Case: State Of Assam Vs. Jilkadar Ali

= (AIR 1966 SC 1614 ) 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 involuntary 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-registrars 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 was deemed not to be a citizen of India. 8. In (1962) 1 SCR 776 = (AIR 1961 SC 1522 ) the question of the applicability of Article 7 did not arise and was not considered presumably because it was not contended that Fida Hussian had migrated to the territory which fell within Pakistan between March 1, 1947 and January 26, 1950. The Court, therefore, considered only Clause (1) of Section 2 (1) of the Foreigners Act, 1946 and not its Cl.(3) as it stood before its amendment in 1957. It appears that the only date available there was the date of his entry in 1953, when the unamended definition prevailed. It could not, therefore, be said 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 Hussains case, (1962) 1 SCR 776 = (AIR 1961 SC 1522 ) 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. 9. Clause 7 of the Foreigners Order 1948 by its sub-clause (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-clause (3) of Clause 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. 10. Dr. Mahmood, however, relied on the Registration of Foreigners (Exemption) Order, 1957. But whether the respondent was exempted under that order or not is entirely irrelevant for the purposes of Clause 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 Clause 7 (1) 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 foreigner in S.2 of the Foreigners Act before it was amended in 1957. 11. The decision in State v. Ibrahim Nabiji, AIR 1959 Bom 526 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 Section 2 (a) of the Foreigners Act as it stood in 1955. The State v. Yakub, AIR 1961 All 428 another decision relied on by Dr. Mahmood, merely laid down that persons who are sought to be brought within the scope and ambit of Clause 7 of the Foreigners Order, 1948 are persons who are not citizens of India, and that 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 1957. 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. 12. 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 Clause 7 of the Foreigners Order, 1946 and was liable to be punished under Section 14 of the Foreigners Act, 1946. 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.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]11. The decision in State v. Ibrahim Nabiji, AIR 1959 Bom 526 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 Section 2 (a) of the Foreigners Act as it stood in 1955. The State v. Yakub, AIR 1961 All 428   another decision relied on by Dr. Mahmood, merely laid down that persons who are sought to be brought within the scope and ambit of Clause 7 of the Foreigners Order, 1948 are persons who are not citizens of India, and that 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 1957. 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 India12. 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 Clause 7 of the Foreigners Order, 1946 and was liable to be punished under Section 14 ofthe Foreigners Act, 1946. 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.