Case: Fateh Mohd, Son Of Nathu Vs. Delhi Administration

born at Allahabad at "the time when it was His Majestys Dominion. He had left India for Pakistan but returned on a Passport granted by the Government of Pakistan on May 16, 1958. He had a visa endorsed on his passport by the Indian authorities permitting him to stay in India for three months and this permission was later extended up to November, 1953. Under Paragraph 7 of the Foreigners Order 1948 issued under S. 3 of the Foreigners Act, every foreigner entering India on the authority of a visa shall obtain from the appropriate authority a permit indicating the period during which he is authorised to remain in India and shall, unless that period is extended, depart from India before its expiry. As the appellant stayed after November 15, 1953, without permission given under that order, he was prosecuted for breach of the said order. It would be seen from the said facts that the appellant therein was prosecuted for an offence committed by him before the Amending Act of 1957 came into force on January 19, 1957. This court on the said facts held that the appellant therein could not be convicted for the breach of Paragraph 7 of the Foreigners Order as he not being a foreigner at that time could not have committed a breach thereof, but clearly this decision cannot apply to an offense committed by a person who falls within the amended definition of foreigner, after the Amending Act came into force. Indeed this court in express terms let open that question at p. 1523 (of AIR 1961 SC 1522)."No question as to the effect of the amended definition on the appellants status fell for our decision in this case, for we were only concerned with his status in 1953. We would also point out that no order appears to have been made concerning the appellant under S.3(2)(c) and we are not to be understood as deciding any question as to whether such an order could or could not have been made against the appellant."What has been left open in that decision is to be considered in the present case. The appellant who is a foreigner under the amended definition has committed a breach of an order served on him after the amended definition of a foreigner came to hold the field. The appellant therefore in disobeying the directions given to him by the Delhi Administration has committed an offense within the meaning of S. 14 of the Act.9. Even so it is contended that the appellant is an Indian citizen and therefore is not a foreigner within the meaning of the amended definition of a foreigner under the Act. Some of the relevant provisions of the Constitution and the Foreigners Act 31 of 1946, may conveniently be extracted. Article 5 of the Constitution says :"At the commencement of this Constitution, every person who has his domicile in the territory of India and(a) who was born in the territory of India; or(b) either of whose parents was born in the territory of India; or(c) who has been ordinarily resident in the territory of India for not less than five years immediately preceding such commencement, shall be a citizen of India."Section 9 of the Foreigners Act 1946, is in these terms :-"If in any case not falling under S. 8 any question arises with reference to this Act or any order made or direction given thereunder whether any person is or is not a foreigner .....the onus of proving that such person is not a foreigner.......shall, notwithstanding anything contained in the Indian Evidence Act 1872 (1 of 1872) lie upon such person."10.Under Art. 5(a) of the Constitution the appellant cannot be a citizen of India unless he was born in the territory of India and had his domicile in the territory of India at the commencement of the Constitution. In this case the appellant claimed to be a citizen under Art. 5(a), of the Constitution. By reason of S. 9 of the Foreigners Act whenever a question arises whether a person is or is not a foreigner, the onus of proving that he is not a foreigner lies upon him. The burden is therefore upon the appellant to establish that he is a citizen of India in the manner claimed by him and therefore he is not a foreigner. This court in Union of India v. Gyaus Mohammad, (1962) 1 SCR 744 : (AIR 1961 SC 1526 ), accepted this legal position and laid down at p. 748 (of SCR): (at p. 1527 of AIR), thus :"It does not seems to have realised that the burden of proving that he was not foreigner, was on the respondent and appears to have placed that burden on the Union. This was a wholly wrong approach to the question."Rightly throwing the onus on the appellant the Magistrate considered the evidence and came to the conclusion that the appellant had failed to prove that he was a citizen of India and therefore not a foreigner. The learned Additional Sessions Judge after noticing that the onus was on the appellant considered the evidence, both oral and documentary and came to the conclusion that the appellant had failed to discharge the onus. It cannot be and indeed is not suggested that the said finding is vitiated by any error of law, but it is contended that the Additional Sessions Judge was not justified in ignoring the evidence of respectable witnesses who spoke to the fact that the appellant was born in India and continued to reside in India at the date of the commencement of the Constitution and thereafter. The learned Additional Sessions Judge as a Judge of fact considered the evidence in the light of probabilities and the documentary evidence and rejected the same as unworthy of credence. The High Court in revision refused to interfere with that finding. We do not see any permissible ground for interference with that finding in an appeal under Art. 136 of the Constitution.

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

Explanation:
0[ds]There is a fallacy underlying in this argument. The appellant was certainly not a foreigner when he entered India under the definition of a foreigner as it then stood. In view of the amendment of the definition he became a foreigner after January 19, 1957. He could not be convicted for an offence for an act done by him before the amendment on the basis he was a foreigner; for instance an act done by him such as his entry into India or his non-compliance with the conditions of an order issued on him before the amendment on the foot that he was a foreigner. But the offense for which he is now charged is an act done by him in derogation of an order issued to him after the amendment. On the dale when the Delhi Administration served on him the notice imposing certain restrictions and directing him to comply with certain conditions for his stay he was a foreigner within the meaning of amended definition. On the basis of existing law he committed an offence and it will be futile for him to contend that he was not a foreigner under the originalhas been left open in that decision is to be considered in the present case. The appellant who is a foreigner under the amended definition has committed a breach of an order served on him after the amended definition of a foreigner came to hold the field. The appellant therefore in disobeying the directions given to him by the Delhi Administration has committed an offense within the meaning of S. 14 of the Act.9. Even so it is contended that the appellant is an Indian citizen and therefore is not a foreigner within the meaning of the amended definition of a foreigner under thethrowing the onus on the appellant the Magistrate considered the evidence and came to the conclusion that the appellant had failed to prove that he was a citizen of India and therefore not a foreigner. The learned Additional Sessions Judge after noticing that the onus was on the appellant considered the evidence, both oral and documentary and came to the conclusion that the appellant had failed to discharge the onus. It cannot be and indeed is not suggested that the said finding is vitiated by any error of law, but it is contended that the Additional Sessions Judge was not justified in ignoring the evidence of respectable witnesses who spoke to the fact that the appellant was born in India and continued to reside in India at the date of the commencement of the Constitution and thereafter. The learned Additional Sessions Judge as a Judge of fact considered the evidence in the light of probabilities and the documentary evidence and rejected the same as unworthy of credence. The High Court in revision refused to interfere with that finding. We do not see any permissible ground for interference with that finding in an appeal under Art. 136 of the