Taksin Ahmed vs State
1985 Latest Caselaw 475 Del

JUDGMENT

J.D. Jain

(1) The petitioner was convicted of an offence u/s 14 of the Foreigners Act by a Met. Mgte vide his judgment dated 13.1.82 and he was sentenced to R.I. for one year. Feeling aggrieved, he went in appeal but with no success, the appeal having been dismissed by an- Add. Sessions Judge by his judgment dated 17.5.83. Hence, he has come up in revision against his conviction and sentence.

(2) The fact of this case lie in a very narrow compass. The petitioner was tried on the charge that he was apprehended by the police on 27.6.74 at about 7.30 P.M. when he was present near the tent factory of M/s. Lal Singh & Sons, Wazir pur Industrial Area, Delhi. On interrogation he gave out his name as Gaffar which turned out to be false. Eventually it transpired that he was a Pakistan national and had entered India in 1957 on a Pakistan passport with Indian visa endorsed on it. However, he did not return to Pakistan and over-stayed in India until the date he was apprehended by the police. A case under Foreigners Act was registered against him, being Fir No. 624/76, Police Station Sarai Rohilla and he was prosecuted for the said offence. [In paras 3 to 5, evidence is noticed]

(3) From the foregoing evidence it clearly emerges that the petitioner came to India on Pakistan passport with Indian visa endorsed thereon twice and on both the occasions he went back to Pakistan. It is, however, not clear as to how and when he crossed into India thereafter. Anyhow, this fact is not very relevant in view of the plea raised by the petitioner in the instant case. His contention is that he was born in Kanpur (India) in April 1936 and as such he was a citizen of this country when the Constitution came into force on 26.1.50. The learned counsel for the petitioner has invited my attention in this-context to Ex. PW3/A and PW3/B in which the place of the petitioner has been shown as Kanpur and the year of his birth has been shown as 1936. The petitioner has also placed on record a copy of an entry in a register maintained at village Vasa Dargah, Block Domariaganj, Distt. Basti containing the names of his family members. This includes the name of the petitioner and the certificate appears to have been issued by Kazi Iftkhar Ahmad, Pradhan, of the Block. He has also placed on record a copy of the voters list for Domariaganj constituency of U.P. Assembly. However, as pointed out by the learned Add. Sessions Judge, these documents are of subsequent period i.e. after the entry of the petitioner in India in 1957. However, the entries Ex. PW3/A&PW3/B lend support to the contention of the petitioner that his father was an Indian national and he was residing at Kanpur. It does not stand to reason that the petitioner would have got false entries made wayback in 1957 with regard to the name of his father and the place and year of his birth. Significantly his visit to village Vasa Dargah is also indicated in Ex. PW3/A. No doubt, the burden of proof that he was an Indian national on the day the Constitution of India came into force lies on the petitioner but I think that the onus has to be discharged on the criterion of preponderance of probibilities because in the very nature of things it is difficult, if not impossible, for him to adduce direct evidence regarding his birth in India wayback in 1936. He has no doubt adduced some oral evidence but that has not been believed by the courts below. All the same, having regard to the fact that he was about 14 years only when the Constitution of India came into force and that his father had been residing in India all along it would appear that the petitioner was domiciled in India on the date of the Constitution coming into force and it was only subsequently that he went to Pakistan.

(4) In this view of the matter, therefore, the contention of the petitioner that the criminal court had no jurisdiction to decide that the petitioner had lost his Indian citizenship subsequent to 26.1.50 in view of the specific provisions contained in Section 9(2) of the Citizenship Act, 1955 (the 'Act') S. 9 lays down that a citizen of India who by naturalization, registration or otherwise voluntarily acquires or has at any time between 26.1.50 and the commencement of the Act (i e. 30.12.55) voluntarily acquired the citizenship of another country shall upon, acquisition or as the case may be, such commencement cease to be a citizen of India. Evidently S. 9(l) provides for situations wherein citizenship of Indian citizen stands terminated, one such situation being acquisition of the citizenship of another country. Id other words, if an Indian citizen acquires citizenship of another country or he acquired the same during the relevent period mentioned in the Section, that by itself without any thing more would result in the termination of his citizenship of India. As observed by the Supreme Court in State of U.P.v. Shah Mohammad , "the language of S. 9(1) is clear and unequivocal and leaves no room for doubt that it would cover all cases where an Indian citizen has acquired foreign nationality between 26.1.50 and its commencement or where he acquires such rationality after its commencement." S. 9(2) of the Act lays down that if any question arises as to whether, when or how any person has acquired the citizenship of another country, it shall be determined by such authority in such manner and having regard to such rules of evidence, as may be prescribed in this behalf. Rule 30 of the Citizenship Rules, 1956 (for short 'the Rules') framed by the Central Govt. in exercise of the powers conferred by S. 18 of the Act provides that the Central Govt. shall be the authority to determine the question as .to whether, when or how any person has acquired the citizenship of another country. It further says that the Central Govt. shall in determining any such question have due regard to the rules of evidence specified in Schedule III. Thus, the Central Govt. has been nominated as the appropriate authority for the purposes of S. 9(2) of the Act by virtue of this rule. Consequently the courts have no jurisdiction to determine if there has been change of nationality of an Indian citizen subsequent to 26.1.50 and the sole authority competent to decide this question is the Central Govt.

(5) Several cases of the type i.e. the one before this Court in which a person was born in India and had lived there all along till after 26.1.50 when he went to Pakistan from where he returned to India on a passport granted by the Pakistan Govt. which had a visa endorsed on it by the Indian authorities permitting him to stay in India for a limited period but he over-stayed and was either directed to be deported or prosecuted came up before the Supreme Court and it has consistently held that the question as to whether a person has lost his citizenship of this country and has acquired the citizenship of a foreign country has to be tried by the Central Govt. and it is only after the Central Govt. has decided the point that the State Govt. can deal with the person as a foreigner. (See State of A.P. v. Abdul Khadar, , Govt. of A.P. v. Syed Mohd. Khan, 1962 (3) Scr (suppi) 288 State of U.P. v. Shah Mohammad , State of U.P. v. Rahmatullah, 1971 Scr (Supp) 494, State of Gujarat v. Yakub Ibrahim, and State of U.P. v. Mohammad Din & Others, Air 1984 Sc 1914). These authorities clearly state that the mere fact that an Indian citizen has obtained a foreign passport would be no ground for the courts to conclude that he has ceased to be an Indian citizen inasmuch as this question is within the sole jurisdiction of the Central Govt. and till the question is decided by the Central Govt. after holding a proper inquiry the courts cannot arrive at any conclusion on their own. The following observations of the Supreme Court in the Govt. of A.P. v. Syed Mohd. Khan (Supra) are very persistent to note : "It may be that if a passport from a foreign Government is obtained by a citizen, and the case falls under the impugned Rule (viz. Rule 3 in Schedule Iii to Citizenship Rules), the conclusion can be drawn only by the appropriate authority authorised under the Act to enquire into question. Therefore, there is no doubt that in all cases where action is proposed to be taken against persons residing in this country on the ground that they have acquired the citizenship of a foreign State and lost in consequence the citizenship of this country, it is essential that the question should be first considered by the Central Government. In dealing with the question, the Central Government would undoubtedly be entitled to give effect to the impugned rule 3 in Schedule 111 and deal with the matter in accordance with the other relevant Rules framed under the Act. The decision of the Central Govt. about the state of the person is the basis on which any further action can be taken against him."

(6) In Rahmatullah (supra) the facts were almost identical to those of the instant case. While the criminal proceedings were pending against the respondent the Central Govt. u/s 9(2) of the Act read with rule 30 of the Rules determined that the respondent had acquired citizenship of Pakistan after 26.1.50 and before 15.3.55. He was convicted of an offence u/s 14 of the Foreigners Act by the trial Court which conviction and sentence was confirmed by the Appellate Court. The High Court set aside the conviction. On appeal by the State the Supreme Court observed ; "...it seems to us to be obvious that till the Central Government determined the question of the respondent having acquired Pakistan nationality and had thereby lost Indian nationality, he could not be treated as a foreigner and no penal action could be taken against him on the basis of his status as a foreigner, being national of Pakistan .....In the background of these facts it appears to us that the wide charge as framed against him was misconceived and he could not be convicted of overstaying in this country at least till he was duly found to be a Pakistani national and to have ceased to be an Indian citizen."

(7) The conviction of the appellant was accordingly set aside. It may be pertinent to notice, however, that in State of Gujarat v. Yakub Ibrahim (supra) the Supreme Court took a slightly different view as regards the course to be adopted in a case like the present. It said : "If the real question which arises for determination whether in a civil or criminal case, 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. Without a decision of an appropriate authority on that question neither an acquittal nor a conviction could be recorded."

(8) In view of this settled law, therefore, the conviction of the petitioner for the aforesaid offence cannot be sustained. Of course, it will not be open to this Court to acquit him either because the question whether he has lost Indian citizenship has yet to be decided by the Central Govt. I am told that the question was referred to the Central Govt. by the Deputy Comm. of Police, Special Branch, vide letter dated 16.2.84. Counsel for the petitioner too submits that the petitioner has made an application to the Central Govt. for this purpose. The Govt. of India has, however, informed the Dy. Comm. of Police vide their letter dated 7.12.84 that the question whether the petitioner has acquired Pakistan nationality and has ceased to be an Indian citizen can be taken up u/s 9(2) of the Act by the Central Govt. only if this Court arrives at a finding that he was an Indian citizen on 26.1.50 under the provisions of the Constitution of India. That being so, I allow this revision petition and set aside the conviction and sentence of the petitioner but refrain from acquitting him. It will be, therefore, open to the respondent to proceed with the matter further if and when the question whether he has ceased to be an Indian citizen is decided by the Central Govt. in accordance with the provisions of S. 9(2) of the Act and the Rules framed there under. Since the petitioner is already on bail, no further order in the matter is called for.