Judgment Case ID: 1215

Judgment:
minal Appeal No. 192 of 1959. Appeal by special leave from the judgment and order dated October 27	 1958	 of the Andhra Pradesh High Court at Hyderabad in Criminal Revision Case No. 395 of 1958. M. C. Setalvad	 Attorney General of India	 T. V. R. Tatachari and T. M. Sen	 for the appellant. R. Thiagarajan for N. section Mani	 for respondent. April 4. The Judgment of the Court was delivered by SARKAR	 J. The respondent was convicted by the Judicial Magistrate of Adoni in the State of Andhra Pradesh	 under section 14 of the . His appeal to the Sessions Judge of Kurnool was dismissed. He then moved the High Court of Andhra Pradesh in revision and the revision petition was allowed. Hence the present appeal by the State of Andhra Pradesh. The facts found were these: On January 20	 1955	 the respondent had come to Adoni on a passport granted by the Government of Pakistan which bore the date January 10	 1955. The passport had endorsed on it a visa granted by the Indian authorities which permitted the respondent to stay in India up to April 14	 1955. The respondent continued to stay on in India after that date. On some date	 not precisely ascertainable from the record	 he appears to have made a representation to the Government of India for extension of his visa till September 2	 1957	 on grounds of health. The records do not however show what order	 if any	 was made on this representation. On September 3	 1957	 an order dated August 9	 1957	 made by the Government of Andhra	 Pradesh requiring him to leave India	 was served on the respondent As the respondent did not leave India as directed by this order	 he was prosecuted with the result earlier stated. The passport showed that the respondent was born at Adoni in 1924 The respondent appears to have 740 produced an extract from the municipal birth register	 which is not on the record	 but presumably showed that he was so born. The only evidence on the record of the date when he left India	 shows that must have been at the end of 1954 or early in 1955. There is evidence to show that he had been paying rent for his 	hop at Adoni for about ten years prior to 1958 and his parent section brothers	 wife	 and children were. and bad always been in India. The respondent was charged with the breach of the order to leave India which had been made under section 3 (2)(c) of the . Now the order could not be made on him	 neither could he be convicted for breach of it	 if lie was not a foreigner. That was the defence of the respondent	 namely that he was not a foreigner. The question is	 was a foreigner? The learned Judicial Magistrate found that by obtaining the passport from the Pakistan authorities	 "he has disowned Indian nationality and has ceased to be an Indian National." He also held that section 9 of the did not apply to the case but section 8 of that Act did and that under that section a decision made by the Government that a person is a foreigner is final and such a decision had been made in this case regarding the respondent as the Government had decided not to grant him an extension of his visa. On these grounds he found that the respondent was a foreigner. It seems to us that both these grounds are untenable. Section 8 applies to a case where "a foreigner is recognised as a national by the law of more than one foreign country or where for any reason	 it is uncertain what nationality if any is to be ascribed to a foreigner. " The section provides that in such cases the prescribed authority has power to decide of which country the foreigner is to be treated as the national and such decision shall be final. The section	 therefore	 applies to a person who is a foreigner and the question is of which foreign country he is a national. In the case of the respondent no such question arose and no decision could be or was made by any prescribed authority of such question. The learned Magistrate therefore clearly went wrong in relying on section 8. 741 As regards the passport	 the learned Magistrate did not come to the finding that it proved the respondent to have been a Pakistani national all along. What he Al did was to think that the respondent who had earlier been an Indian national	 had by obtaining it	 disowned Indian nationality and ceased to be an Indian national. Now	 section 9(2) of the 	 provides that if any question arises as to whether an Indian citizen has acquired the citizenship of another country	 it shall be determined by such authority and in such manner as may be prescribed. Under r. 30 of the rules framed under that Act		 the authority to decide that question is the Central Government. So the question whether the respondent	 an Indian citizen	 had acquired Pakistani citizenship cannot be decided by courts. The learned Magistrate had no jurisdiction therefore to come to the finding on the strength of the passport that the respondent	 an Indian citizen	 had acquired Pakistani citizenship. Nor was there anything before the learned Magistrate to show that the Central Government had decided that the respondent had renounced Indian citizenship and acquired that of Pakistan. The learned Magistrate thought that the fact that the Central Government had refused to extend the respondent 's visa proved that it had decided that he had acquired Pakistani nationality. This view again was not warranted. There is nothing to show that the Central Government had refused to extend the respondent 's visa. Even if it had	 that would not amount to a decision by it	 that the respon dent	 an Indian citizen	 had acquired subsequently Pakistani nationality for there may be such refusal when an applicant for the extension had all along been a Pakistani national. Furthermore	 in order that there may be a decision by the Central Government that an Indian citizen has acquired foreign nationality	 an enquiry as laid down in r. 30 of the rules framed under the has to be made and no such enquiry had at all been made. That being so	 it cannot be said that the Central Government had decided that the respondent	 an Indian citizen	 had acquired the citizenship of Pakistan. 742 The question whether a person is an Indian citizen or a foreigner	 as distinct from the question whether a person having once been an Indian citizen has renounced that citizenship and acquired a foreign nationality	 is not one which is within the exclusive jurisdiction of the Central Government to decide. The courts can decide it and	 therefore	 the learned Magistrate could have done so. He	 however	 did not decide that question	 that is	 find that the respondent had been a Pakistani national all along. On the evidence on the record such a finding would not have been warranted. For all these reasons we think that the conviction of the respondent by the learned Magistrate was not well founded. Coming now to the decision of the learned Sessions Judge	 he seems to have based himself on the reasoning that the "conduct of the appellant" that is	 the respondent before us	 "in applying for extension of time shows that he is not a citizen of India and that he has acquired citizenship of Pakistan. If he were a citizen of India	 he could have raised this plea and this question could have been decided by the Central Government as envisaged by Rule 30	 sub Rule I of the Rules made under the and there was no necessity to apply for extension. " Quite plainly	 the learned Sessions Judge was proceeding on the basis that the respondent had renounced his Indian citizenship and acquired Pakistani citizenship. As we have said earlier	 that is not a question which is open to a court to decide and there is no evidence to show that it has been decided by the Central Government who alone has the power to decide it. The learned Sessions Judge did not direct himself to the question which lie could decide	 namely whether the respondent had from the beginning been a Pakistani citizen. His decision	 therefore	 cannot also be sustained. We have examined the evidence on the record our.	elves and are unable to say that a conviction can be based on it. There can be no conviction unless it can be held on the evidence that the respondent is a foreigner	 that is to say	 a person who is not an Indian 743 citizen: see section 2(a) of the as amended by Act 11 of 1957. The evidence shows that the respondent did go to Pakistan	 but the only evidence with regard to that is that he went there about the end of 1954 or the beginning of 1955. This evidence also indicates that he stayed there for a short time. He was all along paying the rent for his shop in Adoni. His family bad always been there. Therefore it can be said that he had never migrated to Pakistan. Clearly	 a short visit to Pakistan would not amount to migrating to that country. The passport obtained by him from Pakistan would no doubt be evidence that he was a Pakistani national. As on the facts of this case he must be held to have been an Indian citizen on the promulgation of the Constitution	 the passport can show no more than that he renounced Indian citizenship and acquired Pakistani nationality. Such evidence would be of no use in the present case for	 in view of section 9(2) of the 	 a Court cannot decide whether an Indian citizen has acquired the citizenship of another country. The position then is this. The respondent has clearly discharged the onus that lay on him under section 9 of the to prove that he was not a foreigner	 by proving that he was born and domiciled in India prior to January 26	 1950	 when the Constitution came into force and thereby had become an Indian citizen under article 5(a) of the Constitution. He has further proved that he had never migrated to Pakistan. It has not been shown that the Central Government had made any decision with regard to him under section 9 of the that he has acquired a foreign nationality. Therefore	 it cannot be held by any court that the respondent who was an Indian citizen has ceased to be such and become a foreigner. That being so	 it must be held for the purpose of this case that the respondent was not a foreigner and no order could be made against him under section 3(l)(c) of the . Conviction for breach of such an order by the respondent would be wholly illegal. 744 Though we are upholding the decision of the High Court	 we wish to observe that we do not do so for the reasons mentioned by it. It is unnecessary to discuss those reasons but we would like to point	 out one thing	 namely. that the High Court seems to have been of the opinion that article 7 of the Constitution contemplates migration from India to Pakistan even after January 26	 1950. We desire to make it clear that we should not be taken to have accepted or en dorsed the correctness of this interpretation of article 7. The reference in the opening words of article 7 to articles 5 and 6 taken in conjunction with the fact that both articles 5 and 6 are concerned with citizenship (at the commencement of the Constitution) apart from various other considerations would appear to point to the conclusion that the migration referred to in article 7 is one before January 26	 1950	 and that the contrary construction which the learned Judge has put upon article 7 is not justified	 but in the view that we have taken of the facts of this case	 namely	 that the respondent had never migrated to Pakistan	 we do not consider it necessary to go into this question more fully or finally pronounce upon it. In the result we dismiss the appeal. Appeal dismissed.

Summary:
The respondent was born in India in 1924 and had lived there all along till about the end of 1954. He had been paying rent for his shop in India for ten years upto about 1958 and his family was and had always been in India. At the end of 1954 or the beginning of 1955 lie went to Pakistan from where he returned on January 20	 1955	 on a passport granted by the Pakistan Government which had a visa endorsed on it by the Indian authorities permitting him to stay in India up to April	 1955. The respondent applied to the Central Government for extension of the time allowed by the visa but the records did not Show What order	 if any	 had been made on it. As the respondent had stayed beyond the time specified in the visa	 he was on September 3	 1957	 served with an order made by the Government of Andhra Pradesh under section 3(2)(C) Of the 	 i946 requiring him to leave India. The order described him as a Pakisthan National. on his failure to comply with this order 93 738 he was prosecuted under section 14 of the . His defence was that he was an Indian national. The trying magistrate rejected this defence and convicted him holding (a) that the fact that the respondent obtained a Pakistan passport proved that he had disowned Indian nationality and ceased to be an Indian national and (b) that by refusing to extend the time fixed by the visa the Central Government had decided that the respondent was a foreigner and under section 8 of the 	 such a decision was final. An appeal by the respondent was dismissed by the Sessions judge on the ground that the respondent 's application for extension of the time fixed by the visa proved that he had renounced his Indian nationality and had acquired the citizenship of Pakistan. The High Court of Andhra Pradesh set aside the conviction in revision. On appeal by the State of Andhra Pradesh	 Held	 that neither the Magistrate nor the Sessions Judge was competent to come to a finding of his own that the respon dent	 an Indian national	 had disowned his nationality and acquired Pakistan nationality for under section 9(2) of the 	 that decision could only be made by the prescribed authority which under the Rules framed under the Act was the Central Government. The fact that the Central Government had refused to extend the visa did not show that it had decided under the section that the respondent had renounced his Indian nationality and acquired Pakistan citizenship. In any event	 in order that the Central Government might come to a decision under section 9(2) of the an enquiry as laid down in r. 30 Of the Rules framed under the Act had to be made and no such inquiry had been made. On the facts established	 the respondent became an Indian citizen under article 5(a) of the Constitution when it came into force. He thereby discharged the onus laid on him by section 9 of the to prove that he was an Indian citizen when that was in dispute. The passport obtained by the respondent from the Pakistan Government would	 therefore	 only be evidence that the respondent had renounced Indian nationality and acquired Pakistan citizenship. Such evidence was however of no use in a court for no court could in view of section 9(2) of the decide whether an Indian citizen had renounced his citizenship and acquired the citizenship of a foreign country. Section 8 of the had no application to the case as it only applied where a foreigner is recognised as a national by the law of more than one foreign country or where it is uncertain what nationality is to be ascribed to a foreigner and in the present case that was not the question but the question was whether the respondent was an Indian or a foreigner. The respondent 's short visit to Pakistan had not amounted to a migration to that country. Query	 whether article 7 of the Constitution contemplates migration from India to Pakistan after January 26	 1950.