W.Broome, J. - (1.) Saghir Ahmad, the applicant in this criminal revision, has been convicted by a first class Magistrate of Gorakhpur for an offence under Section 14 of the Foreigners Act read with Section 7 of the Foreigners Order and has been sentenced to six months' simple imprisonment. His conviction and sentence were confirmed in appeal by the Temporary Civil and Session Judge of Gorakhpur.
(2.) The facts of the case are as follows. Saghir Ahmad was born in Gorakhpur district in January 1937, but at the time of the communal riots that followed partition in 1947 he was attending school in Delhi and was sent to a refugee camp and from there to Pakistan, without his parents, who remained behind in India, being consulted in the matter. Eventually he got in touch with his parents and came back to India on 15-2-1955 on the basis of a passport issued on 3-11-1954 and a visa in category B valid for two months. He remained on in this country after the period noted in his visa had expired and was deported to Pakistan on 1-12-1956. Thereafter he came back to India without obtaining any passport or visa, and on 10-11-1957 was found living in a village in Gorakhpur district without any permit for his stay there.
(3.) The applicant was clearly an Indian citizen by reason of his birth and the burden lay on the prosecution to prove that he had in some way renounced or forfeited his Indian citizenship, before he could be convicted for an offence under the Foreigners Act. When he wag sent to Pakistani in the first place, he was only 10 years of age and! even when he obtained the Pakistan passport on 8-11-1954, he was still a minor. As pointed out by me in Sharafat Ali Khan v. State of U. P., ,1960 All LJ 461 : (AIR 1980 All 637), a minor cannot change his nationality without action being taken or consent being given by his guardian; and in the present case there is nothing whatsoever to suggest that the applicant's father, who went on living in Gorakhpur, ever wished him to renounce Indian Nationality or to become a Pakistan national. The declaration which he presumably must have made for the purpose of obtaining the Pakistan passport therefore was absolutely invalid and ineffectual and can have no value in the eye of the law, since it was made at a time when he was still a minor and legally incapable of changing his nationality of his own accord. It is clear therefore that when the applicant re-entered India on the first occasion on 15-2-1955 he had not validly renounced his Indian citizenship and must be deemed to have still been an Indian national on that date. Thereafter in 1956 he was deported to Pakistan against his will; but this action on the part of the authorities could not possibly have had the effect of depriving him of his citizenship. The methods by which Indian citizenship can be terminated are set forth in Sections 8, 9 and 10 of the Citizenship Act, namely renunciation, deprivation and termination by voluntary acquisition of the citizenship of another country. In the present case there is no suggestion that the applicant ever renounced his citizenship or was deprived of it in accordance with the procedure referred to in Sections 8 and 10 of the Act; and as regards his alleged requisition of Pakistan nationality (which according to Section 9 would have the effect of terminating his citizenship), I have already pointed out that the declaration which he made in the year 1954 in order to obtain a Pakistan passport could not have any legal effect, in view of the fact that he was a minor at the time. It follows therefore that the applicant was still an Indian citizen and not a foreigner when he returned to India for the second time in the year 1957; and whatever offence he may then have committed under the Passport Act by entering this country without any passport or permit, he certainly cannot be said to have committed any offence under the Foreigners Act;