Judgment Case ID: 1532

Judgment:
iminal Appeal No. 12 of 1961. Appeal from the judgment and order dated April 26 1960	 of the Madhya Pradesh High Court Jabalpur in Criminal Appeal No. 388 of 1958. B. Sen and I. N. Shroff	 for the appellant. The respondent did not appear. September 28. The Judgment of the Court was delivered by GAJENDRAGADKAR	 J. A charge sheet was presented by the appellant the State of Madhya Pradesh against the respondents Peer Mohammad and his wife Mst. Khatoon under section 14 of the (hereinafter called the Act) read with cl. 7 of the Foreigners Order	 1948 (hereinafter called the Order) in the Court of the Magistrate 1st Class	 Burhanpur. The case against the respondents was that they had entered India on May 13	 1956	 on the strength of a Pakistani passport and a visa issued in their favour on. May 8	 1956	 and reached Burhanpur on May 15	 1956. Even after the period of the 431 visa had expired	 they continued to stay in India. Consequently	 the district Magistrate	 Burhanpur	 served a notice on them on May 14	 1957 calling upon them to leave India on or before May 28	 1957. The respondents did not comply with the notice and by their unauthorised and illegal over stay in India	 they rendered themselves liable under section 14 of the Act and cl. 7 of the Order. The respondents pleaded that they were not foreigners but were citizens of India. They were born in India at Burhanpur and had been permanent residents of the said place; and so the present criminal proceedings instituted against them were misconceived. The prosecution	 however	 urged that the respondents had left India for Pakistan some time after January 26	 1950	 and under article 7 of the Constitution they cannot be deemed to be citizens of India. In the alternative	 it was urged that since the respondents had obtained a Pakistani passport	 they have acquired the citizenship of a foreign country and that has terminated their citizenship of India under section 9 of the (LVII of 1955). It appears that before the learned Magistrate	 only this latter plea was pressed and the learned Magistrate held that the question as to whether the respondents had lost their citizenship of India under section 9 (2) of the has to be decided by the Central Government and cannot be agitated in a court of law. Therefore	 the learned Magistrate passed an order under section 249 of the Code of Criminal Procedure	 directing that the respondents should be released	 and the passport seized from them should be returned to them after the period of appeal	 if any. Against this order	 the appellant preferred an appeal in the High Court of Madhya Pradesh	 and before the High Court it was urged by the appellant that on a fair and reasonable construction of article 7 432 it should be held that the respondents cannot be deemed to be citizens of India *and so	 they were liable under section 14 of the Act and cl. 7 of the Order. This appeal was heard by Shrivastava and Naik	 JJ. Shrivastava	 J.	 took the view that article 7 did not apply to the case of the respondents who had left India for Pakistan after January 26	 1950	 and so	 they could not be held to be foreigners on the ground that they had left India as alleged by the prosecution. Naik	J.	 however	 came to a contrary conclusion. He took the view that since it was proved that the respondents had left India for Pakistan after January 26	 1950	 article 7 was attracted and so	 they must be deemed to be foreigners. Since there was a difference of opinion between the two learned judges who heard the appeal	 it was referred to Newaskar. J. Newaskar	 J.	 agreed with the conclusion of Shrivastava	 J.	 and so	 in the light of the majority opinion	 it was held that under article 7	 the respondents could not be held to be foreigners. In regard to the alternative case of the prosecution that the respondents had obtained a Pakistani passport and so	 had lost their citizenship under section 9(2) of the 	 the High Court held that it was a matter which had to be determined by the Central Government and it is only after the Central Government decides the matter against the respondents that the appellant can proceed to expel them from India. It	 however	 appears that the High Court read the order passed by the trial Magistrate as amounting to an order of acquittal	 and so	 quashed the said order with liberty to the appellant to institute fresh proceedings against the respondents if and when considered necessary by it. In fact	 as we have already mentioned	 the order passed by the trial Court was one under section 249 Cr. It is. against this decision of the High Court that the appellant has come to this Court with a certificate granted by the High Court. At this stage	 we may add that there were eleven 433 other cases of a similar nature which were tried by the Magistrate along with the present case and considered by the High Court at the appellate stage. Appeals against the companion matters are pending before this Court	 but their fate will be decided by our decision in the present appeal. Section 14 of the Act provides	 inter alia	 that if any person contravenes the provisions of this Act or of any order made thereunder	 he shall be punished in the manner prescribed by the section. Clause 7 of the Order issued under the said Act prescribes that every foreigner who enters India on the authority of a visa issued in pursuance of the Indian Passport Act	 1920 shall obtain from the Registration Officer	 specified therein	 a permit indicating the period during which he is authorised to remain in India and shall	 unless the period indicated in the permit is extended by the Central Government	 depart from India before the expiry of the said period. The prosecution case is that the respondents having entered India with a visa have overstayed in India after the expiration of the visa and the period indicated in the permit and so	 they are liable to be punished under section 14 of the Act and cl. 7 of the Order. It would be noticed that in order that the respondents should be liable under the said provisions	 it must be shown that when they entered India	 they were foreigners. In other words	 cl. 7 of the order applies to every foreigner who enters India in the manner therein indicated ; and that raises the question as to whether the respondents were foreigners when they entered India. The prosecution contends that the respondents were foreigners at the relevant date on two grounds. It is urged that they left India for Pakistan after January 26	 1950	 and so	 under article 7 they cannot be deemed to be citizens of India at the relevant time. The alternative ground is that they have acquired a passport from the Pakistan 434 Government and as such they lost the citizenship of this country under section 9(2) of the citizenship Act. It is common ground that the latter question has to be decided by the Central Government	 and so	 this J. Court is not concerned with it. The only question which falls for our decision	 therefore	 is: can the respondents be said to be foreigners at the relevant date under article 7	 because they left India for Pakistan after January 26	 1950 ? The answer to this question would depend on the construction of article 7. In construing article 7	 it would be necessary to examine briefly the scheme of the seven Articles that occur in Part 11. These Articles deal with the question of citizenship. Article 5 provides that at the commencement of the constitution	 every person who has his domicile in the territory of India and who satisfies one or the other of the three tests prescribed by cls. (a)	 (b) and (c)	 shall be a citizen of India. Article 6 deals with persons who have migrated to the territory of India from Pakistan and it provides that they shall be deemed to be citizens of India at the commencement of the Constitution if they satisfy the requirements of clauses (a) & (b). In other words	 article 6 extends the right of citizenship to persons who would not satisfy the test of article 5	 and so	 persons who would be entitled to be treated as citizens of India at the commencement of the Constitution are covered by articles 5 and 6. Article 7 with which we are concerned provides that notwithstanding anything in articles 5 and 6	 a person who has after March 1	 1947	 migrated from the territory of India to the territory now included in Pakistan shall not be deemed to be a citizen of India. The proviso deals with persons who having migrated to Pakistan have returned to the territory of India under a permit for resettlement or permanent return	 but with that class of persons we are not concerned in the present appeal. Article 8 deals with the 435 rights of citizenship of persons of Indian origin who reside outside India. Article 9 provides that no person shall be a citizen of India by virtue of articles 5	 6 or 8	 if he has voluntarily acquired the citizenship of any foreign State. Articles 10 and 11 then lay down that the rights of citizenship prescribed by articles 5 and 6 shall be subject to the provisions of any law that may be made by Parliament; that is to say	 the said rights will continue unless they are otherwise affected by any law made by Parliament in that behalf. Article 11 makes it clear that the provisions of Part 11 Will Dot derogate from the power of Parliament to make any provision with respect to the acquisition and termination of ' citizenship and all other matters relating to citizenship. That	 in brief	 is the scheme of Part 11. It is urged by Mr. Sen on behalf of the appellant that where the Constitution wanted to limit the scope of the Article by reference to the date of the commencement of the Constitution	 it has used appropriate words in that behalf	 and in that connection	 he relies on the use of the words "at the commencement of the Constitution" which occur in articles 5 and 6. Article 7 does not include such a clause	 and so	 the migration from the territory of India to the territory included in Pakistan to which it refers should not be construed to be limited to the migration prior to the commencement of the Constitution. Just as a person who has migrated to Pakistan from India prior to January 26	 1950 shall not be deemed to be a citizen of India by virtue of such migration	 so should a person who has migrated from India to Pakistan even after the commencement of the Constitution be denied the right of citizenship. That is the appellant 's case and it Is based substantially on the ground that the clause "at the commencement of the Constitution" is not used by 436 This argument	 however	 cannot be accepted because it is plainly inconsistent with the material words used in the Article. It will be noticed that a person who shall not be deemed to be a citizen of India is one "who has	 after the first day of March	 1947	 migrated from the territory of India to the territory of Pakistan. " It is true that migration after January 26	 1950	 would be migration after March 1	 1947	 but it is clear that a person who has migrated after January 26	 1950	 cannot fall within the relevant clause because the requirement of the clause is that he must have migrated at the date when the Constitution came into force. "Has migrated" in the context cannot possibly include cases of persons who would migrate after the commencement of the Constitution. It is thus clear that it is only persons who had migrated prior to the commencement of the Constitution that fall within the scope of article 7. The use of the present perfect tense is decisive against the appellant 's contention and so	 the absence of the words on which Mr. Sen relies has no significance. Besides	 as the article is worded	 the use of the said words would have been inappropriate and having regard to the use of the present perfect tense	 such words were wholly unnecessary. The proviso to article 7 which deals with cases of persons who having migrated to Pakistan have returned to India under a permit for resettlement	 also supports the same conclusion. The migration there referred to appears to be migration prior to the commencement of the Constitution. It is relevant to refer to article 9 in this connection. This Article deals with cases of persons who have voluntarily acquired the citizenship of any foreign State and it provides that such persons shall not be deemed to be citizens of India by virtue of articles 5	 6 or 8. Now	 it is clear that the acquisition of the citizenship of any foreign State to which this Article refers is acquisition made prior to the commencement	 437 of the Constitution. "Has voluntarily acquired" can have no other meaning	 and so	 there is no doubt that the application of article 9 is confined to the case of acquisition of citizenship of foreign State prior to the commencement of the Constitution. In other words	 the scope and effect of article 9 is	 in a sense	 comparable to the scope and effect of article 7. Migration to Pakistan which is the basis of article 7 like the acquisition of citizenship of any foreign State which is the basis of article 9	 must have taken place before the commencement of the Constitution. It will be noticed that migration from Pakistan to India as well as migration from India to Pakistan which are the subject matters of articles 6 and 7 deal with migrations prior to the commencement of the Constitution. The Constitution makers thought it necessary to make these special provisions	 because migrations both ways took place on a very wide scale prior to January 26	 1950	 on account of the partition of the country. Migrations to Pakistan which took place after January 26	 1950	 are not specially provided for. They fall to be considered and decided under the provisions of the ; and as we will presently point out	 citizens migrating to Pakistan after the said date would lose their Indian citizenship if their cases fall under the relevant provisions of the said Act. It is true that as article 7 begins with a non obstante clause by reference to articles 5 & 6	 and there is a little overlapping. The non obstante clause may not serve any purpose in regard to cases falling under article 5 (c)	 but such overlapping does not mean that there is any inconsistency between the two Articles and it can	 therefore	 have no effect on the construction of article 7 itself. Therefore	 we are satisfied that article 7 refers to migration which has taken place between March 1	 1947	 and January 26	 1950. That being so	 it cannot be held that the respondents fall within article 7 by virtue of the fact that they migrated from India to Pakistan some time after 438 January 26	 1950	 and should	 therefore	 be deemed not to be citizens of India. In this connection	 it is necessary to add that cases of Indian citizens acquiring the citizenship of any foreign State are dealt with by article 9	 and the relevant provisions of the . If the foreign citizenship has been acquired before January 26	 1950	 article 9 applies; if foreign citizenship has been acquired subsequent to January 26	 1950	 and before the came into force	 and thereafter	 that is covered by the provisions of the 	 vide Izhar Ahmed Khan vs Union of India(1). It is well known that the has been passed by the Parliament by virtue of the powers conferred and recognised by articles 10 and 11 of the Constitution and its relevant provisions deal with the acquisition of citizenship of India as well as termination of the said citizenship. Citizenship of India can be terminated either by renunciation under section 8	 or by naturalisation	 registration or voluntary acquisition of foreign citizenship in any other manner	 under section 9	 or by deprivation under section IO. The question about the citizenship of persons migrating to Pakistan from India after January 26	 1950	 will have to be determined under these provisions of the . If a dispute arises as to whether an Indian citizen has acquired the citizenship of another country it has to be determined by such authority and in such a manner and having regard to such rules of evidence as may be prescribed in that behalf That is the effect of section 9(2). It may be added that the rules prescribed in that behalf have made the Central Government or its delegate the appropriate authority to deal with this question	 and that means this particular question cannot be tried in courts. The result is that the respondents cannot be said to be foreigners by virtue of their migration to Pakistan after January 26	 1950	 and that is the only question (1) [1962] Supp. 2 S.C.R. 235. 439 which can be tried in courts. If the State contends that the respondents have lost their citizenship of India under section 9 (2) of the 	 it is open to the appellant to move the Central Government to consider and determine the matter	 and if the decision of the Central Government goes against the respondents	 it may be competent to the appellant to take appropriate action against the respondents. So far as the appellant 's case against the respondents under article 7 is concerned	 the High Court was right in holding that the respondents were not foreigners within the meaning of cl. 7 of the Order and cannot	 therefore	 be prosecuted under section 14 of the Act. The appeal accordingly fails and is dismissed. Appeal dismissed.

Summary:
The respondents who were citizens of India left India for Pakistan sometime after January 26	 1950. They returned to India in 1956 on the strength of a Pakistani passport and visa. They continued to stay in India even after the period of the visa had expired and were prosecuted under section 14 	 read with cl. 7 Foreigner 's Order	 1948	 for unauthorised and illegal overstay in India. The High Court acquitted them holding that they had not become foreigners on.account of their leaving India after January 26	 1950	 and the question whether they had lost their Indian citizenship on account of acquisition of Pakistani citizenship could not be agitated before a court of law. The appellant contended that in view of article 7 of the Constitution the respondents could 430 not be deemed to be citizens of India as they had migrated to Pakistan after March 1	 1947	 within the meaning of article 7. Held	 that article 7 was applicable only to persons who had migrated to Pakistan between March 1	 1947	 and January 26	 1950	 and under this Article the respondents had not ceased to be citizens of India. The words "has migrated" in article 7 could not include cases of persons who would migrate after the commencement of the Constitution	 they refer only to persons who had migrated at the date when the Constitution came into force. The absence of the words "at the commencement of the Constitution" in article 7 has no significance. Cases of acquisition of foreign citizenship after January 26	 1950	 were covered by the provisions of the 	 and of the rules made thereunder. The Central Government or its delegate was the appropriate authority to deal with such questions and they could not be tried in courts. Izhar Ahmad Khan vs Union of India	 referred to.