Case ID: 3112

Judgment:
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 returned	to 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 U.P.(1)	 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 Hussain(1) 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 2(a) 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 (i.e.	 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 case(1) 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 H.P. vs Pear Mohammad(1) 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 Kerala(1)	 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 U.P. (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 2(1) of the Foreigners Act	 1945 and not its cl. (3) as it (1) [1963] Supp. 1 S.C.R. 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. 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 a foreigner in sec. 2 of	 the Foreigners Act before it was amended in 1957. The decision in State vs Ibrahim Nabiji(1) 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. 2(a) 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) A.I.R. 1959. (2) A.I.R. 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. S.C. 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 U.P.	 ; 	 reversed the said order of conviction and sentence and acquitted him on the ground that he was not a 'foreigner ' under section 2(a) 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	 A.I.R. 1959 Bom. 526 and State vs Akub	 A.I.R. 1961 All. 428	 referred to. 686