minal Appeal No 164 of 1970
Appeal by special leave from the Judgment and order dated the 3rd 4th December 1969 of the Gujarat High Court in Criminal Appeal No 295 of 1966
573 R H Dhebar and section P Nayar for the appellant
A section Qureshi Vimal Dave and Kailash Mehta for the respondent
The Judgment of the Court was delivered by BEG J
This is an appeal by special leave against the acquittal of the appellant from a charge framed on 21 9 1967 as follows That you on or about the 31st day of March 1967 at about 930 pm were found in State Transport Corporation Workshop at Naroda in Ahmedabad and you are a foreigner and you had come from Pakistan and you had been permitted to stay in India till 20th September 1958 by Assistant Secretary to the Government of Bombay and did not depart from India before expiring of that permit issued to you by No 19904 dated 6 12 1967 before the date 20th September 1958 and remained in India and thereby you contravened the previsions of clause 7iii of Foreigners Order 1948 and thereby committed an offence punishab le under Section 14 of and within my cognizance
The above mentioned charge was supported by the statement of Mahmadmiya P W 2 Sub Inspector Special Emergency Branch Ahmedabad showing that the appellant was working in Baroda Central State Transport Workshop when he was arrested as a consequence of the information that he was a Pakistani national who had come to India in 1955 on a Pakistani passport
The accused had produced his Pakistani passport exhibit 11 dated 8th September 1955
The prosecution had also relied upon an application for a visa made by the accused to the High Commissioner for India in Pakistan on 10th October 1955 in which he had inter alia stated that he had migrated from India to Pakistan in 1950
Undoubtedly the prosecution was handicapped in producing evidence to show when and how and with what intention the appellant had gone to Pakistan
It could only show how and when and on what passport he returned to this country
The accused respondent had produced credible evidence to prove that he was born at Dhandhuka in the State of Gujarat on 15th May 1936 that he was living at Dhandhuka and attendee school there until 1952 when he moved to Ahmedabad with his father and that he had gone to Pakistan in a state of anger while he was a minor after a quarrel with his father who had driven him out of his house
The respondent denied that he had the intention of settling down in Pakistan
He asserted that within six months of his arrival in Pakistan he regretted having left India and tried to come back to his home
He alleged that as he was unable to come home without a Pakistani passport he had to apply for and get one
The respondent asserted that he was an Indian citizen when the Constitution came into force on 26th January 1950 and that he had continued to be an Indian citizen thereafter as he had never migrated to Pakistan
His explanations about 1 M602Sup
CI74 574 the passport and the visa application implied that he had obtained the passport by making false declarations and that the statement in the visa application that he bad migrated to Pakistan in 1950 was one of those untrue declarations which had been made only to obtain a passPort
Probably lie had to show under the law in Pakistan that he had settled down in Pakistan and become a Pakistani national before obtaining a Pakistani passport
The judicial Magistrate had acquitted the respondent after examining the cases set up by the two sides and holding that the respondent had proved that he was an Indian citizen who had never in fact migrated to Pakistan
In an appeal against the acquittal the High Court of Gujarat had upheld the acquittal and confirmed the finding that the appellant was an Indian citizen when the Constitution came into force on 26th January 1950
It had also held that the appellant was a minor when he visited Pakistan
It had found it unnecessary to record a finding en the question whether the appellant s visit to Pakistan could be held to be one made under compulsion or for a specific purpose so as to come within the class of those exceptional cases mentioned in Kulathil Mammu
vs The State of Kerala 1 in which a migration would not take place even if the wider test of the term migration were adopted
That wider test would apply to those who had gone to Pakistan in the period between 1st March 1947 and the commencement of the Constitution It has to be remembered that Article 7 of the Constitution was held in Kulathil Mammut s case supra to contain an exception to the operation of Article 5 of the Constitution for conferring citizenship of India on persons who at the commencement of the Constitution had satisfied the test of Indian domicile
The general principle laid down by Article 5 was that citizenship followed domicile at the commencement of the Constitution
But the migration as contemplated by Article 7 was held in Kulathil Mammu s case supra to have a wider meaning than change of domicile
Hence the view of this Court in Smt
Shanno Devi vs Managin Sain 2 was overruled
It has however to be remembered that in Kulathil Mammu s case supra where the alleged migrant who was also a minor at the time of the alleged migration had gone to Karachi in 1948 which was before the commencement of the Constitution
in the case before us the finding of the Trial Court as well as the High Court on the evidence before them was that the appellant had
as he asserted gone to Pakistan in 1953 54 which was after the commencement of the Constitution
Hence the case of the respondent could not fall within the classes to which Article 7 was especially intended to apply
Article 7 had necessarily to be read with Articles 5 and 6 of the Constitution and not in isolation The High Court had come to the conclusion that as the only case set up by the prosecution was that the respondent had migrated before the 26th January
1950 it need not consider and decide the question 1  2  575 whether he had gone to Pakistan after 26th January 1950 and thus had voluntarily acquired Pakistani nationality and lost Indian citizenship
If as it rightly held it had been proved that the respondent went to Pakistan after 26th January 1950 Article 5 of the Constitution would still operate in his favour
The High Court rightly pointed out that as the respondent was an Indian citizen on the date of the commencement of the Constitution entitled to the benefit of article 5 of the Constitution the further question whether he had lost Indian citizenship after that date or not could only be decided by the Central Government as laid down in section 9 of the Indian 
It acquitted the respondent because it thought that the prosecution had not proved the only case set up by it
We have therefore to examine the charge framed against the respondent so as to determine whether the view of the High Court that the only question which need be considered by it was whether the respondent was an Indian citizen on 26th January 1950 was correct
We find from the charge set out above that the prosecution case was not confined to the determination of the citizenship of the respondent at the time of the commencement of the Constitution
We also find that the respondent had himself raised the question whether on the facts set up by him the prosecution could proceed at all in view of section 9 of the 
The Trial Court had observed The lawyer of the accused argued that under Section 9 of the the question whether any citizen of India had any time between the 26th day of January 1950 and the commencement of the acquired the citizenship of another country was to be determined by the Central Government
A court should not decide whether an Indian citizen had acquired the citizenship of another country
The police prosecutor argued that as the accused had gone to Pakistan and he obtained Pakistani Passport the accused must be held to be national of Pakistan and so a citizen of Pakistan and so is foreigner in India and so the accused must be convicted of the offence section 14 of the Foreigners  Act read with clause 73 rule iii of Foreigners  Order 1948
The Court had jurisdiction to decide whether the accused is a foreigner
if the accused wanted to get it decided that he is yet citizen of India the accused should apply to the Central Government and get decision under section 92 of the 
The clause 3 of Schedule III of the Citizenship Rules 1956 provides that the fact that a citizen of India has obtained on any date a passport from the Government of any other country shall be conclusive proof of his having voluntarily acquired the citizenship of the country before that date
As this accused has come from Pakistan to India the Police Prosecutor argued the accused should be convicted of the offence section 14 of Foreigners  Act read with clause 73 iii of Foreigner s order
576 We also find from the grounds of appeal against the acquittal of the respondent the appellant s application for certificate of fitness for appeal to this Court under Article 134 of the Constitution and from the special leave petition under Article 136 of the Constitution in this Court that the prosecution had been inviting a decision on the question whether an order of acquittal could be passed without deciding a question which fell within the purview of Section 9 of the Indian 
It was not proper for the prosecuting authorities to have proceeded with the case against the respondent when upon the facts set up by the respondent it became clear that the respondent could not be prosecuted or convicted without a determination under Section 9 of the  that he had voluntarily acquired the citizenship of Pakistan between 26th January 1950 and the commencement of the on 30th December 1955
This Court has re peatedly laid down that if such a question arises in the course of a trial it must be left for decision by the appropriate authorities
It may be that the rules framed by the Central Government under Section 30 sub
s 2 of the Citizenship Rules under Section 18 of the  had provided that the passport shall be conclusive proof that its holder has acquired the citizenship of the country whose passport he holds
We however do not know whether the Central Government has modified such a rule
When the validity of that rule came up for consideration before a Bench of seven judges of this Court an assurance was given on behalf of the Central Government that a suitable modi fication of the relevant rule would be made
However that question is not under consideration before us now
All we need consider here is whether the acquittal of the respondent was in the circumstances disclosed above justified
in view of Section 92 of the  which has been subject matter of several decisions of this Court See  State of Andhra Pradesh vs Abdul Khader 1 Abdul Sattar vs State of Gujarat 2 and Akbar Khan vs Union of India 3 the question whether a person voluntarily acquired the citizenship of Pakistan during the specified period could only be determined by the Central Government
In Akbar Khan s case Supra it was observed by this
Court at page 782 If it was found that the appellants had been on January 26 1950 Indian citizens then only the question whether they had renounced that citizenship and acquired a foreign citizenship would arise
That question the Courts cannot decide
The proper thing for the court would then have been to stay the suit till the Central Government decided the question whether the appellants had renounced their Indian citizenship and acquired a foreign citizenship and then dispose of the rest of the suit in such manner as the decision of the Central Government may justify  1  2 AIR 1965 SC 810 3  577 On principle it does not matter whether the question which can only be determined by the Central Government under Section 9 of the arises in a civil suit or in a criminal prosecution
If the real question which arises for determination is whether a person who was an Indian citizen when the Constitution came into force had acquired the citizenship of another country or not during the specified period the proper thing to do for a Court where the question arises is to refuse to adjudicate on that question
In the case before us it appears that the issue was raised but not decided either in the Trial Court or in the High Court
Indeed the judgment of the High Court shows that probably for this very reason the prosecution had tried to obtain the conviction of the respondent on the ground that he had acquired Pakistani citizenship before the commencement of the Constitution
That question had been rightly decided against the appellant
on that short ground the acquittal of the appellant could have been upheld if the prosecution case was confined to that question
But after having examined the charge framed the cases set up by the two sides the contentions advanced in the Trial Court the grounds of appeal to the High Court and those given in the special leave petition in this Court we think that a question of Jurisdiction of the criminal courts to record either a conviction or acquittal in the case of the respondent had properly arisen
Indeed the real and decisive question to be considered and decided was not whether the respondent possessed Indian nationality and citizenship on 26th January 1950 but whether he had lost that nationality at the time when he entered this country on a Pakistani passport
The respondent has been charged for overstaying contrary to the terms of the permit issued on 6th December 1957 by which he was allowed to stay until 20th December 1958
Therefore it was clear that the decisive question which the Courts should have considered was whether at the time when permission was given and when the alleged overstay contrary to the provisions of clause 7iii of the Foreigners  Order 1958 took place the respondent was a foreigner
Without a decision of an appropriate authority on that question neither an acquittal nor a conviction could be recorded
As no finding can be given by criminal or civil Courts in a case in which an issue triable exclusively by the Central Government has properly arisen the question of burden of proof dealt with in Section 9 of the  is immaterial
However in view of the erroneous procedure adopted on behalf of the State in pressing for a conviction when it was clear that the charge could not succeed at all without obtaining a decision from the appropriate authority we think that the correct order to pass in this case is 578 not just to stay further proceedings after quashing the acquittal so as to await the decision of the appropriate authority but to quash the charge itself so that the accused may be discharged
This would leave the State free to prosecute the respondent if and when a decision is obtained against him from the appropriate authority in accordance with the law
That authority will no doubt consider all the relevant facts including the total period of the respondent s stay in this country as compared with the short period of his stay in Pakistan and the circumstances in which the respondent alleges having obtained a Pakistani passport and made a false statement in the visa application relied upon by the prosecution
The result is that we allow this appeal and set aside the acquittal of the respondent
We also quash the charge framed against the respondent and order that he be discharged
SBW Appeal allowed


Summary:
The respondent was prosecuted under clause 7iii of the Foreigner s Order 1958 read with Sec
14 of the for over staying in India after the expiration of the permit
The respondent had entered India on a Pakistani passport
At the trial the respondent produced evidence to show that he was a citizen of India when the Constitution came into force on 26 1 1950 and never migrated to Pakistan to obtain the citizenship of that country
He further stated that he had to obtain the Pakistani passport against was volition
The respondent further urged that without the decision of the Central Government us 92 of the as to whether he has acquired Pakistani citizenship or not the prosecution under the was incompetent
The trial Magistrate acquitted the respondent holding that he had proved that he was an Indian citizen who never migrated to Pakistan
The High Court upheld the acquittal as it thought that the prosecution had not proved the only case set up by it namely that the res pondent was not an Indian citizen on 26 1 1950
Quashing the charge and setting aside the acquittal HELD  1 The real and decisive question to be considered and decided was not whether the respondent possessed Indian nationality and citizenship on 26 1 1950 but whether he had lost that nationality at the time when he entered this country on Pakistani passport
Without a decision of the Central Government under section 92 of the on that question the Criminal Court had no jurisdiction to acquit or convict a person
II After having examined the charge framed the cases set up by the two sides the contentions advanced in the trial court the grounds of appeal of the High Court and those in the special leave petition we think that the question regarding acquisition of foreign citizenship by the respondent was the decisive question
The respondent had himself raised the plea although he gave an impression that the prosecution was inviting a decision on the legality of the order of acquittal without obtaining a prior decision of the Central Government under Sec
92 of the 
It was not proper for the prosecuting authorities to have proceeded with a case without the determination of the said question under sec
92 of the 
577 D III In view
of the erroneous procedure adopted on behalf of the State in pressing for a conviction without obtaining a decision from the appropriate authority quashing of the charge itself is the correct order
This would leave the State free to follow the proper procedure under law regarding the acquisition of foreign citizenship by the respondent and then to prosecute the respondent
577 H State of Andhra Pradesh vs Abdul Khader   Abdul Sattar vs State of Gujarat AIR 1965 section C 810 and Akbarkhan vs Union of India   followed
Kulathilmammu vs State of Kerala   referred to