M.C.Desai, J. - (1.) The applicant has been convicted under Section 14 of the Foreigners Act, 1946, for the act of not departing from India before the expiry of the period mentioned in his visa and extended by the District Magistrate, Rampur.
(2.) The applicant was a resident of Rampur. He went from India to Pakistan, though it is not known when, and whether before, or after, 26-1-1950. It may be conceded that he was an Indian national before he went to Pakistan, On 19-7-1955 he obtained a passport for India as a Pakistani national and on 7-2-1957 he obtained from the High Commissioner for India at Karachi a visa permitting him to stay in India for three months. He came from Pakistan to India on 15-2-1957 and according to the period mentioned in the visa he was bound to depart from India on or before 14-5-1957. This period was extended by the District Magistrate, Rampur, through an endorsement on the visa itself, by one month; so he became liable to depart from India on or before 14-6-1957. He did not depart from India and a notice was served upon him to depart from India within a certain time but he refused and, thereupon, he was prosecuted under Section 14 of the Foreigners Act,
(3.) Section 2 (a) of the Act defines a "foreigner" to be a person who is not a citizen of India. Uptill 1956 the word was defined differently, but it is. not in dispute that the applicant's case is governed by the definition as it stands now. If he was not a citizen of India on 15-2-1957 he was a foreigner. Section 3 authorises the Central Government to make provision with respect to foreigners for, among other matters, their continued presence in India and their departure from India. In exercise of this power the Central Government made the Foreigners Order, 1948. In this case I am concerned only with Rule 7 of the Order, which reads an follows : "Every foreigner who enters India on the authority of a Visa issued in pursuance of the Indian Passport Act ..... shall obtain from the Registration Officer having jurisdiction, either at the place at which the said foreigner enters India of at the place at which he presents a registration report in accordance with Rule 6 of the Registration of Foreigners Rules 1939, 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." Section 14 of the Foreigners Act punishes a person who contravenes the provisions of the Act or of any order made thereunder. The Indian Passport Act, 1920, empowers the Central Government, through Section 3, to make rules requiring that persons entering India shall be in possession of passports, and for all ancillary and incidental matters, and confers power to arrest any person who contravenes any provision of it or of a rule made thereunder and to remove him from India. The Central Government in exercise of the power conferred by Section 3 has made Indian Passport Rules, 1950; Rule 3 prohibits entry into India without a valid passport conforming to the conditions of Rule 5, Rule 5 (iv-A) lays down that a passport issued by the Government of Pakistan should be endorsed by a proper Indian Diplomatic, Consular or Passport Authority with the visa for India of category C if the intended stay in India does not exceed three months, Rule 5-A authorises Diplomatic, Consular or Passport Authority referred to above to make an order that the endorsement by way of visa made by it on a passport shall be of no effect and to require the production of the passport before it and cancel the visa endorsement on it, and Rule 6 provides punishment for any person who contravenes Rule 3. Neither the Act nor the Rules provide for a breach of the condition of the visa limiting the period of the foreigners' stay in India, i.e. for his staying in India beyond the period mentioned in the visa. Rule 3 only requires that he shall have a valid passport endorsed with a visa but does not require him to leave India on the expiry of the period mentioned in the visa. Rule 5 also does not require him to leave India on the expiry of the period and Rule 6 does not punish him if he does not. The reason for not providing any punishment for not leaving India before the expiry of the period mentioned in the visa seems to be that Sections 4 and 5 of the Act conferring powers for his arrest and removal were thought to be sufficient. The only appropriate course to be taken against a foreigner, who does not leave India on the expiry of the period mentioned in the visa, is to remove him from India; punishing him and sending him to jail would be quite the reverse of his fulfilling the obligation to depart from India. If he is bound to depart from India, it would be useless to let him remain in India, even in jail; he must be made to go out of India. For this, forcible removal is the only appropriate remedy. The Registration of Foreigners Act of 1939 was enacted to confer power upon the Central Government to make rules requiring foreigners, e.g. persons who are not citizens of India, to get themselves registered before the prescribed registration authorities. The Registration of Foreigners Rules, 1939, made in exercise of the power, require every foreigner entering into India to present in person to the appropriate registration officer a report of his arrival in India within a certain time and provide for the issue of a certificate of registration,;