IN THE HIGH COURT OF JUDICATURE AT PATNA CR. WJC No.735 of 2007 SYED SHAMIM AHMAD ------- Petitioner Versus THE STATE OF BIHAR & ORS ----Respondents ----------- For the petitioner: Mr. Salahuddin khan Senior Advocate and Mr.Sunil Kr.Sinha no.2, Advocate For the respondents:Mr.Narmadeshwar Jha AAG-7 Mr. Satyendra Kr.Jha, J.C. to AAG-7 ****** 12 3.9.2008 This writ petition has been filed for quashing the First Information Report of Jagdishpur (Habibpur) P.S. case no. 228/06 under sections 468, 467, 469, 471 and 420 of the Indian Penal Code and 14 of Foreigners Act and also final form submitted in the case. There is also prayer to quash the cognizance taken, if any, in the said case. According to First Information Report, the allegation is that the petitioner Syed Shamim Ahmad is a Pakistani Citizen who came to Bhagalpur on Pakistani Passport no. P.P.N.E.177652 dated 20.5.1997 for a limited period of 45 days but without obtaining necessary order from the authority concerned illegally remained in Bhagalpur for more than 2 eight years and also illegally obtained voter identity card of Election Commission, Government of India at the time of election by committing fraud and cheating. The case of the petitioner is that he had gone to Pakistan in the year 1983 on the basis of Indian Passport to meet his brothers and stayed there for some time and returned back to India after obtaining Pakistani Passport as per rules of that country and has never relinquished his Indian Citizenship. Further case is that the petitioner was born at Bhagalpur and was educated at Bhagalpur in Muslim High School and his date of birth is 4.10.1972. The petitioner was married with an Indian girl on 21.11.2004. The petitioner has also ration card which clearly shows that he is living with his parents at Bhagalpur. Petitioner’s name is mentioned in the electoral roll prepared by Election Commission of India. Petitioner has residential certificate issued by the Anchal Adhikari, Jagdishpur which also testifies the fact that he is an Indian by birth. Petitioner’s father and mother are 3 Indian by birth and have landed property in the district of Bhagalpur for which rent receipts are being issued by the State authorities. Thus it is said that the petitioner has never relinquished Indian Citizenship voluntarily and his right of Citizenship of India is continuing. Learned counsel for the petitioner submitted that the petitioner is an Indian Citizen by birth. He was educated at Bhagalpur in Muslim High School. Petitioner’s father and mother are Indian by birth and have landed property in the district of Bhagalpur. He further submitted that the petitioner in the year 1987 went to meet his brothers in Pakistan on Indian Passport and stayed there for some period and then he returned to India on Pakistani Passport as per rules and instructions imposed by that country and as such he never relinquished his Indian Citizenship. Learned counsel further submitted that during pendency of this writ application the petitioner filed an application before the competent authority through the District Magistrate and 4 Collector, Bhagalpur in prescribed form with annexures for confirmation of Indian Citizenship and under ordinary process the form and application filed by the petitioner should have been sent to the Central Government (Ministry of Home and Foreign Office) as per rule 30 of Citizenship Rules but the learned Collector, Bhagalpur has chosen to pass a rejection order as contained in annexure-j dated 7.4.2008 of the supplementary counter affidavit. Learned State counsel appearing on behalf of respondent no.3 contended that the claim of citizenship of the petitioner has been rejected by the learned District Magistrate by a speaking order dated 5.4.2008. He further contended that the petitioner is a Pakistani Citizen and has illegally lived in India and has also illegally obtained voter identity card by committing fraud and cheating upon Election Commission of India. From the papers filed by the petitioner it appears that he was born at Bhagalpur. He was also educated at Bhagalpur 5 in Muslim High School. Now as per the case of the petitioner, he went to Pakistan on Indian Passport and lived there for some period and then he returned to India on a Passport granted by the Pakistani Government as per rules of that country. Sub-section (2) of section 9 of the Citizenship Act, 1955 reads as follows: “(2) If any question arises as to whether, when or how any person has acquired the Citizenship of another country, it shall be determined by such authority, in such manner, and having regard to such rules of evidence, as may be prescribed in this behalf.” Then Rule 30 of Citizenship Rules framed under the Citizenship Act provides that such a question shall be determined by the Central Government, who for that purpose shall have regard to the rules of evidence specified in Schedule-III to the Rules. From bare reading of section 9 of Citizenship Act,1955 it is clear that it would cover all cases where an Indian Citizen has acquired foreign nationality between January 26, 1950 and its commencement “or where he acquires such nationality after its 6 commencement”. So if a question arises as to whether, when or how an Indian Citizen has acquired citizenship of another country that has to be determined by the Central Government by virtue of provisions of sub- section (2) of section 9 of the Citizenship Act read with Rule 30 of Citizenship Rules. Thus there is no doubt that this question has to be decided by the Central Government as per Rule 30 of the Citizenship Rules and unless Central Government decides this question that such a person cannot be termed as foreigner. The Supreme Court in the case of State of U.P. Vs Rahmatulla (AIR 1971 Supreme Court 1382) has observed that till the Central Government determined the question of respondent having acquired Pakistani nationality and had thereby lost Indian nationality he could not be treated as foreigner and no penal action could be taken against him on the basis of status as a foreigner, being a national of Pakistan. In view of above position of law, the prosecution of the petitioner at present 7 appears to be premature. He cannot be convicted for overstaying in the country till he is duly found to be a Pakistani national and to have ceased to be an Indian national. The order of the Central Government in the matter shall be final. In the facts and Circumstances of the case, the prosecution of the petitioner is stayed till the decision of the Central Government regarding claim of citizenship of the petitioner. After decision of the Central Government is communicated to the court below, the Court in seisin of the matter shall proceed in accordance with law. The Collector, Bhagalpur by virtue of Rule 30 of the Citizenship Rules is directed to forward the application of the petitioner for determining the question arising under sub- section (2) of section 9 of the Citizenship Act to the Central Government. With the above direction, this application stands disposed of. Al (M.Saran,J)