,
1947, but it is clear that a person who has migrated after January 26, 1950,
cannot fall within the relevant clause because the requirement of the clause is
that he must have migrated at the date when the Constitution came into force.
"Has migrated" in the context cannot possibly include cases of
persons who would migrate after the commencement of the Constitution. It is
thus clear that it is only persons who had migrated prior to the commencement
of the Constitution that fall within the scope of Art. 7. The use of the
present perfect tense is decisive against the appellant's contention and so, the
absence of the words on which Mr. Sen relies has no significance.
Besides, as the article is worded, the use of
the said words would have been inappropriate and having regard to the use of
the present perfect tense, such words were wholly unnecessary. The proviso to
Art. 7 which deals with cases of persons who having migrated to Pakistan have
returned to India under a permit for resettlement, also supports the same
conclusion. The migration there referred to appears to be migration prior to
the commencement of the Constitution.
It is relevant to refer to Art. 9 in this
connection. This Article deals with cases of persons who have voluntarily
acquired the citizenship of any foreign State and it provides that such persons
shall not be deemed to be citizens of India by virtue of Arts. 5, 6 or 8. Now,
it is clear that the acquisition of the citizenship of any foreign State to
which this Article refers is acquisition made prior to the commencement, 437 of
the Constitution. "Has voluntarily acquired" can have no other
meaning, and so, there is no doubt that the application of Art. 9 is confined
to the case of acquisition of citizenship of foreign State prior to the
commencement of the Constitution. In other words, the scope and effect of Art.
9 is, in a sense, comparable to the scope and effect of Art. 7. Migration to
Pakistan which is the basis of Art. 7 like the acquisition of citizenship of
any foreign State which is the basis of Art. 9, must have taken place before
the commencement of the Constitution. It will be noticed that migration from
Pakistan to India as well as migration from India to Pakistan which are the
subject-matters of Arts. 6 and 7 deal with migrations prior to the commencement
of the Constitution. The Constitution makers thought it necessary to make these
special provisions, because migrations both ways took place on a very wide
scale prior to January 26, 1950, on account of the partition of the country.
Migrations to Pakistan which took place after January 26, 1950, are not
specially provided for. They fall to be considered and decided under the
provisions of the Citizenship Act; and as we will presently point out, citizens
migrating to Pakistan after the said date would lose their Indian citizenship
if their cases fall under the relevant provisions of the said Act.
It is true that as Art. 7 begins with a
non-obstante clause by reference to Arts. 5 & 6, and there is a little
overlapping. The non-obstante clause may not serve any purpose in regard to
cases falling under Art. 5 (c), but such overlapping does not mean that there
is any inconsistency between the two Articles and it can, therefore, have no
effect on the construction of Art. 7 itself. Therefore, we are satisfied that
Art. 7 refers to migration which has taken place between March 1, 1947, and
January 26, 1950. That being so, it cannot be held that the respondents fall
within Art. 7 by virtue of the fact that they migrated from India to Pakistan
some time after 438 January 26, 1950, and should, therefore, be deemed not to
be citizens of India.
In this connection, it is necessary to add
that cases of Indian citizens acquiring the citizenship of any foreign State
are dealt with by Art. 9, and the relevant provisions of the Citizenship Act,
1955. If the foreign citizenship has been acquired before January 26, 1950,
Art. 9 applies;
if foreign citizenship has been acquired
subsequent to January 26, 1950, and before the Citizenship Act, 1955 came into
force, and thereafter, that is covered by the provisions of the Citizenship Act,
vide Izhar Ahmed Khan v. Union of India(1). It is well-known that the Citizenship
Act has been passed by the Parliament by virtue of the powers conferred and
recognised by Arts. 10 and 11 of the Constitution and its relevant provisions
deal with the acquisition of citizenship of India as well as termination of the
said citizenship. Citizenship of India can be terminated either by renunciation
under s. 8, or by naturalisation, registration or voluntary acquisition of
foreign citizenship in any other manner, under s. 9, or by deprivation under s.
IO. The question about the citizenship of persons migrating to Pakistan from
India after January 26, 1950, will have to be determined under these provisions
of the Citizenship Act. If a dispute arises as to whether an Indian citizen has
acquired the citizenship of another country it has to be determined by such
authority and in such a manner and having regard to such rules of evidence as
may be prescribed in that behalf That is the effect of s. 9(2). It may be added
that the rules prescribed in that behalf have made the Central Government or
its delegate the appropriate authority to deal with this question, and that
means this particular question cannot be tried in courts.
The result is that the respondents cannot be
said to be foreigners by virtue of their migration to Pakistan after January
26, 1950, and that is the only question (1)  Supp. 2 S.C.R. 235. 439
which can be tried in courts. If the State contends that the respondents have
lost their citizenship of India under s. 9 (2) of the Citizenship Act, it is
open to the appellant to move the Central Government to consider and determine
the matter, and if the decision of the Central Government goes against the
respondents, it may be competent to the appellant to take appropriate action
against the respondents. So far as the appellant's case against the respondents
under Art. 7 is concerned, the High Court was right in holding that the
respondents were not foreigners within the meaning of cl. 7 of the Order and
cannot, therefore, be prosecuted under s. 14 of the Act. The appeal accordingly
fails and is dismissed.