minal Appeal No 192 of 1959
Appeal by special leave from the judgment and order dated October 27 1958 of the Andhra Pradesh High Court at Hyderabad in Criminal Revision Case No 395 of 1958
M C Setalvad Attorney General of India T V R Tatachari and T M Sen for the appellant
R Thiagarajan for N section Mani for respondent
April 4
The Judgment of the Court was delivered by SARKAR J
The respondent was convicted by the Judicial Magistrate of Adoni in the State of Andhra Pradesh under section 14 of the 
His appeal to the Sessions Judge of Kurnool was dismissed
He then moved the High Court of Andhra Pradesh in revision and the revision petition was allowed
Hence the present appeal by the State of Andhra Pradesh
The facts found were these On January 20 1955 the respondent had come to Adoni on a passport granted by the Government of Pakistan which bore the date January 10 1955
The passport had endorsed on it a visa granted by the Indian authorities which permitted the respondent to stay in India up to April 14 1955
The respondent continued to stay on in India after that date
On some date not precisely ascertainable from the record he appears to have made a representation to the Government of India for extension of his visa till September 2 1957 on grounds of health
The records do not however show what order if any was made on this representation
On September 3 1957 an order dated August 9 1957 made by the Government of Andhra Pradesh requiring him to leave India was served on the respondent As the respondent did not leave India as directed by this order he was prosecuted with the result earlier stated
The passport showed that the respondent was born at Adoni in 1924 The respondent appears to have 740 produced an extract from the municipal birth register which is not on the record but presumably showed that he was so born
The only evidence on the record of the date when he left India shows that must have been at the end of 1954 or early in 1955
There is evidence to show that he had been paying rent for his hop at Adoni for about ten years prior to 1958 and his parent section brothers wife and children were
and bad always been in India
The respondent was charged with the breach of the order to leave India which had been made under section 3 2c of the 
Now the order could not be made on him neither could he be convicted for breach of it if lie was not a foreigner
That was the defence of the respondent namely that he was not a foreigner
The question is was a foreigner The learned Judicial Magistrate found that by obtaining the passport from the Pakistan authorities he has disowned Indian nationality and has ceased to be an Indian National He also held that section 9 of the did not apply to the case but section 8 of that Act did and that under that section a decision made by the Government that a person is a foreigner is final and such a decision had been made in this case regarding the respondent as the Government had decided not to grant him an extension of his visa
On these grounds he found that the respondent was a foreigner
It seems to us that both these grounds are untenable
Section 8 applies to a case where a foreigner is recognised as a national by the law of more than one foreign country or where for any reason it is uncertain what nationality if any is to be ascribed to a foreigner
 The section provides that in such cases the prescribed authority has power to decide of which country the foreigner is to be treated as the national and such decision shall be final
The section therefore applies to a person who is a foreigner and the question is of which foreign country he is a national
In the case of the respondent no such question arose and no decision could be or was made by any prescribed authority of such question
The learned Magistrate therefore clearly went wrong in relying on section 8 741 As regards the passport the learned Magistrate did not come to the finding that it proved the respondent to have been a Pakistani national all along
What he Al did was to think that the respondent who had earlier been an Indian national had by obtaining it disowned Indian nationality and ceased to be an Indian national
Now section 92 of the  provides that if any question arises as to whether an Indian citizen has acquired the citizenship of another country it shall be determined by such authority and in such manner as may be prescribed
Under r 30 of the rules framed under that Act the authority to decide that question is the Central Government
So the question whether the respondent an Indian citizen had acquired Pakistani citizenship cannot be decided by courts
The learned Magistrate had no jurisdiction therefore to come to the finding on the strength of the passport that the respondent an Indian citizen had acquired Pakistani citizenship
Nor was there anything before the learned Magistrate to show that the Central Government had decided that the respondent had renounced Indian citizenship and acquired that of Pakistan
The learned Magistrate thought that the fact that the Central Government had refused to extend the respondent s visa proved that it had decided that he had acquired Pakistani nationality
This view again was not warranted
There is nothing to show that the Central Government had refused to extend the respondent s visa
Even if it had that would not amount to a decision by it that the respon dent an Indian citizen had acquired subsequently Pakistani nationality for there may be such refusal when an applicant for the extension had all along been a Pakistani national
Furthermore in order that there may be a decision by the Central Government that an Indian citizen has acquired foreign nationality an enquiry as laid down in r 30 of the rules framed under the has to be made and no such enquiry had at all been made
That being so it cannot be said that the Central Government had decided that the respondent an Indian citizen had acquired the citizenship of Pakistan
742 The question whether a person is an Indian citizen or a foreigner as distinct from the question whether a person having once been an Indian citizen has renounced that citizenship and acquired a foreign nationality is not one which is within the exclusive jurisdiction of the Central Government to decide
The courts can decide it and therefore the learned Magistrate could have done so
He however did not decide that question that is find that the respondent had been a Pakistani national all along
On the evidence on the record such a finding would not have been warranted
For all these reasons we think that the conviction of the respondent by the learned Magistrate was not well founded
Coming now to the decision of the learned Sessions Judge he seems to have based himself on the reasoning that the conduct of the appellant that is the respondent before us in applying for extension of time shows that he is not a citizen of India and that he has acquired citizenship of Pakistan
If he were a citizen of India he could have raised this plea and this question could have been decided by the Central Government as envisaged by Rule 30 sub Rule I of the Rules made under the and there was no necessity to apply for extension
 Quite plainly the learned Sessions Judge was proceeding on the basis that the respondent had renounced his Indian citizenship and acquired Pakistani citizenship
As we have said earlier that is not a question which is open to a court to decide and there is no evidence to show that it has been decided by the Central Government who alone has the power to decide it
The learned Sessions Judge did not direct himself to the question which lie could decide namely whether the respondent had from the beginning been a Pakistani citizen
His decision therefore cannot also be sustained
We have examined the evidence on the record ourelves and are unable to say that a conviction can be based on it
There can be no conviction unless it can be held on the evidence that the respondent is a foreigner that is to say a person who is not an Indian 743 citizen see section 2a of the as amended by Act 11 of 1957
The evidence shows that the respondent did go to Pakistan but the only evidence with regard to that is that he went there about the end of 1954 or the beginning of 1955
This evidence also indicates that he stayed there for a short time
He was all along paying the rent for his shop in Adoni
His family bad always been there
Therefore it can be said that he had never migrated to Pakistan
Clearly a short visit to Pakistan would not amount to migrating to that country
The passport obtained by him from Pakistan would no doubt be evidence that he was a Pakistani national
As on the facts of this case he must be held to have been an Indian citizen on the promulgation of the Constitution the passport can show no more than that he renounced Indian citizenship and acquired Pakistani nationality
Such evidence would be of no use in the present case for in view of section 92 of the  a Court cannot decide whether an Indian citizen has acquired the citizenship of another country
The position then is this
The respondent has clearly discharged the onus that lay on him under section 9 of the to prove that he was not a foreigner by proving that he was born and domiciled in India prior to January 26 1950 when the Constitution came into force and thereby had become an Indian citizen under article 5a of the Constitution
He has further proved that he had never migrated to Pakistan
It has not been shown that the Central Government had made any decision with regard to him under section 9 of the that he has acquired a foreign nationality
Therefore it cannot be held by any court that the respondent who was an Indian citizen has ceased to be such and become a foreigner
That being so it must be held for the purpose of this case that the respondent was not a foreigner and no order could be made against him under section 3lc of the 
Conviction for breach of such an order by the respondent would be wholly illegal
744 Though we are upholding the decision of the High Court we wish to observe that we do not do so for the reasons mentioned by it
It is unnecessary to discuss those reasons but we would like to point out one thing namely
that the High Court seems to have been of the opinion that article 7 of the Constitution contemplates migration from India to Pakistan even after January 26 1950
We desire to make it clear that we should not be taken to have accepted or en dorsed the correctness of this interpretation of article 7
The reference in the opening words of article 7 to articles 5 and 6 taken in conjunction with the fact that both articles 5 and 6 are concerned with citizenship at the commencement of the Constitution apart from various other considerations would appear to point to the conclusion that the migration referred to in article 7 is one before January 26 1950 and that the contrary construction which the learned Judge has put upon article 7 is not justified but in the view that we have taken of the facts of this case namely that the respondent had never migrated to Pakistan we do not consider it necessary to go into this question more fully or finally pronounce upon it
In the result we dismiss the appeal
Appeal dismissed


Summary:
The respondent was born in India in 1924 and had lived there all along till about the end of 1954
He had been paying rent for his shop in India for ten years upto about 1958 and his family was and had always been in India
At the end of 1954 or the beginning of 1955 lie went to Pakistan from where he returned on January 20 1955 on a passport granted by the Pakistan Government which had a visa endorsed on it by the Indian authorities permitting him to stay in India up to April 1955
The respondent applied to the Central Government for extension of the time allowed by the visa but the records did not Show What order if any had been made on it
As the respondent had stayed beyond the time specified in the visa he was on September 3 1957 served with an order made by the Government of Andhra Pradesh under section 32C Of the  i946 requiring him to leave India
The order described him as a Pakisthan National
on his failure to comply with this order 93 738 he was prosecuted under section 14 of the 
His defence was that he was an Indian national
The trying magistrate rejected this defence and convicted him holding a that the fact that the respondent obtained a Pakistan passport proved that he had disowned Indian nationality and ceased to be an Indian national and b that by refusing to extend the time fixed by the visa the Central Government had decided that the respondent was a foreigner and under section 8 of the  such a decision was final
An appeal by the respondent was dismissed by the Sessions judge on the ground that the respondent s application for extension of the time fixed by the visa proved that he had renounced his Indian nationality and had acquired the citizenship of Pakistan
The High Court of Andhra Pradesh set aside the conviction in revision
On appeal by the State of Andhra Pradesh Held that neither the Magistrate nor the Sessions Judge was competent to come to a finding of his own that the respon dent an Indian national had disowned his nationality and acquired Pakistan nationality for under section 92 of the  that decision could only be made by the prescribed authority which under the Rules framed under the Act was the Central Government
The fact that the Central Government had refused to extend the visa did not show that it had decided under the section that the respondent had renounced his Indian nationality and acquired Pakistan citizenship
In any event in order that the Central Government might come to a decision under section 92 of the an enquiry as laid down in r 30 Of the Rules framed under the Act had to be made and no such inquiry had been made
On the facts established the respondent became an Indian citizen under article 5a of the Constitution when it came into force
He thereby discharged the onus laid on him by section 9 of the to prove that he was an Indian citizen when that was in dispute
The passport obtained by the respondent from the Pakistan Government would therefore only be evidence that the respondent had renounced Indian nationality and acquired Pakistan citizenship
Such evidence was however of no use in a court for no court could in view of section 92 of the decide whether an Indian citizen had renounced his citizenship and acquired the citizenship of a foreign country
Section 8 of the had no application to the case as it only applied where a foreigner is recognised as a national by the law of more than one foreign country or where it is uncertain what nationality is to be ascribed to a foreigner and in the present case that was not the question but the question was whether the respondent was an Indian or a foreigner
The respondent s short visit to Pakistan had not amounted to a migration to that country
Query whether article 7 of the Constitution contemplates migration from India to Pakistan after January 26 1950