minal Appeal No 167 of 1968
Appeal from the judgment and order dated January 18 1968 of the Allahabad High Court in Criminal Revision No 1482 of 1966
O P Rana for the appellant
Bashir Ahmed and section Shaukat Hussain for the respondent
The Judgment of the Court was delivered by Dua J
The State of UP has appealed to this Court on certificate of fitness granted by the Allahabad High Court from 495 that court s order dated January 18 1968 acquitting the respondent of an offence punishable under section 14 of the Foreigners Act Act No 31 of 1946
This appeal was originally heard by us on January 11  14 1971 when it was considered desirable to send for the original records of the case from the courts below and also to call for the Me relating to the inquiry held by the Central Government under section 92 of the Act No 57 of 1955 into the question of the acquisition of citizenship of Pakistan by the respondent
On July 11 1963 the respondent was arrested for over staying in India as a foreigner and on March 6 1965 he was charged by the City Magistrate Varanasi with the commission of an offence punishable under section 14 of the Foreigners Act Act No 31 of 1946
The charge reads  I D section Sharma City Magistrate Varanasi hereby charge you Rahmatullah as follows  That you being a Pakistani Citizen entered into India on 1 4 55 on Pakistani Passport No 283772 dated 15 3 55 and Indian visa No 16326 Category C dated 22 3 55 and got your extension to stay in India up to 25 5 56 after which date you are overstaying in India illegally without any passport and visa  and thereby committed an offence punishable us 14 of Foreigners Act within my cognizance and hereby I direct you to be tried on the said charge by me According to the prosecution case against the respondent as put in the Trial Court he was a Pakistani national and had on April 1 1955 entered India on a Pakistani passport dated March 15 1955 and an Indian Visa dated March 22 1955 obtained by him as a Pakistani national but even after the expiry of the permitted period he was overstaying in India without a valid passport or visa
The original visa it is not disputed expired on June 21 1955 but it was extended thrice the last extension being valid only up to May 25 1956
Thereafter the respondent went underground and has since been residing in India illegally
He was treated after several years and was arrested on July 11 1963
The respondent pleaded in defence that though he had entered India on a Pakistani passport he was not a Pakistani national
On the contrary he claimed to be an Indian citizen and therefore rightfully living in India
According to him he had been born in India of Indian parents in 1932 and was an Indian citizen under the Constitution
496 During the pendency of the present criminal proceedings an inquiry was made by the Central Government under section 92 of the read with r 30 of the Citizenship Rules 1956 and by means of an order dated November 5 1964 it was determined that the respondent had acquired citizenship of Pakistan after January 26 1950 and before March 15 1955
March 15 1955 was apparently fixed because on that date the respondent had secured his Pakistani passport
In that inquiry the respondent was given full opportunity of adducing proof in support of his plea
The respondent was informed of the determination of the Central Government on March 29 1965 in the Trial Court
The City Magistrate Varanasi trying the case came to the conclusion that the respondent had voluntarily gone to Pakistan and had stayed there for 8 or 9 months
The fact that he had obtained a Pakistani passport was in the opinion of that court an indication of his intention to have gone to that country with the object of becoming a Pakistani national
The argument that the determination in regard to the respondent s citizenship was made by the Central Government after the commencement of the present proceedings was considered by the Trial Court to be irrelevant because the determination by the Central Government was immune from challenge and whether it was made before or after the framing of the charge was immaterial
The respondent was held to be a Pakistani national and as it was not denied that he had entered India on a Pakistani passport and also that on the expiry of the period for which he had been permitted to stay in India including the extended period he had stayed on in this country without obtaining valid permit he was convicted of an offence under section 14 of the Foreigners Act
He was sentenced to rigorous imprisonment for 18 months and to pay a fine of Rs 200 and in default of payment of fine to rigorous imprisonment for a further period of three months
The Sessions Judge dismissed the respondent s appeal holding that the charge had been framed against him several months after the determination by the Central Government that he was a Pakistani national
According to that court the order of the Central Government was dated November 5 1964 and it was communicated by the Sahayak Sachiv U P to the Senior Superintendent of Police Varanasi on December 28 1964
On revision the High Court disagreed with the view of the courts below
According to the High Court the respondent was not a foreigner when he entered India though he had obtained 497 a Pakistani passport
Having not entered as a foreigner the respondent s case was held to be outside para 7 of the Foreigners Order 1948 made under section 3 of the Foreigners Act
The High Court held the respondent to be a foreigner when he was prosecuted for an offence under section 14 of the Foreigners Act
But in its opinion that fact could not attract para 7 of the Foreigners Order 1948 made under section 3 of the Foreigners Act
On this reasoning the respondent s conviction was set aside and he was acquitted
In this Court to begin with it was argued on behalf of the State that section 2a of the Foreigners Act defines a foreigner to mean a person who is not a citizen of India
If therefore the respondent is not a citizen of India then being a foreigner his prosecution and conviction under section 14 of the Foreigners Act was unassailable contended Shri Rana
The order of the High Court acquitting the respondent was therefore contrary to law he added
This submission is misconceived
The definition of the word foreigner relied upon by the counsel was substituted for the earlier one by the Foreigners Law Amendment Act 11 of 1957 with effect from January 19 1957
Quite clearly the new definition is of no assistance in determining the status of the respondent at the time of his entry into India in 1955
The word foreigner according to the definition as in force in 1955 meant a person who i is not a natural born British subject as defined in sub sections 1 and 2 of section 1 of the British Nationality and Status of Aliens Act 1914 or ii has not been granted a certificate of naturalization as a British subject under any Jaw for the time being in force in India or iii is not a citizen of India
The  having been published in the Gazette of India on December 30 1955 was also not in force at the time when the respondent entered India
We may therefore turn to the Constitution to see if the respondent was a citizen of India at the time of the commencement of the Constitution
Clause a of Article 5 clearly covers the case of the respondent who was born in the territory of India and had his domicile in this territory at the commencement of the Constitution
Being a citizen of India at the commencement of the Constitution in 1950 unless he lost his citizenship under some law between the commencement of the Constitution and his entry into India in 1955 the respondent would continue to be an Indian citizen till such entry
Even on behalf of the appellant no serious attempt was made to show that the respondent had lost his Indian citizenship in any other manner except on the basis of his having obtained a Pakistani passport and on the basis of the determination of the question of his citizenship by the Central Government on November 5 1964
Indeed after some faint argument the appellant s learned counsel based his case exclusively on the determination 32 1 section C India71 498 by the Central Government and in our opinion on the existing record rightly so
According to his submission the determination made by the Central Government under section 92 of the is final and since the respondent has been held to have acquired citizenship of Pakistan before March 15 1955 his entry into India after that date and his subsequent continued stay in this country after the expiry of the extended period on May 22 1955 would amount to an offence punishable under section 14 of the Foreigners Act
As will presently be shown the real question which arises for our decision lies in a short compass and the relevant facts essential for the decision are no longer in dispute
When the respondent entered India on April 1 1955 he was in possession of a Pakistani passport and a visa to which no objection was taken by the Indian authorities
He did not enter India clandestinely and he is not being tried for having entered India in violation of any law
Indeed his visa was admittedly extended by the appropriate authority up to May 22 1965
As he was clearly a citizen of India at the commencement of the Constitution and the question arose whether he had lost Indian citizenship thereafter the Central Government had to determine under section 9 of the the question of the acquisition of Pakistan nationality by the respondent
This Court in Government of Andhra Pradesh vs Syed Mohd Khano after referring to its earlier decision in lzhar Ahmad Khan vs Union of India1 made the following observation  Indeed it is clear that in the course of the judgement this Court has emphasised the fact that the question as to whether a person has lost his citizenship of this country and has acquired the citizenship of a foreign country has to be tried by the Central Government and it is only after the Central Government has decided the point that the State Government can deal with the person as a foreigner
It may be that if a passport from a foreign Government is obtained by a citizen and the case falls under the impugned Rule the conclusion may follow that he has acquired the citizenship of the foreign country  but that conclusion can be drawn only by the appropriate authority authorised under the Act to enquire into the question
Therefore there is no doubt that in all cases where action is proposed to be taken against persons residing in this country on the ground that they have acquired the citizenship of a foreign State 2 1962 Supp
3 section C R 235
1 1962 Supp 3 section C R 288
499 and have lost in consequence the citizenship of this country it is essential that question should be first considered by the Central Government
In dealing with the question the Central Government would undoubtedly be entitled to give effect to the impugned R 3 in Sch
III and deal with the matter in accordance with the other relevant Rules framed under the Act
The decision of the Central Government about the status of the person is the basis on which any further action can be taken against him In that case an argument was raised on the authority of lzhar Ahmad Khan s case1 that as soon as a person acquired a passport from a foreign Government his citizenship of India automatically came to an end but it was repelled
in Shuja Ud Din vs The Union of India and Another2 this pondent there was born in India in 1924 and had lived in this Country all along tiff about the end of 1954
At the end of 1954 or the beginning of 1955 he 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 this country upto April 1955
He applied to the Central Government for extension of the time allowed by the visa but there was no material to show what orders if any were made on it
The respondent having stayed in this country beyond the time specified in the visa on September 3 1957 he was served with an order under section 32c of the Foreigners Act requiring him to leave India
On his failure to comply with this order he was prosecuted under section 14 of the Foreigners Act
His defence was that he was an Indian national
The Magistrate trying him rejected his defence and convicted him holding that he had disowned Indian nationality by obtaining a Pakistan passport and that by refusing to extend the time fixed by the visa the Central Government had decided that the respondent was a foreigner under section 8 of the Foreigners Act and that such a decision was final
He was convicted by the Trial Court and the conviction was upheld by the Sessions Judge
The High Court in revision set aside his conviction
On appeal this Court held that neither the Magistrate nor the Sessions Judge was competent to come to a finding of his own that the respondent 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
The respondent in that case according to this Court had become an Indian citizen under article 5a of
the Constitution when it 1 1962 Supp
3 section C R 233 2  500 came into force and there being no detention by the Central Government that he had lost his nationality thereafter
the order of the High Court acquitting him was upheld
in Shuja Ud Din vs The Union of India and Another 1 this Court speaking through Gajendragadkar J as he then was said it is now well settled that the question as to whether a person who was a citizen of this country on January 26 1950 has lost his citizenship thereafter has to be determined under the provisions of section 9 of the No LVII of 1955
There is also no doubt that this question has to be decided by the Central Government as provided by Rule 30 of the Rules framed under the in 1956
The validity of section 9 as well as of Rule 30 has been up held by this Court in the case of Izhar Ahmad Khan and Ors
vs Union of India and Ors
It has also been held by this Court in The State of Madhya Pradesh vs Peer Mohd and Anr
Appeal No 12 of 1961 decided on Sept 28 1962 that this question has to be determined by the Central Government before a person who was a citizen of India on January 26 1950 could be deported on the ground that he has lost his citizenship rights thereafter under section 9 of the 
Unless the Central Government decides this question such a person cannot be treated as a foreigner and cannot be deported from the territories of India
 In Abdul Sattar Haji Ibrahim Patel vs The State of Gujarat2 Gajendragadkar C J speaking for a bench of five Judges approved the decisions in the cases of Izhar Ahmed Khan3 and Syed Mohd Khan4 it being emphasized that the decision of the Government of India is a condition precedent to the prosecution by the State of any person on the basis that he has lost his citizenship of India and has acquired that of a foreign country
That an inquiry under section 9 of the can only be held by the Central Government was again reaffirmed by this Court in Mohd Ayub Khan vs Commissioner of Police Madras 5
In view of these decisions it seems to us to be obvious that till the Central Government determined the question of the respondent having acquired Pakistan nationality and had thereby 1 C A No 294 of 1962 decided on Oct 30 1962
2 Cr
A No 153 of 1961 decided on Feb 171964
3 1962 Supp
3 section C R235
4 1962 SUPP
3 section C R 288
5 501 lost Indian nationality he could not be treated as a foreigner and no penal action could be taken against him on the basis of his status as a foreigner being national of Pakistan
It is not the appellant s case before us that any directions under the law governing foreigners were given to the respondent after November 5 1964 which were disobeyed entailing his prosecution and indeed it is admitted that he was not even informed of the decision of the Central Government till March 29 1965
It is also noteworthy that at the time when the Central Government determined his nationality he was being tried in this country by the criminal court after having been arrested and bailed out and he was not free to leave this country for proceeding to Pakistan
In the background of these facts it appears to us that the wide charge as framed against him was misconceived and he could not be convicted of overstaying in this country at least till he was duly found to be a Pakistani national and to have ceased to be an Indian citizen
The order of the Central Government is clearly final and it has remained unchallenged by the respondent even after he was informed of this order on March 29 1965
We have seen the proceedings of the Central Government and we find that the respondent had been given full opportunity of putting forth his case
The binding nature of that order was not and indeed it could not be questioned before us
The determination by the Central Government in this case could not have the effect of retrospectively rendering a penal offence an act which was not so at the time of its commission
The respondent even though held to be a Pakistani and therefore a foreigner before the charge was framed against him is entitled to the protection of our laws
As a result of the foregoing discussion the High Court was in our opinion right in setting aside the respondent s conviction on the charge framed
It will of course be open to the Central Government to take such suitable action against the respondent under the Foreigners Act or under any other provision of the law which may be applicable to him for the purpose of either deporting him or otherwise dealing with him as is thought fit
This appeal however must fail
YPS Appeal dismissed


Summary:
The respondent was a citizen of India at the commencement of the Constitution in 1950
He entered India on April 1 1955 with a Pakistani passport dated March 15 1955 and overstayed in India beyond the permitted period
He was arrested in 1963 and was charged with an offence under section 14 of the Foreigners Act and convicted
While the criminal proceedings were pending the Central Government under section 92 of the  read with r 30 of Citizenship Rules 1956 determined on November 5 1964 that the respondent had acquired citizenship of Pakistan after January 26 1950 and before March 15 1955
The High Court set aside the conviction
On appeal to this Court HELD 1 The respondent was not a foreigner  within the meaning of the Foreigners Act before its amendment in 1957
500 G H 2 Having been a citizen of India at the commencement of the Constitution and not being a foreigner under the Foreigners Act at the date of his entry till the Central Government determined the question of the respondent having acquired Pakistan nationality and thereby lost Indian nationality he could not be treated as a foreigner and no penal action could be taken against him
497 G 501  A B 3 The order of the Central Government dated November 5 1964 determining that the respondent was a Pakistani was final but the determination by the Central Government could not have the effect of retrospectively rendering his stay in India before that date a penal offence
It was not as if he was given any directions after November 5 1964 which were disobeyed by him entailing his prosecution
501 C E