Masud, J. - (1.) This is an appeal from the Judgment and order of Banerjee, J., dismissing the appellant's application under Article 226 of the Constitution by refusing to issue a Rule. The substantial relief which the appellant sought to obtain in the said application was for cancellation of the order dated 20th March, 1965, passed by Sri. S. Neogi, Sub-divisional Magistrate, Kandi, District Murshidabad. The circumstances under which the said order was made are stated as below :--
(2.) The appellant was born in the ancestral home at Telduma, P.S. Barwan, Murshidabad on April 1, 1937. After finishing his primary education at Sabolda, he continued his studies at Panchthupi T.N. Institution in Murshidabad from 1947 to 1950. He appeared in the Matriculation examination from the Panchthupi T.N. Institution in 1951 but failed to pass. The same year he was taken to Pabna, East Pakistan by his elder brother who was serving in Pabna District Board as a clerk, for educating him at Pabna. In 1953, the appellant passed the Matriculation Examination at Pabna and thereafter was admitted in the Intermediate course in Science in Edward College, Pabna. But he having failed to pass the Intermediate Examination and on account of the deteriorating health of his aged father, decided to return to his village home in West Bengal. According to the appellant, he duly applied for an Indian Passport, but before he could obtain it he received the news of his mother's serious illness and applied for a Pakistani Passport which he ultimately got on June 6, 1957. As his father was not in good health and also at the desire of his mother he was married at village Khanji, P.S. Ketugram, District Burdwan. According to the appellant, immediately on his arrival in India towards the end of 1960 his father took his Pakistani Passport from him and surrendered the same in the office of the Deputy High Commissioner for Pakistan at Calcutta on his behalf. In 1962 his father died leaving substantial immovable property in West Bengal. According to the appellant, the local Police of the D. I. B. wanted him to file an application under Section 5(1)(a) of the Indian Citizenship Act 1955, but the appellant refused to do so as he claimed to be an Indian National by birth. The appellant, therefore, made an application to the Deputy Secretary, Home (Passport), Writers' Buildings, Calcutta, on 4th March 1965 for determination under Section 9(2) of the Citizenship Act, 1955. Copies of the said application were sent to the Superintendent of Police, D. I. B., Murshidabad and District Magistrate, Murshidabad. Thereafter, R. Mukharji, Officer-in-Charge, Burdwan Police Station, District Murshidabad, Respondent No. 3, on the basis of his first information report dated 18th March 1965 framed a charge against him on the same day under Section 14 of the Foreigner's Act for contravention of Section 3(2)(a)(b) of the Foreigner's Act 1946. It may be stated here that the usual notice to quit India was not issued at all. On March 20, 1965 the said Sri. S. Neogi, Respondent No. 2 passed an order for simultaneously issuing warrant of arrest, proclamation and attachment against the appellant on the basis that the appellant was a Pakistani National and was residing illegally in West Bengal since 1960. On the basis of the said order, Respondent No. 3, seized appellant's cattle numbering 11 on 22nd March 1965 during the temporary absence of the appellant. On March 30, 1965 the appellant moved the said application under Article 226 before Banerjee, J., which was rejected ex parte. The same day he filed the present appeal and obtained the necessary directions from the Hon'ble Chief Justice and Mitter, J., for filing paper books by 7th May 1965. The said appeal was assigned by the Hon'ble Chief Justice to this Bench for expeditious hearing. According to Md. Ali, learned Advocate for the appellant, the appellant on the basis of some observations of the Chief Justice surrendered himself before the S. D. O., Kandi on April 19, 1965 with an application for bail, but the learned S. D. O. refused to grant him bail on the ground that he would go away to Pakistan. On the 21st April, 1965, the appellant moved the Sessions Judge, Murshidabad who also rejected the bail application by simply endorsing the view of the S. D. O. On May 3, 1965 the applicant who is still in jail custody moved an application before us. But the said application was dismissed on the ground stated in the said order.
(3.) Mr. Ali contends that the said order dated 20th of March 1965 passed by Respondent No. 2 is illegal and should be quashed on the following grounds :-- (a) The appellant left for Pakistan at the age of 14 in 1951 when the passport system between India and Pakistan was not introduced. (b) He, having failed to pass his examination in Murshidabad, went to Pakistan only for the purpose of getting education. (c) On 26th January 1950 he was an Indian National by birth and had an Indian domicile and since then he has not voluntarily acquired new nationality nor has ever intended to migrate to or settle in Pakistan permanently. (d) He belongs to West Bengal and all his relations including his parents and wife and children are Indian nationals and are residents of West Bengal. His name has duly been recorded as a voter under the Representation of the People's Act in the voters' list of Khargram Assembly Constituency in all the general elections held after independence to the West Bengal Legislative Assembly and India Parliament. The sitting Prodhan of Sabaldha Anchal Panchayat who knows the appellant and his family has given a certificate to the effect that he is by birth an Indian citizen. He has his properties in the State of West Bengal and has been duly paying rents and taxes to the authorities concerned. (e) At the request of his aged father and on account of serious illness of Ms mother, he obtained Pakistani Passport on June 6, 1957 only for the purpose of crossing the border. (f) As he has not left India before 26th of January 1950, Article 7 of the Constitution does not apply to him. Article 9 also of the Constitution has no application in his case because he has not voluntarily acquired citizenship of any foreign State. (g) In any event, as the question has arisen as to whether the appellant has acquired the citizenship of Pakistan or not, it can only be determined by the Central Government in accordance with Section 9 (2) of the Citizenship Act read with Rule 30 and no other authority has jurisdiction to determine such question of nationality. Accordingly, the learned S. D. O. of Kandi has no jurisdiction to take cognizance of a criminal proceeding against him and to make the said order dated -20th of March 1.965. (h) The Respondent no. 2 has acted mala fide in passing the said order dated 20th March 1965 inasmuch as, no order to quit India has been served on him and he acted contrary to Sections 87 and 88 of the Code of Criminal Procedure by issuing warrant of arrest, proclamation and attachment simultaneously against him.;