minal Appeal No 176 of 1969
Appeal from the Judgment and order dated November 12 1968 of the Assam and Nagaland High Court in Criminal Revission No 73 of 1968
K P Gupta for the appellant V A Setyid Mahmud and section K Nandy for the respondent
The Judgment of the Court was delivered by Shelat J
Prior to August 15 1947 the respondent was in the service of the Government of Assam as an unarmed Police Constable bearing No 407 serial No 29
On partition he opted for service in Pakistan
Consequent on his exercising such option the Assam Government passed an order No 2155 dated December 31 1947 releasing him  from service and directing him to report to the Inspector General of Police Dacca for service there
The respondent thereafter went to the then East Pakistan and joined Pakistan Government service as a peon in the sub registrar s office at Fenchugani District Sylhet
He entered India on December 23 1953 on the strength of a Pakistani passport dated September 10 1953 and an Indian visa dated November 11 1953
He appears to have returnedto Pakistan on April 25 1954
 On January 27 1955 he again applied for and obtained an Indian visa which was valid upto January 26 1955
On the strength of that visa he entered India on April 4 1955
Instead of returning to Pakistan he overstayed beyond January 26 1955 until he was detected on October 9 1964 in the village Niargram Salchar Sub Division in the house of one Tozamul Ali Majumdar
He had at that time no permit as required by cl 7 of the Foreigners Order 1948 as amended in 1959
He was consequently arrested and prosecuted under sec
14 of the read with cl 7 of the Foreigners Order 1948
The Additional District Magistrate Silchar convicted him under cl 7 of the Foreigners Order read with section 14 of the and sentenced him to rigorous imprisonment for a period of six months and directed that he should to deported from India after he had served out the sentence
On appeal by the respondent against the said order of conviction and sentence the Sessions Judge Silchar upheld the said order of conviction and sentence
In the revision application filed by him in the High Court of Assam and Nagaland the High Court relying pip Fidea Hussain vs UP1 reversed the said order of conviction and sentence and 1  687 accepting the revision acquitted him
The reasoning adopted by the High Court was that as in the case of Fida Hussain1 the respondent was a natural born British subject that being so he was at the date of his entry in India in April 1955 a citizen of India under article 5 of the Constitution and that he was governed by the definition of a foreigner in the before that Act was amended in 1957
Before the said amendment a foreigner as defined by section 2a meant a person who i is not a natural born British subject as defined in sub sections 1 and 2 of sec
I 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 law for the time being in force in India or iii is not a citizen of India
The High Court felt that the respondent fell under cl
i of the said definition and therefore was not a foreigner when he entered India in April 1955 ie before the definition was amended in 1957 and was not therefore  required to obtain a permit under cl 7 of the Foreigners Order 1948
According to the High Court if the amended definition applied to the respondent it would be the Central Government and not a court of law which could under the be the appropriate authority to deal with such questions
In our view the reasoning adopted by the High Court of which the basis was the decision in Fida Hussain s case1 was not valid as the High Court omitted to take into account the fact of the respondent having left India for Pakistan in August 1947 after he has opted for service in Pakistan
The defence of the respondent was that he was born in India that he owned a house and lands in India and was therefore a citizen of India within the meaning of article 5 of the Constitution
There is however the fact established by the record in this case that in 1947 he opted for Pakistani service and that he left India for Pakistan where he obtained service as a peon and that he lived there from 1947 to 1953 when he came to India on a short visit on the strength of a Pakistani passport and a visa and then returned to Pakistan
Under article 7 notwithstanding anything in article 5 a person who has after the first day of March 1947 migrated from the territory of India to the territory included in Pakistan shall not be deemed to be a citizen of India
If article 7 applied to this case 1  688 the respondent would not be deemed to be a citizen of India notwithstanding his complying with the conditions of article 5
It is quite clear from HP vs Pear Mohammad1 that it would be article 7 and not the which would apply to a case where a person has migrated to Pakistan between March 1 1947 and January 26 1950 when the Constitution came into force
If article 7 were to apply it is clear that the court and not the Central Government or its delegate which would have jurisdiction to deal with the question whether the person concerned is a foreigner to be dealt with under the 
The crucial point in the case therefore was whether the respondent had migrated to Pakistan between March 1 1947 and January 26 1950
If he did then notwithstanding his complying with the requirements of article 5 his case would fall under article 7 and he would be deemed not to be a citizen even on the date of his entry in India on April 4 1955
What then is the connotation of the word migrated  within the meaning of article 7 in Kulathil Mammu vs Kerala1 this Court interpreted article 7 and held that the word migrated  was capable of two meanings
In its narrower connotation it meant going from one place to another with the intention of residing permanently in the latter place in its wider connotation it simply meant going from one place to another whether or not with the intention of permanent residence in the latter place
in article 7 the word was used in its wider sense though it did not take in movement which was in voluntary or for a specific purpose and for a short and limited period
Considering the facts of the present case viz the option exercised by the respondent for Pakistan service his having secured release from Indian service as a constable his going to Pakistan and obtaining service there as a peon in the sub registrar s office his staying there thereafter for a long period his obtaining Pakistani passport and visas declaring therein that he had acquired Pakistani citizenship and domicile there can be no doubt that he had gone to Pakistan permanently
His movement to Pakistan thus was neither involuntary nor for a short or limited period but was clearly with the definite intention of having a permanent place of abode there
His case thus fell within article 7 and therefore on his entry in India on April 4 1955 he was a person who wag deemed not to be a citizen of India
In Fida Hussain vs UP 3 the question of the applicability of article 7 did not arise and was not considered presumably because it was not contended that Fida Hussain had migrated to the territory which fell within Pakistan between March 1 1947 and January 26 1950
The Court therefore considered only cl
1 of section 21 of the Foreigners Act 1945 and not its cl
3 as it 1 1963 Supp 1 SCR 429 3  2  689 stood before its amendment in 1957
It appears that the only date available there was the date of his entry in 1953 when the unmended definition prevailed
It could not therefore be said there that he had migrated from India between March 1 1947 and January 26 1950 and that therefore he would be deemed not to be a citizen of India under article 7
In our view the High Court could not have relied on Fida Hussain s case supra for its conclusion that the respondent was not a foreigner in April 1955 and that therefore Cl 7 of the Foreigners  Order could not apply to him
Cl 7 of the Foreigners  Order 1948 by its sub cl
1 requires every foreigner who enters India on the authority of a visa to obtain a permit from the relevant authority indicating the period during which he is authorised to remain in India
The visa obtained by the respondent permitted him to stay in India till January 26 1956
If he wanted to stay beyond that period it was incumbent on him as provided by sub cl
3 of cl 7 to obtain from the relevant authority thereunder an extension of the period mentioned in the visa
In the absence of such an extension he was bound to depart from India on January 26 1956
Admittedly he did not but on the contrary continued to remain in India until he was detected in 1964
Dr Mahmood however relied on the Registration of Foreigners Exemption Order 1957
But whether the respon dent was exempted under that order or not is entirely irrelevant for the purposes of cl 7 of the Foreigners Order 1948 whose purpose clearly is to see that a foreigner entering India under a visa does not overstay beyond the period for which the visa permits him to stay in this country
By overstaying here without the required extension the respondent clearly violated the provisions of cl
71 and 3 of the Foreigners  Order 1948 in view of our conclusion that he was a person who was deemed not to be a citizen of this country and therefore a foreigner even under the definition of a foreigner in sec
2 of the Foreigners Act before it was amended in 1957
The decision in State vs Ibrahim Nabiji1 referred to by counsel also does not assist as it did not have to deal with the point arising in the present appeal that is with regard to a person who notwithstanding article 5 is to be deemed not to be a citizen under article 7 and therefore a foreigner within the meaning of sec
2a of the Foreigners Act as it stood in 1955
The State vs Akub 2  another decision relied on by Dr Mahmood merely laid down that persons who are sought to be brought within the scope and ambit of cl 7 of the Foreigners  Order 1948 are 1 AIR 1959
2 AIR 1961 All
690 persons who are
not citizens of India and that clause did not apply to those who were not foreigners at the date of their entry although they may become foreigners after their entry by reason of the amendment of the definition in
This decision again cannot assist the respondent in view of our concluSion with regard to article 7 by reason of which the respondent even at the date of his entry in 1955 was deemed not to be a citizen of India
In our view the respondent was a foreigner when he entered India in April 1955 as the definition of foreigner then stood and by overstaying beyond the period permissible under the visa on the strength of which he had entered India he clearly committed breach of cl 7 of the Foreigners  Order 1948 and was liable to be punished under section 14 of the 
He was therefore rightly convicted and sentenced by the Trial Magistrate
The High Court in our view erred in setting aside that order of conviction and sentence
The appeal by the State is therefore allowed and the order of the Trial Court is restored
SC Appeal allowed


Summary:
Prior to 1947 the respondent was in the service of the Government of Assam as an unarmed Police constable and on partition he opted for service Pakistan
The respondent went to the then East Pakistan and joined Pakistan Government service as a peon
He entered India in 1953 on the strength of a Pakistani passport but returned to Pakistan in 1954
Again in 1955 he obtained an Indian visa which was valid upto January 26 1955
On the strength of that visa he entered India but instead of returning to Pakistan he over stayed until he was detected and arrested
He was then prosecuted under section 14 of the read with Clause 7 of the Foreigners Order 1948
The Additional District Magistrate Convicted and sentenced him and the Sessions Judge also upheld the said order of conviction and sentence
In a revision application the High Court relying on Fida Hussain vs UP   reversed the said order of conviction and sentence and acquitted him on the ground that he was not a foreigner  under section 2a of the  but was a citizen of India under article 5 of the Constitution when he entered India in 1955 before the said definition was amended in 1957
Allowing the appeal Held 1 The respondent was a foreigner when he entered India in 1955 as the definition of foreigner  then stood and by overstaying beyond the period permissible under the visa he clearly committed breach of Clause 7 of the Foreigners Order 1948 and was liable to be convicted under section 14 of the 
690B C The crucial point in the present case was whether the Respondent had migrated to Pakistan between 1947 and 1950
If he did then notwithstanding his complying with the requirement of article 5 his case would fall under article 7 and he would be deemed not to be a citizen even on the date of his entry in India in 1955
Considering the facts of the present case viz the option exercised by the respondent for Pakistan service his having secured release from Indian service as a constable his going to Pakistan and obtaining service there as a peon his staying there for a long period his obtaining Pakistani passport and visas declaring therein that he had acquired Pakistani citizenship and domicile etc there could be no doubt that he had gone to Pakistan permanently
His case thus fell within article 7 and therefore at his entry in India in 1955 he was a person who was deemed not to be a citizen of India
688C G H P vs Peer Mohammad  Kulathil Mammu vs Kerala   State vs Ibrahim Nabiji AIR 1959 Bom
526 and State vs Akub AIR 1961 All 428 referred to 686