- (1.) IN this criminal revision, the petitioner invoking inherent jurisdiction of this Court, challenged his prosecution under section 14 of the Foreigners act, in connection with the G. R. Case No. 44/08 now pending before the learned Metropolitan Magistrate, 14th Court, Kolkata arising out of burrabazar Police Station Case No. 8 dated January 9, 2008 and prayed for quashing of the said proceedings.
(2.) MR. Amitava Ghosh, the learned Advocate, appearing in support of this application vehemently urged before this Court that the petitioner has been falsely implicated in the aforesaid case by the police. He further urged that the impugned proceeding under section 14 of the Foreigners act, having been initiated against the petitioner without determination of the question of his citizenship in accordance with Section 9 (2) of the citizenship Act read with Rule 30 of the citizenship Rules by the Central government, the competent authority is patently illegal and not tenable. In support of his submission mr. Ghosh vehemently relied on a decision of our High Court in the case of Haridas roy and Anr. v. Stafe of West Bengal, reported in 2000 Calcutta Criminal Law Reporter (Cal) 418. He draws the observation of this Court in Paragraphs-8 and 10 of the said decision and same are quoted below:- "i find that the petitioners have faced the trial in connection with G. R. Case No. 80 of 1999 under Section 14 of the said Act and at the conclusion of the trial just on the eve of pronouncing the judgment, the learned Sub-Divisional judicial, Magistrate found that there is no determination of the citizenship of the accused by the competent authority and accordingly directed them to apply before the Central Government for the said purpose. " (para 8) "i find in view of the decision of this Court in the case of Mrs. Raushan Ara @ Suraiya (supra) it is incumbent upon the prosecution to ascertain the determination by the central Government is a condition precedent before initiating a proceeding under the said act. In such view of the matter, since the learned Sub-Divisional judicial Magistrate at the terminal point of the trial had passed this order, the ratio of the said decision in the case of Mrs. Raushan Ara @ Suraiya (supra) squarely applies and the order passed by the learned Magistrate cannot be sustained. " (Para 10)
(3.) SIMILARLY Mr. Ghosh relied another decision of our High Court in the case of Mrs. Raushan Ara @ Suraiya v. State of West Bengal, reported in 1996 Calcutta Criminal Law Reporter (Cal)223 for our case the observation of the Court in Paragraphs-9 and 11 of the said decision and same is quoted below:-"i have heard the learned Advocate appearing for the petitioner and also the learned Advocate appearing for the State. On the point of fact learned Advocate appearing for the petitioner has produced xerox copies of number of document to show that since her birth in calcutta, she is perusing her studies in calcutta till she left the same for Karachi on her marriage on 9. 10. 93. It has been argued that the petitioner being an Indian citizen, the citizenship was not lost merely by her migrating to Pakistan after her marriage. It is contended that mere acquisition of a Pakistani passport under compulsion by her in-laws cannot take away her citizenship in India. It is also argued that the question of petitioner continuing to remain an Indian citizen or acquiring citizenship of another country in this case Pakistan can be determined by the Central Government alone in accordance with section 9 (2) of the Citizenship Act read with Rule 30 of the citizenship Rules. It is contended that such determination has not been made as yet and as such initiation of a case under Section 14 of the Foreigners Act is bad-in-law. In support of his contention the learned Advocate amongst others has relied on decisions reported in 1971 Cr LJ 1103 and also 1963 supreme Court Appeals, 649 on the basis of the said decisions it has been argued that in the absence of a determination in accordance with Section 9 (2)of the Citizenship act read with Rule 30 of the Citizenship Rules, it cannot be state that she has lost her citizenship in India or she has acquired citizenship of Pakistan. It has also been contended that she came to India on the basis of a valid passport and visa and before the expiry of the period mentioned in the visa she applied to the proper authority for extension of the same and inspite of repeated sittings no decision was taken or communicate by the enquiring authority to her. On the other hand, she was put under arrest after she was called to attend the Office of a Police officer and a Criminal Case under Section 14 of the Foreigners Act was started against her. It is contended on the basis of Articles 7 and 9 of the Constitution of india that her citizenship cannot automatically come to an end in the facts and circumstances of the case", (para 9) "after giving my careful consideration to the submissions of both the side and having regard to the law as laid down by the cited decisions it can at once be said without going into the merit of rejection of an application under section 321, Cr. P. C. In this particular case, that the initiation of a proceeding under the Foreigners Act against the petitioner is not at all tenable in law. That the petitioner is originally a citizen of India by birth cannot be disputed. It is true, that in October, 1993 she migrated to pakistan to her matrimonial home following her marriage with a Pakistani national. During her stay in the matrimonial home she visited calcutta on the strength of a Pakistani passport and visa allowed by the Government of India and stayed in India for six (6) months. In the present case her entrance to India is not a clandestine affair but she came on the strength of a valid Pakistani passport and a visa granted by the government of India. She applied for extension of the visa before its expiry and fully co-operated with the enquiring authority by producing documents including Ration Cards in her favour. The said authority neither rejected nor allowed the prayer for extension but started a case under the Foreigners act against her and put her behind the bar. There being no determination by the Central government being the only authority in accordance with Section 9 (2) of the Citizenship Act read with Rule 30 of the Citizenship Rules that she has lost Indian Citizenship and that she is a Foreign nationals, her Indian Citizenship stands good and as such no criminal prosecution can lie against her in accordance with the Foreigners act. As such the continuance of such a proceeding is absolutely an abuse of process of the Court. " (para 11);