State of U. P. Vs. Rahmatullah  INSC
123 (23 April 1971)
SIKRI, S.M. (CJ) REDDY, P. JAGANMOHAN
CITATION: 1971 AIR 1382 1971 SCR 494 1971 SCC
Foreigners Act (31 of 1946), s.
14-Prosecution under-No determination by Central Government of accused's
nationality under Citizenship Act, 1955, before prosecution- Legality of
The respondent was a citizen of India at the
commencement of the Constitution in 1950. He entered India on April 1, 1955,
with a Pakistani passport dated March 15, 1955, and overstayed in India beyond
the permitted period. He was arrested in 1963 and was charged with an offence
under s. 14 of the Foreigners Act, and convicted. While the criminal
proceedings were pending, the Central Government, under s. 9(2) of the Citizenship
Act, 1955, read with r. 30 of Citizenship Rules, 1956, determined on November
5, 1964, that the respondent had acquired citizenship of Pakistan after January
26, 1950, and before March 15, 1955. The High Court set aside the conviction.
On appeal to this Court,
HELD: (1) The respondent was not a
'foreigner' within the meaning of the Foreigners Act before its amendment in
1957. [500 G-H] (2) Having been a citizen of India at the commencement of the
Constitution and not being a foreigner under the Foreigners Act at the date of
his entry, till the Central Government determined the question of the
respondent having acquired Pakistan nationality and thereby lost Indian
nationality, he could not be treated as a foreigner and no penal action could
be taken against him. [497 G; 501' A-B] (3) The order of the Central Government
dated November 5, 1964 determining that the respondent was a Pakistani was
final, but the determination by the Central Government could not have the
effect of retrospectively rendering his stay in India before that date a penal
offence. It was not as if he was given any directions after November 5, 1964,
which were disobeyed by him entailing his prosecution. [501 C-E]
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 167 of 1968.
Appeal from the judgment and order dated
January 18, 1968 of the Allahabad High Court in Criminal Revision No. 1482 of
O. P. Rana, for the appellant.
Bashir Ahmed and S. Shaukat Hussain, for the
The Judgment of the Court was delivered by
Dua J.-The State of U.P. has appealed to this Court on certificate of fitness
granted by the Allahabad High Court from 495 that court's order dated January
18, 1968, acquitting the respondent of an offence punishable under s. 14 of the
Foreigners Act (Act No. 31 of 1946). This appeal was originally heard by us on
January 11 & 14, 1971, when it was considered desirable to send for the
original records of the case from the courts below and also to call for the Me
relating to the inquiry held by the Central Government under s. 9(2) of the
Citizenship Act (Act No. 57 of 1955) into the question of the acquisition of
citizenship of Pakistan by the respondent.
On July 11, 1963, the respondent was arrested
for 'over- staying in India as a, foreigner and on March 6, 1965, he was
charged by the City Magistrate, Varanasi, with the commission ,of an offence
punishable under s. 14 of the Foreigners Act (Act No. 31 of 1946). The charge
"I, D. S. Sharma, City Magistrate,
Varanasi, hereby charge you Rahmatullah as follows :- That you being a
Pakistani Citizen entered into India on 1-4-55 on Pakistani Passport No. 283772
dated 15-3-55 and Indian visa No. 16326 Category C dated 22-3-55 and got your
extension to stay in India up to 25-5-56 after which date you are overstaying
in India illegally without any passport and visa :
and thereby committed an offence punishable
u/s 14 of Foreigners Act within my cognizance, and hereby I direct you to be
tried on the said charge by me." According to the prosecution case against
the respondent as put in the Trial Court, he was a Pakistani national and had on
April 1, 1955, entered India on a Pakistani passport dated March 15, 1955, and
an Indian Visa dated March 22, 1955, obtained by him as a Pakistani national,
but even after the expiry of the permitted period he was overstaying in India
without a valid passport or visa). The original visa, it is not disputed,
expired on June 21, 1955, but it was extended thrice, the last extension being
valid only up to May 25, 1956. Thereafter the respondent went underground and
has since been residing in India illegally. He was treated after several years
and was arrested on July 11, 1963. The respondent pleaded in defence that
though he had entered India on a Pakistani passport he was not a Pakistani
national. On the contrary he claimed to be an Indian citizen and therefore rightfully
living in India. According to him he had been born in India of Indian parents
in 1932 and was an Indian citizen under the Constitution.
496 During the pendency of the present
criminal proceedings an inquiry was made by the Central Government under s.
9(2) of the Citizenship Act read with r. 30 of the Citizenship Rules, 1956, and
by means of an order dated November 5, 1964, it was determined that the
respondent had acquired citizenship of Pakistan after January 26, 1950, and
before March 15, 1955. March 15, 1955 was apparently fixed because on that date
the respondent had secured his Pakistani passport. In that inquiry the
respondent was given full opportunity of adducing proof in support of his plea.
The respondent was informed of the determination of the Central Government on
March 29, 1965 in the Trial Court.
The City Magistrate, Varanasi, trying the
case came to the conclusion that the respondent had voluntarily gone to
Pakistan and had stayed there for 8 or 9 months. The fact that he had obtained
a Pakistani passport was in the opinion of that court an indication of his
intention to have gone to that country with the object of becoming a Pakistani
national. The argument that the determination in regard to the respondent's
citizenship was made by the Central Government after the commencement of the
present proceedings was considered by the Trial Court to be irrelevant because
the determination by the Central Government was immune from challenge and
whether it was made before or after the framing of the charge was immaterial.
The respondent was held to be a Pakistani national and as it was not denied
that he had entered India on a Pakistani passport and also that on the expiry
of the period for which he had been permitted to stay in India including the
extended period, he had stayed on in this country without obtaining valid
permit, he was convicted of an offence under s. 14 of the Foreigners Act. He
was sentenced to rigorous imprisonment for 18 months and to pay a fine of Rs.
200/- and in default of payment of fine to rigorous imprisonment for a further
period of three months.
The Sessions Judge dismissed the respondent's
appeal holding that the charge had been framed against him several months after
the determination by the Central Government that he was a Pakistani national.
According to that court the order of the Central Government was dated November
5, 1964, and it was communicated by the Sahayak Sachiv, U. P. to the Senior
Superintendent of Police, Varanasi, on December 28, 1964.
On revision the High Court disagreed with the
view of the courts below. According to the High Court the respondent was not a
foreigner when he entered India though he had obtained 497 a Pakistani
passport. Having not entered as a foreigner the respondent's case was held to
be outside para-7 of the Foreigners Order, 1948, made under S. 3 of the
Foreigners Act. The High Court held the respondent to be a foreigner when he
was prosecuted for an offence under S. 14 of the Foreigners Act. But in its
opinion that fact could not attract para-7 of the Foreigners Order, 1948 made
under S. 3 of the Foreigners Act. On this reasoning the respondent's conviction
was set aside and he was acquitted.
In this Court, to begin with, it was argued
on behalf of the State that S. 2(a) of the Foreigners Act defines a
"foreigner" to mean a person who is not a citizen of India.
If, therefore, the respondent is not a
citizen of India, then being a foreigner his prosecution and conviction under
S. 14 of the Foreigners Act was unassailable, contended Shri Rana. The order of
the High Court acquitting the respondent was, therefore, contrary to law, he
added. This submission is misconceived. The definition of the word
"foreigner" relied upon by the counsel was substituted for the
earlier one by the Foreigners Law (Amendment Act 11 of 1957) with effect from
January 19, 1957. Quite clearly the new definition is of no assistance in
determining the status of the respondent at the time of his entry into India in
The word "foreigner" according to
the definition as in force in 1955 meant, a person who (i) is not a
natural-born British subject as defined in sub-sections (1) and (2) of section
1 of the British-Nationality and Status of Aliens Act, 1914, or (ii) has not
been granted a certificate of naturalization as a British subject under any Jaw
for the time being in force in India, or (iii) is not a citizen of India. The Citizenship
Act, 1955, having been published in the Gazette of India on December 30, 1955,
was also not in force at the time when the respondent entered India. We may,
therefore, turn to the Constitution to see if the respondent was a citizen of
India at the time of the commencement of the Constitution. Clause (a) of
Article 5 clearly covers the case of the respondent who was born in the
territory of India, and had his domicile in this territory at the commencement
of the Constitution. Being a citizen of India at the commencement of the
Constitution in 1950, unless he lost his citizenship under some law between the
commencement of the Constitution and his entry into India in 1955, the
respondent would continue to be an Indian citizen till such entry. Even on behalf
of the appellant no serious attempt was made to show that the respondent had
lost his Indian citizenship in any other manner except on the basis of his
having obtained a Pakistani passport and on the basis of the determination of
the question of his citizenship by the Central Government on November 5, 1964.
Indeed after some faint argument the
appellant's learned counsel based his case exclusively on the determination
32-1 S. C. India/71 498 by the Central Government, and in our opinion on the
existing record rightly so. According to his submission the determination made
by the Central Government under S. 9(2) of the Citizenship Act is final and
since the respondent has been held to have acquired citizenship of Pakistan
before March 15, 1955, his entry into India after that date and his subsequent
continued stay in this country after the expiry of the extended period on May
22, 1955, would amount to an offence punishable under S. 14 of the Foreigners
As will presently be shown the real question
which arises for our decision lies in a short compass and the relevant facts
essential for the decision are no longer in dispute.
When the respondent entered India on April 1,
1955, he was in possession of a Pakistani passport and a visa to which no
objection was taken by the Indian authorities. He did not enter India
clandestinely, and he is not being tried for having entered India in violation
of any law. Indeed his visa was, admittedly extended by the appropriate
authority up to May 22, 1965. As he was clearly a citizen of India at the
commencement of the Constitution and the question arose whether he had lost
Indian citizenship thereafter, the Central Government had to determine under S.
9 of the Citizenship Act the question of the acquisition of Pakistan
nationality by the respondent. This Court in Government of Andhra Pradesh v.
Syed Mohd. Khano after referring to its earlier decision in lzhar Ahmad Khan v.
Union of India(1) made the following observation :
"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 tried 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 as 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 appropriate authority authorised under the Act to enquire 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 (2)  Supp. 3
S. C. R. 235.
(1)  Supp. 3 S. C. R. 288.
499 and have lost in consequence the
citizenship of this country, it is essential that question should be first
considered by the Central Government. In dealing with the question, the 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 on which any further action can be taken against
him." In that case an argument was raised on the authority of lzhar Ahmad
Khan's case(1) that as soon as a person acquired a passport from a foreign
Government his citizenship of India automatically came to an end, but it was
in Shuja-Ud-Din v. The Union of India and
Another(2) this respondent there was born in India in 1924 and had lived in
this 'Country all along tiff 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 endorsed
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 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 time
specified in the visa, on September 3, 1957 he was served with an order under
s. 3(2)(c) of the Foreigners Act, requiring him to leave India. On his failure
to comply with this order he was prosecuted under s. 14 of the Foreigners Act.
His defence was that he was an Indian national. The Magistrate trying him
rejected 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 a foreigner under s. 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 s. 9(2) of the Citizenship Act that decision could only be made by the
prescribed authority. The respondent in that case, according to this Court, had
become an Indian citizen under Art. 5(a) of. the Constitution when it (1)
 Supp. 3 S. C. R. 233 (2)  1 S., C. R. 737.
500 came into force and there being no
detention by the Central Government that he had lost his nationality
thereafter. the order of the High Court acquitting him was upheld.
in Shuja-Ud-Din v. The Union of India and
Another (1) this Court speaking through Gajendragadkar, J. as he then was,
"it is now well settled that the
question as to whether a person who was a citizen of this country on January
26, 1950, has lost his citizenship thereafter, has to be determined under the
provisions of section 9 of the Citizenship Act, 1955 (No. LVII of 1955).
There is also no doubt that this question has
to be decided by the Central Government as provided by Rule 30 of the Rules
framed under the Citizenship Act in 1956. The validity of section 9 as well as
of Rule 30 has been up- held by this Court in the case of Izhar Ahmad Khan and
Ors. v. Union of India and Ors. It has also been held by this Court in The
State of Madhya Pradesh v. Peer Mohd. and Anr. (Crl.
Appeal No. 12 of 1961 decided on Sept. 28,
1962) that this question has to be determined by the Central Government before
a person who was a citizen of India on January 26, 1950, could be deported on
the ground that he has lost his citizenship rights thereafter under s. 9 of the
Citizenship Act. Unless the Central Government decides this question, such a
person cannot be treated as a foreigner and cannot be deported from the
territories of India." In Abdul Sattar Haji Ibrahim Patel v. The State of
Gujarat(2), Gajendragadkar, C. J., speaking for a bench of five Judges approved
the decisions in the cases of Izhar Ahmed Khan(3) and Syed Mohd. Khan(4), it
being emphasized that the decision of the Government of India is a condition
precedent to the prosecution by the State of any person on the basis that he
has lost his citizenship of India and has acquired that of a foreign country.
That an inquiry under s. 9 of the Citizenship Act can only be held by the
Central Government was again reaffirmed by this Court in Mohd. Ayub Khan v.
Commissioner of Police, Madras (5).
In view of these decisions it seems to us to
be obvious that till the Central Government determined the question of the
respondent having acquired Pakistan nationality and had thereby (1) C. A. No.
294 of 1962 decided on Oct. 30, 1962.
(2) Cr. A. No. 153 of 1961 decided on Feb.
(3)  Supp. 3 S. C. R.235.
(4)  SUPP. 3 S. C. R. 288.
(5)  2 S. C. R. 884.
501 lost Indian nationality, he could not be
treated as a foreigner and no penal action could be taken against him on the
basis of his status as a foreigner, being national of Pakistan. It is not the appellant's case-before us that any directions under the law
governing foreigners were given to the respondent after November 5, 1964, which were disobeyed entailing his prosecution, and indeed it is admitted that he
was not even informed of the decision of the Central Government till March 29, 1965. It is also noteworthy that at the time when the Central Government
determined his nationality he was being tried in this country by the criminal
court after having been arrested and bailed out, and he was not free to leave
this country for proceeding to Pakistan. In the background of these facts it
appears to us that the wide charge as framed against him was misconceived and
he could not be convicted of overstaying in this country at least till he was
duly found to be a Pakistani national and to have ceased to be an Indian
citizen. The order of the Central Government is clearly final, and it has
remained unchallenged by the respondent even after he was informed of this
order on March 29, 1965. We have seen the proceedings of the Central Government
and we find that the respondent had been given full opportunity of putting
forth his case.
The binding nature of that order was not, and
indeed it could not be, questioned before us. The determination by the Central
Government in this case could not have the effect of retrospectively rendering
a penal offence an act which was not so at the time of its commission. The
respondent even though held to be a Pakistani, and therefore a foreigner,
before the charge was framed against him is entitled to the protection of our
As a result of the foregoing discussion, the
High Court was in our opinion right in setting aside the respondent's conviction
on the charge framed. It will of course be open to the Central Government to
take such suitable action against the respondent under the Foreigners Act or
under any other provision of the law which may be applicable to him, for the
purpose of either deporting him or otherwise dealing with him as is thought
fit. This appeal, however, must fail.
Y.P.S. Appeal dismissed.