STATE OF RAJASTHAN Vs. ALLAH BUX
LAWS(RAJ)-1967-9-6
HIGH COURT OF RAJASTHAN
Decided on September 14,1967

STATE OF RAJASTHAN Appellant
VERSUS
ALLAH BUX Respondents

JUDGEMENT

HANDARI (Actg.) C. J. - (1.) THIS appeal on behalf of the State of Rajasthan arises under the following circumstances.
(2.) RESPONDENT Allah Bux was challaned before the City Magistrate, Jodhpur, with the allegations that he was a Pakistani national and he came to Jodhpur on 23rd June, 1956, having obtained Visa category 'c' No. 16081 dated 21st July, 1956, on passport No. 130355 dated 21st July, 1953, and that period of his stay in India was extended from time to time but he stayed in India without any further extension. It was further alleged that notice Ex. P-1 dated 24th December, 1957, was given to the respondent to leave India on or before 1st January, 1958, by the Police Zone officer, Jodhpur; but in spite of such orders he did not leave India. The respondent was arrested on 17th October, 1950, and was thereafter challaned under sec. 14 of the Foreigners Act, 1946 ( Act No. XXXI of 1946, hereinafter called the Act ). The petitioner pleaded not guilty to the charge framed against him under sec. 14 of the Act. In his statement under sec. 342 Cr. P. C. he stated that he was born at Jodhpur and his father had also been born and died in Jodhpur. He was also married at Jodhpur in 1951. He further stated that on hearing the news about the illness of his sister who had been residing in Pakistan, he went to Pakistan without any passport. On her recovery he wanted to come to Jodhpur but he was not allowed to do so without obtaining a passport. Thereafter he obtained a passport No. 130355 dated 21st July, 1953, and visa No. 16981 dated 21st July, 1956. He got extended the time for his stay in India for three months. Thereafter he did not get the period extended but remained at Jodhpur working in a motor workshop. He produced Mehmood D. W. 1 to show that he was born in the year 1930 in Jodhpur and that his father Kasambux resided at Jodhpur. The learned Magistrate, Jodhpur, held that the respondent was a Pak national as he had obtained Pakistani passport and also the visa to enter India and that the mere fact that prior to the obtaining of Pakistani passport, the respondent was an Indian citizen was not sufficient to rebut the presumption that he was Pakistani national arising from the fact that he had obtained Pakistani passport as laid down in R. 30 of the Indian Citizenship Rules, 1956, framed under the Indian Citizenship Act, 1955. I The respondent was convicted under sec. 14 of the Act read with cl. 7 of the Foreigners Order, 1948, and was sentenced to rigorous imprisonment for two months and a fine of Rs. 50/- and in default of payment of fine to undergo rigorous imprisonment for a further period of 15 days. On appeal by the respondent to the learned Additional Sessions Judge, he was acquitted. The learned Additional Sessions Judge took the view that when the accused entered in India on the 22nd June, 1956, he was not a foreigner under the provisions of the Act in force on that date, and, therefore, it was not necessary for him to obtain any permit under cl. 7 of the Foreigners Order, 1948 The learned Additional Sessions Judge then considered whether the respondent was a foreigner on the date of the notice Ex. P. 1 conclusion that it was the Central Government which was competent to determine whether the respondent had voluntarily acquired the citizenship of another country. Since the Central Government has not determined this question the respondent could not be convicted. Taking this view of the matter, he acquitted the accused. Hence this appeal. The learned Deputy Government Advocate has argued that under sec. 9 of the Act, the onus of proving that the respondent was not a foreigner was on him and that he has failed to discharge it. He has further pointed out that the application for the visa dated 11th August, 1954 Ex. P. 2 showed that the petitioner was a Pakistani national and that he had migrated to Pakistan some time in the year 1949 and that this application was signed by Allah Bux respondent, and that the respondent having thus migrated to Pakistan in the year 1949 before the Constitution came into force on the 26th January, 1950, the provisions of sec. 9 (2) of the Citizenship Act were not applicable to his case and the lower appellate court was wrong in relying on these provisions. Learned counsel for the respondent has urged that the petitioner was initially a citizen of India and the State had failed to show that he had acquired the citizenship of Pakistan and, therefore, it could not be held that he was a foreigner. He has further urged that it was never pointed out in the trial court that it was for the respondent to prove that he was not a foreigner because of the provisions of sec. 9 of the Act relating to burden of proof and therefore he did not lead further defence evidence to show that he was not a foreigner. To our mind, there is a good deal of confusion in the judgments of both the lower courts in appreciating the correct legal position and for this reason we consider it proper first to refer to the relevant law on the subject. Art. 5 of the Constitution provides that every person who has his domicile in the territory of India and (a) who was born in the territory of India ; or (b) either of whose parents was born in the territory of India ; or (c) who has been ordinarily resident in the territory of India for not less than five years immediately preceding such commencement, shall be a citizen of India. Art. 7 provide that: "notwithstanding anything in articles 5 and 6, a person who has after the first day of March, 1947, migrated from the territory of India to the territory now included in Pakistan shall not be deemed to be a citizen of India. " Art. 9 provides that - "no person shall be a citizen of India by virtue of article 5. . . . . . . . . . . . if he has voluntarily acquired the citizenship of any foreign State. " There is a provision in sub-sec. (1) of sec. 9 of the Citizenship Act corresponding to Art. 9 of the Constitution and provides that any citizen of India who by naturalisation, registration or otherwise voluntarily acquires or has at any time between the 26th January, 1950, and the commencement of this Act voluntarily acquired the citizenship of another country shall, upon such acquisition, cease to be a citizen of India. Sub-sec. 2 of sec. 9 further contains provision relating to the determination of the question as to whether, when and how any person has acquired the citizenship of another country and it has been provided that any such question will be determined by such authority in such manner and having regard to such rules of evidence as may be prescribed by the Citizenship Act in this behalf. The Central Government framed the Citizenship Rules, 1956, in exercise of powers conferred by sec. 18 of the Citizenship Act, 1955, and R. 30 provided that the authority to determine the question of acquisition of citizenship of another country will be the Central Government which shall determine any such question having due regard to the rules of evidence specified in Third Schedule of the Rules. The important point to be noticed therefore is that the Central Government has been made the exclusive authority to determine the question of acquisition of citizenship by a citizen of India of another country under sub-sec. 2 of sec. 9 read with rule 30 of the Citizenship Rules not in all cases but only in the case of a person referred to in sub-sec. 1 of sec. 9 of the Citizenship Act. This means that sec. 9 (2) can be applied only to the citizens of India who by naturalisation, registration or otherwise voluntarily acquire or have acquired at any time between 26th January, 1950, and the commencement of the Citizenship Act the citizenship of another country and the Central Government is not the exclusive authority to determine the question of citizenship of another country by a citizen of India alter such acquisition had taken place before 26th January, 1950. This point was missed by the lower appellate court and it has acquitted the respondent without giving a finding whether the respondent had gone to Pakistan after 26th January, 1950. The learned Deputy Government Advocate has contended that in view of sec. 9 of the Act it was for the respondent to show that he was an Indian citizen within the meaning of Article 5 of the Constitution, that is, he was domiciled in the territory of India on the 26th January, 1950, and that he satisfied one of the three conditions prescribed by clauses (a), (b) and (c) of the said Article. Reliance is placed in this connection on Abdul Sattar vs. State of Gujarat (1) and Fateh Mohammed vs. The Delhi Adminisration (2 ). This contention is correct. Learned counsel for the respondent has however argued that his client laboured under the mis-apprehension that it was for the prosecution to prove its case and it never occurred to him that he had to meet a case in which the burden to prove was on the accused. He has prayed that he may be permitted to lead further evidence in defence to show that the respondent had gone to Pakistan in the year 1951 and not before that. As the judgments of the courts below show that the correct legal position was not properly understood either by the parties or even by the courts below, we are inclined to consider this request of counsel for the accused favourably. The learned Deputy Government Advocate has urged that if an opportunity is given to the respondent to lead further evidence in defence, the case may be sent for a retrial so that the prosecution may bring on record evidence to show that the accused had migrated to Pakistan before 26th January, 1950. It is pointed out that the prosecution had definite evidence in the form of admissions of the accused that he had migrated to Pakistan before 26th January, 1950. It is said that in the application for obtaining visas, the respondent had mentioned that he had migrated to Pakistan before 1950. In order to afford full opportunity to both the parties, we think that a re-trial of the respondent should be ordered. There is yet another reason for ordering a re-trial and it is that the charge framed in the case is not very specific. The trial court has convicted the respondent for an offence under sec. 14 of the Act read with clause7 of the Foreigners Order 1948. The lower appellate court has pointed out that the respondent was not a foreigner when he entered into India. For this reliance was placed on the division bench authority of this Court in The State vs. Abdul Majid (3) wherein sec. 5 of the Foreigners Order was considered. The definition of "foreigner" as given in the judgment was as follows : "foreigner" means a person who - (i) is not a natural born British subject as defined in sub-sec. 1 and (2) of sec. 1 of the British Nationality and Status of Aliens Act, 1914 ( 4 and 5 Goe. 5, C 17 ), or (ii) has not been granted a certificate of naturalisation as a British subject under any law for the time being in force in India, or, (iii) is not a ruler or subject of an acce- ding State or (iv) is not a native of the Assam tribal areas: Provided that any British subject who, under any law for the time being in force in India ceases to be a British subject shall thereupon be deemed to be foreigner. " This definition was modified to some extent by the Adaptation of Laws Order, 1950, which was not noticed by the Division Bench and after such modification the definition of 'foreigner' stood as follows: "foreigner" means a person who - (i) is not a natural born British subject as defined in sub-sections (1) and (2) of sec. 1 of the British Nationality and Status of Aliens Act, 1914, or (ii) has not been granted a certificate of naturalisation as a British subject under any law for the time being inforce in India or (iii) is not a citizen of India. " But this would not make any difference in the decision of the case as in Abdul Majid's case ( supra ) the Division Bench was considering whether the accused who arrived in India on 14th March, 1936, could be said to have contravened the Foreigners Order, 1948. The answer would still be in the negative as pointed out by their Lordships of the Supreme Court in Fida Hussain vs. State of Uttar Pradesh (4 ). It may also be pointed out that the definition of 'foreigner' in the Act was further amended with effect from the 19th January, 1957, and the new definition is : "foreigner" means a person who is not a citizen of India. " The charge framed in this case does not show whether the respondent was being tried for breach of clause 7 of the Foreigners Order or for contravening the order of the Police Zone Officer Jodhpur dated 24th December, 1957. There is yet another flaw in the proceedings of the trial court. The accused was put the question whether he came in India under visa No. 16981 dated 20th June, 1956, but no such visa was produced on the record. The learned Deputy Government Advocate states that this visa was obtained by the accused in the year 1956 and was produced by the accused respondent before the Officer in charge Migration Check Post Barmer on 22nd June, 1956. But this visa was not produced and only the entry of the Register of Pakistani Nationals Ex. P-3 was produced.
(3.) ALL these circumstances and irregularities incline us to take the view that it would be proper for us to send the case back for a retrial so that both the prosecution and the accused may have a fair opportunity to plead their respective cases. The result is that the appeal is partially allowed and the order of acquittal dated 29th January, 1963, passed by the Additional Sessions Judge No. 2 Jodhpur is set aside and the case is sent back to the court of the City Magistrate Jodhpur for retrial. The City Magistrate is directed to dispose of this appeal at an early date. .;


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