- (1.) THESE two criminal revision petitions have been filed against the judgments dated 26.11.1994 passed by the learned District and Sessions Judge, Jaisalmer in Criminal Appeals No. 5/1991 and 4/1991 filed by petitioner Barsa S/o Jumma and Chanesar S/o Janu @ Jasu respectively against the judgment of conviction and order of sentence dated 31.08.1990 passed against the petitioners by the learned Chief Judicial Magistrate, Jaisalmer in Criminal Original Case No. 172/1980, whereby the accused- petitioner Barsa was convicted for the offence under Section 13(2) read with Section 14 of the Foreigners' Act and sentenced to undergo rigorous imprisonment for one year alongwith a fine of Rs.100/- and in default of payment of fine, further to undergo simple imprisonment for one month and accused-petitioner Chanesar was convicted for the offence under Section 14 of the Foreigners Act and sentenced to undergo rigorous imprisonment for two years alongwith a fine of Rs.500/- and in default of payment of fine, further to undergo imprisonment for six months. The brief facts giving rise to the present revision petitions are that on receiving a secret information, Dy.S.P., Jaisalmer alongwith police personnel reached the house of Barsa S/o Jumma at Mauja Undai to bring him under the suspicion that he was letting a Pakistani citizen to live in his house and it was further suspected that Barsa was keeping Pakistani citizens in his house who were spying on India. When police party reached the house of Barsa, he was not found at home, but a Pakistani citizen was found there, who told that he was resident of Village Jantau Ka Tala, District Sangad, Pakistan, on which the said person was arrested and a criminal case was registered. After usual investigation, charge-sheet was filed before the competent court against petitioner Chanesar being a Pakistani citizen and against petitioner Barsa for giving him shelter.
(2.) AFTER hearing the arguments on charge, accused Barsa was charged for the offence under Section 13 of the Foreigners' Act and accused Chanesar was charged for the offence under Section 3 and 14 of the Foreigners' Act. The charges were read over and explained to the accused, to which they did not plead guilty and claimed to be tried. During the course of the trial, the prosecution to prove its case examined as many as 10 witnesses, namely, P.W.1 Jagmalaram, P.W.2 Dheer Singh, P.W.3 Shaitan singh, P.W.4 Hari Kishan, P.W.5 Kachhaba Ram, P.W.6 Kayam, P.W.7 Kareema, P.W.8 Gulab Singh, P.W.9 Mauji Ram and P.W.10 Chandrapal. The incriminating evidence adduced against the accused was put to them for their explanation under Section 313 CrPC. Accused Barsa in his statement under Section 313 CrPC stated that Chanesar is not a Pakistani citizen and he is resident of Village Kuchhadi and also that he has not kept Chanesar in his house. Accused Chanesar in his statement under Section 313 CrPC stated that he is citizen of India and resident of Village Kuchhadi and he has not committed any offence. The accused in their defence examined 6 witnesses, namely, D.W.1 Nakhat Singh, D.W.2 Jalam, D.W.3 Raj Singh, D.W.4 Omkardas, P.W.5 Ramzan and P.W.6 Deedan. After hearing both parties, the learned trial court held the accused-petitioners guilty and convicted and sentenced them vide judgment and order dated 31.08.1990 as indicated above. Against the said judgment of conviction and order of sentence, the petitioners filed separate appeals. The learned appellate court while affirming the judgment of conviction and order of sentence, dismissed the appeals of both the petitioners and being aggrieved of that, the present revision petitions have been filed. The learned counsel for the petitioners contended that the learned trial court as well as the learned appellate court erred in convicting the petitioners for the offences for which they were charged because there was no evidence on record regarding the fact that petitioner Chanesar was at the relevant time a Pakistani citizen. During the course of the trial, two witnesses, namely, P.W.2 Dheer Singh and P.W.3 Shaitan Singh deposed in their statements that on the basis of the oral statement made before them by accused Chanesar, they came to know that Chanesar is a citizen of Pakistan and he came to India and lived in the shelter of petitioner Barsa. As per their statements, they both accompanied Dy. Superintendent of Police, Mr. Ashok Patni and they went to Village Khuiwala and no other evidence is available regarding the fact that accused Chanesar was at the relevant time a Pakistani citizen. Learned counsel for the petitioners further submitted that in defence the accused produced 6 witnesses and exhibited 5 documents, out of which Ex.D.1 is the certified copy of the card issued by the Relief Department, Tehsildar Jaisalmer and Ex.D.2 is the copy of the Khatoni of Village Kuchhadi having a land in the name of the father of petitioner Chanesar and a loan letter of the Tehsildar, Jaisalmer issued in the name of petitioner Chanesar and his brother Aluda. Ex.D.3 is the ration card issued by the Gram Sevak of the village and Ex.D.4 is the application for issuing the ration card and Ex.D.5 is the Khatoni of the agriculture land issued by the Assistant Settlement Officer, Jaisalmer. Learned counsel for the petitioners submitted that D.W.1 Nakhat Singh, the then Sarpanch of Poonamnagar, D.W.4 Omkardas, the Gram Sevak posted in 1980 in the Village Khuiwala, and other witnesses proved the documents from Ex.D.1 to Ex.D.5 and 3 other witnesses deposed that petitioner Chanesar belonged to Village Khuiwala and he is not a pakistani citizen. The learned counsel for the petitioners contended that from the facts of the case, it is not proved that petitioner Chanesar belongs to Pakistan and he was given shelter by petitioner Barsa. The learned counsel for the petitioners further contended that in the light of the judgment of the Hon'ble Apex Court in the case of State of Gujarat Vs. Yakub Ibrahim reported in AIR 1974 Supreme Court 645, which was followed by this court in the case of Imam @ Ilai Bux Vs. State of Rajasthan reported in RLW 1991 (1) 382, it is well-settled position that without determining the citizenship of a person by the competent authority under Section 9 of the Citizenship Act, 1955, a person cannot be convicted. The learned counsel for the petitioners contended that as per Section 9(2) of the Citizenship Act, 1955, the competent authority for determining the citizenship of a person is the Government of India and that question can only be determined by the Government of India and without there being the determination of the citizenship of the petitioner by the competent authority, no conviction can be based under the Foreigners' Act. Per contra, the learned Public Prosecutor defended the judgments of the learned trial court as well as the learned appellate court. I have considered the rival contentions made by both the parties and perused the record of the case. In this case there is no evidence on record to show that petitioner Chanesar was a Pakistani citizen at the relevant time and petitioner Barsa provided him shelter as being a Pakistani citizen and looking to the provisions of Section 9(2) of the Citizenship Act, 1955, without determination of the citizenship of a person by the competent authority, no such conviction can be based. In view of the judgments of the Hon'ble Apex Court and this court referred above, the finding of the learned courts below regarding commission of offence under Section 13(2) read with Section 14 of the Foreigners' Act by petitioner Barsa and commission of offence under Section 14 of the Foreigners' Act by petitioner Chanesar cannot be sustained and deserves to be set aside. Resultantly, both the revision petitions are allowed. The conviction and sentence passed by the learned courts below under Section 13(2) read with Section 14 of the Foreigners' Act against petitioner Barsa and under Section 14 of the Foreigners' Act against petitioner Chanesar are set aside. They are acquitted of the above offences. They are on bail, so they need not surrender and their bail bonds are discharged. However, petitioner Chanesar shall appear before the competent authority within six months from today and the competent authority shall determine the citizenship of the petitioner after giving him full opportunity to prove his case. The State will be free to prosecute if and when a decision against the petitioner is obtained from the competent authority, in accordance with law. ;