M.N.Shukla, J. - (1.) THIS Govern ment appeal is directed against the order dated 16-9-1968 passed by the 1st Tempo rary Civfl and Sessions Judge, Aligarh setting aside the conviction and sentence of the res pondent under Section 14 of the Foreigners Act The respondent was convicted by the to whether the respondent was a citizen of India. If he was not a citizen of India he could be treated as a foreigner and be proceeded against for contravention of para graph 7 (2) of the Foreigners Order. Before the enactment of the Citizenship Act, 1955 (No. 57 of 1955) the only provisions of law on the basis of which citizenship could be determined were those contained in the Constitution of India. Article 5 of the Con stitution reads as under:- "5. At the commencement of this Con stitution, every person Who has his domi cile 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 commen cement, shall be a citizen of India." Another relevant provision of the Constitu tion is Article 7, the material portion of which runs as follows:- "7. Notwithstanding anything in Arti cles 5 and 6, a person who has after the first day of March, 1947, migrated from the territory of India to the territory now in cluded in Pakistan shall not be deemed to be a citizen of India." It would be seen that while Article 5 con fers the right of citizenship on a person if at the date of the commencement of that Constitution he fulfills any of the conditions enumerated therein, Article 7 engrafts a kind of proviso thereto. The opening words of Article 7 exclude the applicability of Article 5 and it cannot be doubted that if the condition prescribed by Article 7 exists in a case the person concerned shall not be deemed to be a citizen of India at the com mencement of the Constitution. The non obstante clause makes it clear that Article 7 overrides Article 5 of the Constitution.
(2.) IN the present case there is no controversy that the respondent was born in India and that he returned to India in 1954. So far as the date of his migration to Pakis tan is concerned, the finding of feet record ed by the Court below is that he migrated in the year 1949. The exact date or month of his migration could not be fixed from die evidence in the case. Hence, the possibility of his migration after the 1st March, 1947 but prior to the 26th November, 1949 can not be ruled out. It is precisely of this little lacuna that the respondent wants to take advantage and the entire contention raised on behalf of the respondent is based on this circumstance, namely, the uncertainty of the exact date of his migration. In support of his contention the learned counsel for the respondent placed reliance on Article 394 of the Constitution which reads as follows:- "394. This Article and Articles 5, 6, 7, 8, 9. 60, 324, 366, 367, 379, 380, 388, 391; 392 and 393 shall come into force at once and the remaining provisions of this Constitution shall come into force on that twenty- sixth day of January, 1950, which day is referred to in this Constitution as the commencement of this Constitution. ' The above Article provides that Articles 5, 6, 7, 8, 9 etc. shall come into force at one while the remaining provisions of the Con stitution shall come into force on the 26th January, 1950. The earlier date on which Articles 5 to 9 eta came into force is that 26th November, 1949 as borne out by that preamble of the Constitution. On the basis of this date Sri Sharafat Ah', learned coun sel for the respondent has strenuously contended before us that the consequence con templated by Article 7 will be visited only upon a person who migrated from India to Pakistan after the 26th November, 1949, the date of the enforcement of Article 7. Act cording to him by virtue of being born in India and having resided in India till some date in 1949 the respondent acquired the light of citizenship and must be deemed under Article 5 to have become a citizen of India at the commencement of the Consncal ration He can be disentitled from that "right only when he comes within the mischief of Article 7, which event cannot transpire be fore the said Article came into force, la other words, the respondent wants us in substance to read in Article 7 a proviso to the effect that such a person shall not be deemed to be a citizen of India if he mig rated after the 26th November, 1949. The argument is attractive but untenable. In our opinion the language of Article 7 cannot bear such construction. Article 5 expressly speaks of the rights which would accrue at the commencement of this Constitution, which words again have a fixed meaning as provided by Art. 394. Article 394 refers to 26th January, 1950 as the date "of the com mencement of this Constitution". Therefore, Article 7 must be read in conjunction with Article 5 and must relate to the same crucial date as the date of the commencement of the Constitution. A close scrutiny of Article 7 of the Constitution leads to the conclusion that ft is a drastic provision which results in de privation of the right of citizenship of a person who earned it by virtue of Article 5. It is common knowledge that the 1st day of March, 1947 was the vital date when an option was given to a class of Indian citi zens either to stay in this country or to mig rate to the territory now included in Pakis tan. Those who exercised this option by mig rating to Pakistan after the aforesaid data were not considered entitled to acquire Indian citizenship. From all points of view that remained the cardinal date and conse quently the date of the commencement of Article 7 i.e. 26th November, 1949 is irrele vant. Any one who migrated to the terri tory now included in Pakistan in the period between the of March, 1947 and the 26th January, 1950 (the date of the com mencement of the Constitution) shall not be deemed to be a citizen of India. This is the conclusion which emerges on a comparative perusal of Articles 5 and 7 of the Constitu tion.
(3.) SRI Sharafat AH, learned counsel for the respondent relied on a decision of the Supreme Court in Shanno Devi v. Man-gal Sain, AIR 1961 SC 58 wherein while construing Article 6 (b) of the Constitution it was observed by Das Gupta, J. (In para graph 16 of the Reports.). "For applying the test of being "ordi narily resident in the territory of India since the date of his migration", it is necessary therefore to consider the period upto the 26th day of November, 1949 from the date of migration. It is not, however, even necessary that on the 26th day of Novembers, 1949 or immediately before that date he must have been residing in the territory of India. What is necessary is that taking the period beginning with the date on which migration became complete and ending with the date November, 26, 1949, as a whole, the person has been 'ordinarily resident in the territory of India'." ;