Case ID: 3183

Judgment:
minal Appeal No. 164 of 1970. Appeal by special leave from the Judgment and order dated the 3rd/ 4th December	 1969 of the Gujarat High Court in Criminal Appeal No. 295 of 1966. 573 R. H. Dhebar and section P. Nayar	 for the appellant. A. section Qureshi	 Vimal Dave and Kailash Mehta for the respondent. The Judgment of the Court was delivered by BEG	 J. This is an appeal	 by special leave	 against the acquittal of the appellant	 from a charge framed on 21 9 1967 as follows: "That you on or about the 31st day of March 1967 at about 9.30 p.m. were found in State Transport Corporation Workshop at Naroda in Ahmedabad	 and you are a foreigner and you had come from Pakistan and you had been permitted to stay in India till 20th September	 1958	 by Assistant Secretary to the Government of Bombay and did not depart from India before expiring of that permit issued to you by No. 19904 dated 6 12 1967 before the date 20th September 1958 and remained in India and thereby you contravened the previsions of clause 7(iii) of Foreigners Order 1948 and thereby committed an offence punishab le under Section 14 of and within my cognizance". The above mentioned charge was supported by the statement of Mahmadmiya	 P. W. 2	 Sub Inspector	 Special Emergency Branch	 Ahmedabad	 showing that the appellant was working in Baroda Central State Transport Workshop when he was arrested as a consequence of the information that he was a Pakistani national who had come to India in 1955 on a Pakistani passport. The accused had produced his Pakistani passport (exhibit 11) dated 8th September	 1955. The prosecution had also relied upon an application for a visa made by the accused to the High Commissioner for India in Pakistan on 10th October	 1955	 in which he had	 inter alia	 stated that he had migrated from India to Pakistan in 1950. Undoubtedly	 the prosecution was handicapped in producing evidence to show when and how and with what intention the appellant had gone to Pakistan. It could only show how and when and on what passport he returned to this country. The accused respondent had produced credible evidence to prove: that	 he was born at Dhandhuka in the State of Gujarat on 15th May	 1936; that	 he was living at Dhandhuka and attendee school there until 1952 when he moved to Ahmedabad with his father; and	 that he had gone to Pakistan in a state of anger while he was a minor	 after a quarrel with his father who had driven him out of his house. The respondent denied that he had the intention of settling down in Pakistan. He asserted that within six months of his arrival in Pakistan he regretted having left India and tried to come back to his home. He alleged that	 as he was unable to come home without a Pakistani passport	 he had to apply for and get one. The respondent asserted that he was an Indian citizen when the Constitution came into force on 26th January	 1950	 and that he had continued to be an Indian citizen thereafter as he had never migrated to Pakistan. His explanations about 1 M602Sup. CI/74 574 the passport and the visa application implied that he had obtained the passport by making false declarations and that the statement in the visa application	 that he bad migrated to Pakistan in 1950	 was one of those untrue declarations which had been made only to obtain a passPort. Probably lie had to show under the law in Pakistan that he had settled down in Pakistan and become a Pakistani national before obtaining a Pakistani passport. The judicial Magistrate had acquitted the respondent after examining the cases set up by the two sides and holding that the respondent had proved that he was an Indian citizen who had never	 in fact migrated to Pakistan. In an appeal against the acquittal the High Court of Gujarat had upheld the acquittal and confirmed the finding that the appellant was an Indian citizen when the Constitution came into force on 26th January	 1950. It had also held that the appellant was a minor when he visited Pakistan. It had found it unnecessary to record a finding en the question whether the appellant 's visit to Pakistan could be held to be one made under compulsion or for a specific purpose so as to come within the class of those exceptional cases mentioned in Kulathil Mammu. vs The State of Kerala (1) in which a "migration" would not take place even if the wider test of the term migration were adopted. That wider test would apply to those who had gone to Pakistan in the period between 1st March	 1947	 and the commencement of the Constitution	 It has to be remembered that Article 7 of the Constitution was held	 in Kulathil Mammut 's case (supra)	 to contain an exception to the operation of Article 5 of the Constitution for conferring citizenship of India on persons who	 at the commencement of the Constitution	 had satisfied the test of Indian domicile. The general principle laid down by Article 5 was that citizenship followed domicile at the commencement of the Constitution. But. the "migration" as contemplated by Article 7 was held	 in Kulathil Mammu 's case (supra)	 to have a wider meaning than change of domicile. Hence	 the view of this Court in Smt. Shanno Devi vs Managin Sain (2) was overruled. It has	 however	 to be remembered that in Kulathil Mammu 's case (supra)	 where the alleged migrant	 who was also a minor at the time of the alleged migration	 had gone to Karachi in 1948 which was before the commencement of the Constitution. in the case before us	 the finding of the Trial Court as well as the High Court	 on the evidence before them was that the appellant had. as he asserted	 gone to Pakistan in 1953 54 which was after the commencement of the Constitution. Hence	 the case of the respondent could not fall within the classes to which Article 7 was especially intended to apply. Article 7 had necessarily to be read with Articles 5 and 6 of the Constitution and not in isolation. 'The High Court had come to the conclusion that as the only case set up by the prosecution was that the respondent had migrated before the 26th January. 1950	 it need not consider and decide the question (1) ; (2) ; 575 whether he had gone to Pakistan after 26th January	 1950	 and thus had voluntarily acquired Pakistani nationality and lost Indian citizenship. If	 as it rightly held	 it had been proved that the respondent went to Pakistan after 26th January	 1950	 Article 5 of the Constitution would still operate in his favour. The High Court rightly pointed out that	 as the respondent was an Indian citizen on the date of the commencement of the Constitution	 entitled to the benefit of article 5 of the Constitution	 the further question whether he had lost Indian citizenship after that date or not	 could only be decided by the Central Government as laid down in section 9 of the Indian . It acquitted the respondent because it thought that the prosecution had not proved the only case set up by it. We have	 therefore	 to examine the charge framed against the respondent so as to determine whether the view of the High Court that the only question which need be considered by it was whether the respondent was an Indian citizen on 26th January	 1950	 was correct. We find	 from the charge set out above	 that the prosecution case was not confined to the determination of the citizenship of the respondent at the time of the commencement of the Constitution. We also find that the respondent had himself raised the question whether	 on the facts set up by him	 the prosecution could proceed at all in view of section 9 of the . The Trial Court had observed "The lawyer of the accused argued that under Section 9 of the the question whether any citizen of India had any time between the 26th day of January	 1950 and the commencement of the acquired the citizenship of another country was to be determined by the Central Government. A court should not decide whether an Indian citizen had acquired the citizenship of another country. The police prosecutor argued that as the accused had gone to Pakistan and he obtained Pakistani Passport the accused must be held to be national of Pakistan and so a citizen of Pakistan and so is foreigner in India and so the accused must be convicted of the offence section 14 of the Foreigners ' Act read with clause 7(3)	 rule (iii) of Foreigners ' Order 1948. The Court had jurisdiction to decide whether the accused is a foreigner. if the accused wanted to get it decided that he is yet citizen of India	 the accused should apply to the Central Government and get decision under section 9(2) of the . The clause (3) of Schedule III of the Citizenship Rules 1956 provides that the fact that a citizen of India has obtained on any date a passport from the	 Government of any other country shall be conclusive proof of his having voluntarily acquired the citizenship of the country before that date. As this accused has come from Pakistan to India	 the Police Prosecutor argued	 the accused should be convicted of the offence section 14 of Foreigners ' Act read with clause 7(3) (iii) of Foreigner 's order". 576 We also find from the grounds of appeal against the acquittal of the	 respondent	 the appellant 's application for certificate of fitness for appeal to this Court under Article 134 of the Constitution	 and from the special leave petition under Article 136 of the Constitution in this Court	 that the prosecution had been inviting a decision on the question whether an order of acquittal could be passed without deciding a question which fell within the purview of Section 9 of the Indian . It was not proper for the prosecuting authorities to have proceeded with the case against the respondent	 when	 upon the facts set up by the respondent	 it became clear that the respondent could not be prosecuted or convicted without a determination under Section 9 of the 	 that he had voluntarily acquired the citizenship of Pakistan between 26th January	 1950	 and the commencement of the on 30th December	 1955. This Court has re peatedly laid down that if such a question arises in the course of a trial	 it must be left for decision by the appropriate authorities. It may be that the rules framed by the Central Government under Section 30	 sub. s (2) of the Citizenship Rules	 under Section 18 of the 	 had provided that the passport shall be conclusive proof that its holder has acquired the citizenship of the country whose passport he holds. We	 however	 do not know whether the Central Government has modified such a rule. When the validity of that rule came up for consideration before a Bench of seven judges of this Court	 an assurance was given on behalf of the Central Government that a suitable modi fication of the relevant rule would be made. However	 that question is not under consideration before us now. All we need consider here is whether the acquittal of the respondent was	 in the circumstances disclosed above	 justified. in view of Section 9(2) of the 	 which has been subject matter of several decisions of this Court (See : State of Andhra Pradesh vs Abdul Khader (1); Abdul Sattar vs State of Gujarat (2): and Akbar Khan vs Union of India (3)	 the question whether a person voluntarily acquired the citizenship of Pakistan during the specified period	 could 'only be determined by the Central Government. In Akbar Khan 's case (Supra) it was observed by this. Court: (at page 782) "If it was found that the appellants had been on January 26	 1950	 Indian citizens	 then only the question whether they had renounced that citizenship and acquired a foreign citizenship would arise. That question the Courts cannot decide. The proper thing for the court would then have been to stay the suit till the Central Government decided the question whether the appellants had renounced their Indian citizenship and acquired a foreign citizenship and then dispose of the rest of the suit in such manner as the decision of the Central Government may justify ' (1) ; (2) A.I.R. [1965] S.C. 810 (3) ; 577 On principle it does not matter whether the question which can only be determined by the Central Government under Section 9 of the arises in a civil suit or in a criminal prosecution. If the real question which arises for determination is whether a person	 who was an Indian citizen when the Constitution came into force	 had acquired the citizenship of another country or not during the specified period	 the proper thing to do for a Court where the question arises is to refuse to adjudicate on that question. In the case before us it appears that the issue was raised but not decided either in the Trial Court or in the High Court. Indeed	 the judgment of the High Court shows that probably for this very reason the prosecution had tried to obtain the conviction of the respondent on the ground that he had acquired Pakistani citizenship before the commencement of the Constitution. That question had been rightly decided against the appellant. on that short ground the acquittal of the appellant could have been upheld if the prosecution case was confined to that question. But	 after having examined the charge framed	 the cases set up by the two sides	 the contentions advanced in the Trial Court	 the grounds of appeal to the High Court	 and those given in the special leave petition in this Court	 we think that a question of Jurisdiction of the criminal courts to record either a conviction or acquittal in the case of the respondent had properly arisen. Indeed	 the real and decisive question to be considered and decided was not whether the respondent possessed Indian nationality and citizenship on 26th January	 1950	 but whether he had lost that nationality at the time when he entered this country on a Pakistani passport. The respondent has been charged for overstaying contrary to the terms of the permit issued on 6th December	 1957	 by which he was allowed to stay until 20th December	 1958. Therefore	 it was clear that the decisive question which the Courts should have considered was whether	 at the time when permission was given	 and when the alleged overstay	 contrary to the provisions of clause 7(iii) of the Foreigners ' Order	 1958	 took place	 the respondent was a foreigner. Without a decision of an appropriate authority on that question neither an acquittal nor a conviction could be recorded. As no finding can be given by criminal or civil Courts	 in a case in which an issue triable exclusively by the Central Government has properly arisen	 the question of burden of proof	 dealt with in Section 9 of the 	 is immaterial. However	 in view of the erroneous procedure adopted on behalf of the State in pressing for a conviction when it was clear that the charge could not succeed at all without obtaining a decision from the appropriate authority	 we think that the correct order to pass in this case is 578 not just to stay further proceedings after quashing the acquittal so as to await the decision of the appropriate authority but to quash the charge itself so that the accused may be discharged. This would leave the State free to prosecute the respondent if and when a decision is obtained against him from the appropriate authority in accordance with the law. That authority will no doubt consider all the relevant facts	 including the total period of the respondent 's stay in this country as compared with the short period of his stay in Pakistan and the circumstances in which the respondent alleges having obtained a Pakistani passport and made a false statement in the visa application relied upon by the prosecution. The result is that we allow this appeal and set aside the acquittal of the respondent. We also quash the charge framed against the respondent and order that he be discharged. S.B.W. Appeal allowed.

Summary:
The respondent was prosecuted under clause 7(iii) of the Foreigner 's Order	 1958 read with Sec. 14 of the for over staying in India after the expiration of the permit. The respondent had entered India on a Pakistani passport. At the trial	 the respondent produced evidence to show that he was a citizen of India when the Constitution came into force on 26 1 1950 and never migrated to Pakistan to obtain the citizenship of that country. He further stated that he had to obtain the Pakistani passport against was volition. The respondent further urged that without the decision of the Central Government u/s 9(2) of the as to whether he has acquired Pakistani citizenship or not	 the prosecution under the was incompetent. The trial Magistrate acquitted the respondent	 holding that he had proved that he was an Indian citizen who never migrated to Pakistan. The High Court upheld the acquittal as it thought that the prosecution had not proved the only case set up by it namely that the res pondent was not an Indian citizen on 26 1 1950. Quashing the charge and setting aside the acquittal	 HELD : (1) The real and decisive question to be considered and decided was not whether the respondent possessed Indian nationality and citizenship on 26 1 1950 but whether he had lost that nationality at the time when he entered this country on Pakistani passport. Without a decision of the Central Government under section 9(2) of the on that question	 the Criminal Court had no jurisdiction to acquit or convict a person. (II) After having examined the charge framed	 the cases set up by the two sides	 the contentions advanced in the trial court	 the grounds of appeal of the High Court and those in the special leave petition	 we think that the question regarding acquisition of foreign citizenship by the respondent was the decisive question. The respondent had himself raised the plea although he gave an impression that the prosecution was inviting a decision on the legality of the order of acquittal without obtaining a prior decision of the Central Government under Sec. 9(2) of the . It was not proper for the prosecuting authorities to have proceeded with a case without the determination of the said question under sec. 9(2) of the . [577 D] (III) In view. of the erroneous procedure adopted on behalf of the State in pressing for a conviction without obtaining a decision from the appropriate authority	 quashing of the charge itself is the correct order. This would leave the State free to follow the proper procedure under law regarding the acquisition of foreign citizenship by the respondent and then to prosecute the respondent. (577 H) State of Andhra Pradesh vs Abdul Khader ; 	 Abdul Sattar vs State of Gujarat A.I.R. 1965 section C. 810 and Akbarkhan vs Union of India ; 	 followed. Kulathilmammu vs State of Kerala ; 	 referred to.