The State v. Mahmadkhan Navrang khan Accused — 1958 DIGILAW 137 (BOM)

JUDGMENT - DATAr, J. : This is an appeal filed by the State of Bombay against the order of acquittal passed by the Judicial Magistrate, First Class, Ankleshwar in Criminal Case No. 996 of 1957. (2) The case of the prosecution was that the present respondent Mahomedkhan Navarangkhan is a foreigner being a National of Pakistan. As such national he obtained a Passport from the Government of Pakistan at Karachi on 9-6-1952 which was valid upto 9-6-1957. (3) On 3-7-1956 he applied for Visa for India to enable and authorise him to enter the Indian territory to see his father and other relatives in the State of Bombay. The High Commissioner for India in Pakistan granted him Visa of the Category C being No. 49900 and dated 3-7-1956. It was stated in the Visa that it was valid for three months from the date of entry, which meant that the respondent, in whose favour it was issued, was1 to remain in India for a period of three months from the date of his arrival on the Indian territory. The respondent entered India on 12-7-1956, and accordingly he was allowed to stay in India till 11-10-1956. But he did not leave India even after 11-10-1956. (4) On 21-6-1957, the District Police Superintendent, Broach, gave him a notice stating that in spite of the last date of the Visa obtained from the High Commissioner for India in Pakistan, he was illegally staying in Bharat, and he was therefore ordered to quit Bharat within one month from the date of the receipt of the notice, failing which legal steps would be taken against him in a Court of law and thereafter he would be deported from India. This notice was served upon the respondent on 22-6-1957 (5) Even after the period mentioned in the notice expired, the respondent did not leave India. This notice was served upon the respondent on 22-6-1957 (5) Even after the period mentioned in the notice expired, the respondent did not leave India. Hence, the Police Sub-Inspector of Ankleshwar filed a complaint on 31-7-1957 against the respondent sta-ting that he was a foreigner under S. 2(a) of Foreigners Act of 1946 and that he had not left Bharat in spite of the notice served on him on 22-6-1957 and had continued to stay in Ankleshwar (Bharat) illegally in spite of the expiry of the notice and had therefore committed a breach of R. 7 of the Foreigners Order, 1948, and S. 13 of the Foreigners Act, 1946, and thus committed an offence punishable under S. 14 of the Foreigners Act, 1946. (6) The Judicial Magistrate, before whom the case came up for trial, framed a charge against the respondent as follows : "That you on or about the 25th day of July 1957 at Ankleshwar being a foreigner entered into India under the authority of C Visa No. 49900 dated 3-7-1956 on 12-7-1956 and were permitted to stay in India upto 11-10-1956 but you did not leave India even after the D. S. P. Broach gave you notice which was served on you on 22-6-1957 and thereby contravened R. 7 of the Foreigners Order, 1948 and also S. 13 of the Foreigners Act, 1946, and thereby committed an offence punishable under S. 1.4 of the Foreigners Act, 1946." (7) The respondent resisted the charge. His defence was that he was not a National of Pakistan but was a citizen of India. He was born at Ankleshwar and was officiating as Talathi till 1951 when he resigned from his office. Then he started business, but due to loss in the business he had to stop it in a short time. Thereafter he could not secure a good, job or any good business and in search of good service and for a short time he went to Pakistan (Karachi). He did not go to Pakistan permanently. He had no reason, except for service, in going to Pakistan. After going to Pakistan, he found that it was not suitable for him to stay there. He did not go to Pakistan permanently. He had no reason, except for service, in going to Pakistan. After going to Pakistan, he found that it was not suitable for him to stay there. He intended to come back to Bharat in a short time; and when he made movements to return to Bharat, he was informed that it was impossible to return to Bharat, unless he obtained the passport of Pakistan for returning to Bharat. At last he obtained the passport from Pakistan. Thereafter, he applied for Visa. He further says that he was not informed that he would be considered as national of Pakistan when he obtained the passport and the Visa from his Agent in Pakistan. The Agent had taken his signature on the blank forms and he filled up all the particulars according to his (Agents) wish and he was not made aware of the particulars written by the Agent and if it was stated that he was a national of Pakistan in the application for Visa, that fact was mentioned in the application without his knowledge and no such declaration was ever made by him. (8) The learned Magistrate, on appreciation of the evidence led before him, held that the respondent was born in India in 192.1 or 1922, that he served as a Talathi from 1944 till 1.951 in the District of Broach and that he left India either towards the end of 1951 or in early 1952. He also held that the prosecution had not proved that the respondent migrated from India to Pakistan with the intention of residing and settling in Pakistan and that therefore Art. 7 of the Constitution did not apply and in view of Art. 5 of the Constitution, the respondent was a citizen of India and not a foreigner. Accordingly, on 30-11-1957 he acquitted the respondent of the offence with which he had been charged. (9) The State has now come to this Court in appeal against the order of acquittal. (10) The learned Government Pleader, who appears for the State, contended that even from what had been stated by the respondent in his defence at the trial, the migration of the respondent from India to Pakistan had been more than amply proved. (9) The State has now come to this Court in appeal against the order of acquittal. (10) The learned Government Pleader, who appears for the State, contended that even from what had been stated by the respondent in his defence at the trial, the migration of the respondent from India to Pakistan had been more than amply proved. According to the learned Goverament Pleader migration did not mean leaving one country for another, with a view permanently to reside and settle in the other country. But it only meant leaving one country for another with a view to pursue any normal avocation in the other country. The second contention that was raised by the learned Government Pleader was that in view of R. 3 specified in Schedule III of the Citizenship Rules, 1956, made under S. 18 of the Citizenship Act, 1955, the fact that the respondent (though originally a citizen of India) had obtained a passport on 9-6-1952 from the: Government of Pakistan shall be conclusive proof of his having voluntarily acquired the citizenship of that country before that date, and therefore it was not now open to the respondent to contend that he still retained the citizenship of India. The learned Government Pleader also drew our attention to the declaration made by the respondent in his application for Visa before the High Commissioner for India in Pakistan, wherein he had stated that he was a Pakistan National and that he had migrated from India in August 1948. In view of these solemn declarations in the application, contended the learned Government Pleader, the respondent could not be regarded as a citizen of India, but was only a foreigner so long as no attempt had been made by him to show that he had been induced to make those declarations either because of some fraud or misrepresentation. The learned Government Pleader also pointed out that in view of the provisions of S. 9 of the Foreigners Act, 1946, the onus of showing that he was not a foreigner was entirely upon the respondent, and in the absence of any relevant evidence in that behalf, it must be held that the respondent was a foreigner and therefore guilty of the offence with which he was charged. (11) In our view, it is not necessary to consider any of these submissions made by the learned Government Pleader, as this appeal can be disposed of on the ground that the respondent was not a foreigner when he entered India on 12-7-1956 as defined in the Act as it then stood and that the facts proved by the prosecution in this case do not at all make out any case of the contravention of R. 7 of the Foreigners Order, 1948, or S. 13 of the Act, for which the respondent was charged in the trial Court. We have set out the entire charge as framed by the learned Magistrate. Indeed it appears the learned Magistrate while framing the charge relied upon the averments and the allegations made by the sub-inspector in his written complaint filed on 31-7-1957. Both the charge and the written complaint refer to the contravention of R. 7 of the Foreigners Order, 1948, and also S. 13 of the Foreigners Act. Section 13 so far as material states that any person who fails to comply with any direction given in pursuance of any such order (made under the provisions of the Act) shall be deemed to have contravened the provisions of the Act. The orders referred to in S. 13 are those orders which the Central Government may make in the exercise of their power conferred upon them by S. 3 of the Foreigners Act, 1946. Section 3 (1) of the Act says that "the Central Government may by order make provision either generally or with respect to all foreigners or with respect to any particular foreigner........for prohibiting, regulating or restricting the entry of foreigners into India or their departure there from ..... (2) In particular and without prejudice to the generality of the foregoing power, orders made under this section may provide that the foreigner — (c) shall not remain in India or in any prescribed area therein." Under S. 12 of the Act, it seems, the Central Government has been authorised to delegate its powers under S. 3 to any authority subordinate to it. Section 12 reads : "Any authority upon which any power to make or give any direction, consent or permission or to do any other act is conferred by this Act or by any order made there under may, unless express provision is made to the contrary, in writing authorise, conditionally or otherwise any authority subordinate to it to exercise such power on its behalf......" From the wording of Sec. 13 mentioned above, it is clear that it refers to the non-compliance of a direction given in pursuance of any order made by the Central Government under S. 3 or by any authority subordinate thereto under Sec. 12 of the Act. It is for this reason that the learned Govt. Pleader relied more upon the reference to the contravention of R. 7 of the Foreigners Order, 1948, than upon the reference to S. 1.3 in the charge. It is only when there is an order of a competent authority under the Act that the question of any direction being given in pursuance thereof can arise. Therefore, the only question that falls to be considered is whether there was any order the contravention of which amounted to an offence punishable under S. 14 of the Act. The prosecution, as is clear from the complaint and the charge, relies upon the contravention of only paragraph (rule) 7 of the Foreigners Order, 1948. The Foreigners Order, 1948, was made by the Central Government in the exercise of its powers conferred by S. 3 of the Foreigners Act, 1946. Paragraph 7 (mentioned as R. 7 in the charge) of the Foreigners Order states that "Every foreigner who enters India on the authority of a Visa issued in pursuance of the Indian Passport Act, 1920 (XXXIV of 1920) shall obtain from the Registration Officer having jurisdiction,........ Paragraph 7 (mentioned as R. 7 in the charge) of the Foreigners Order states that "Every foreigner who enters India on the authority of a Visa issued in pursuance of the Indian Passport Act, 1920 (XXXIV of 1920) shall obtain from the Registration Officer having jurisdiction,........ 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; and at the time of foreigners departure from India the permit shall be surrendered by him to the Registration Officer having jurisdiction at the place from which he departs." The wording of this paragraph makes it clear that before there could be any contravention of the provisions thereof it must be shown that the person who entered India was a foreigner and that having entered India he failed in the first instance to obtain a permit from the requisite authority indicating the period during which he was authorised to remain in India and thereafter failed to depart from India before the expiry of the said period. If so, then the question arises, was the respondent a foreigner on 12-7-1956 when he entered India? As S. 2 (a) of the Foreigners Act, 1946, stood on that date, "foreigner" was defined as meaning a person "who (i) is not a natural born British Subject as defined in sub-ss. (1). and (2) of S. 1 of the British Nationality and Status of Aliens Act, 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." It is not disputed, and indeed it cannot be disputed in view of the evidence on the record and the finding of the learned Magistrate that the respondent was at the material time a natural born British subject within the meaning of S. 2 (a) (i) of the Foreigners Act of 1946. Therefore, even assuming that the respondent was not a citizen of India, still he was not a foreigner as defined in the Act inasmuch as he was a natural born British subject within the meaning of S. 2 (a) (i) of the Act. Therefore, even assuming that the respondent was not a citizen of India, still he was not a foreigner as defined in the Act inasmuch as he was a natural born British subject within the meaning of S. 2 (a) (i) of the Act. (12) The learned Government Pleader tried to construe the three clauses of the definition as meaning that if a person was not a citizen of India, then even though he was a natural born British subject or had obtained a certificate of naturalization as required by CL (i) or by Cl. (ii) of S. 2 (a) of the Act, he must nevertheless be deemed to be a foreigner. We do not think that it is possible to put any such construction upon the three clauses mentioned in the definition. In Union of India v. Hasanali, 56 Bom LR 552, it was held that the Foreigners Act, 1946 did not authorise the Government to extern all non-citizens and the only person who could be externed under the provisions of the Act was a person who was a foreigner as defined by the Act. In the course of the judgment the learned Chief Justice observed that it is possible for a person not to be a citizen and yet not to be a foreigner within the meaning of the Act. (13) It may be noted that S. 2(a) of the Foreigners Act, 1946, was amended by the Foreigners Laws. (Amendment) Act, 1.957, which came into force on 19-1-1957. By this Amendment Act, Cls. (i) and (ii) in S. 2 (a) were deleted and "Foreigner" was defined as meaning only a person who was not a citizen of India. But this Amendment Act came into force long after the respondent entered India. We have to determine whether the respondent was a foreigner by reference to the definition as it was in force when he entered in India; and in view of the undisputed position that he was a natural born British subject within the meaning of S. 2 (a) Cl. (i) of the Act, it must be held that he was not a foreigner and therefore not obliged to comply with the provisions of paragraph 7 of the Foreigners Order, 1948. (i) of the Act, it must be held that he was not a foreigner and therefore not obliged to comply with the provisions of paragraph 7 of the Foreigners Order, 1948. Further even assuming that the respondent was a foreigner on the date of his arrival in India, it is not clear in what respect there has been any contravention of paragraph (rule) 7 of the Foreigners Order 1948. It is not the prosecution case that the respondent contravened the provisions of paragraph (rule) 7 in that! he failed to obtain from the Registration Officer a permit indicating the period during which he was authorised to remain in India. It is also not the gravamen of the charge. It is also not disputed that there was no permit ever obtained by the respondent from the Registration Officer. The learned Government Pleader suggests that there was a failure on the part of the respondent to depart from India before the expiry of the said period as mentioned in paragraph (rule) 7 of the Foreigners Order 1948 and therefore there was a contravention of the provisions; of the said paragraph. We cannot accept this suggestion. The words "the said period" occurring in the paragraph must refer to the period indicated in the permit. When there was no permit and when failure! to obtain such permit was never made the ground of the present complaint, we do not see how any failure to depart from India before the expiry of the period indicated in such permit could ever occur and could be made a basis of the complaint as suggested by the learned Government Pleader. (14) The learned Government Pleader further suggested that even though it was true that no permit had been obtained by the respondent from the requisite authority and failure to obtain such permit had not been made the subject matter of the present complaint or the charge, all what paragraph (rule) 7, mentioned was that the foreigner should depart from India before the expiry of the period mentioned in the Visa itself. In other words, the contention of the learned Government Pleader was that the "period" referred to in the paragraph was the period mentioned primarily in the Visa and that such period had only to be restated in the permit. In other words, the contention of the learned Government Pleader was that the "period" referred to in the paragraph was the period mentioned primarily in the Visa and that such period had only to be restated in the permit. If therefore there was no departure from India before the expiry of the period mentioned in the Visa, there was contravention of the provisions of paragraph 7 of the Foreigners Order 1948 which was made punishable under S. 14 of the Act. We do not think that this . contention is right. The paragraph expressly refers to the period indicated in the permit and not to the period mentioned in the Visa. The Visa only mentions that it is valid for three months from the date of entry in India. The date of the issue of Visa and the date of entry in India cannot in most cases be the same. It is only when a foreigner enters India, that paragraph of the Foreigners Order 1948 makes it incumbent upon him to approach the Registration Officer and obtain a permit from him indicating the | period during which he is authorised to remain in India. This period obviously has to be computed from the date of his entering India which is known • only after he arrives in India. (15) Then it was further argued that the notice which was issued by the District Police Superintendent of Broach on 21-6-1957 was in the nature of a direction given in pursuance of a valid order and the contravention thereof was contravention of the provisions of the Act in view of S. 13 of the Act. It is true that the Central Government could delegate its powers under S. 3 to any authority subordinate to it. The Notification S.R.O. No. 1562 issued by the Government of India, so far as material, states that in exercise of the powers conferred by Cl. (i) of Art.) 258 of the Constitution, "the President with the consent of the Government of ......... Bombay hereby entrusts to that Government the functions of the Central Government in making orders of the nature specified in Cl. (i) of Art.) 258 of the Constitution, "the President with the consent of the Government of ......... Bombay hereby entrusts to that Government the functions of the Central Government in making orders of the nature specified in Cl. (c) of sub-s. (2) of S. 3 of the Foreigners Act, 1946 (XXXI of 1946) in respect of foreigners other than enemy foreigners as defined in the Enemy Foreigners Order, 1939, subject to the following conditions namely : (1) that notwithstanding this entrustment the Central Government may itself exercise the said function either generally or in any particutar case or class of case, and (2) that the State Government shall not exercise the said function in a manner inconsistent with any orders which have been, or may hereafter be, issued by the Central Government under the said Act." In view of that Notification we can proceed on the basis that the State Government has got the power of making appropriate order under S. 3 (2) (c) of the Act. (16) But so far as the record of the present case stands, we do not find any such order produced on behalf of the prosecution. The learned Government! Pleader contends that inasmuch as a notice was issued to the respondent by the Dist. Police Superintendent of Broach that notice must have been given only in pursuance of a valid order of the State Government. It is not possible to accept this contention. In the first place, there is no reference to any such order in the notice given by the Dist. Police Superintendent of Broach; nor is there any mention of any such order either in the written complaint or in the charge. What is mentioned in the charge is only the notice of Dist. Police Superintendent. In the absence of any reference to any order of the States Government in the evidence of the present case, it is requisite order and had further given directions to the Dist. Police Superintendent of Broach to give the notice which he issued on 21-6-1957. Besides, the evidence on record does not show and the complaint and the charge1 do not even mention that the order of the State Government (if it existed) was brought to the notice of the respondent before he was charged with contravention thereof or of any direction given in pursuance thereof. Besides, the evidence on record does not show and the complaint and the charge1 do not even mention that the order of the State Government (if it existed) was brought to the notice of the respondent before he was charged with contravention thereof or of any direction given in pursuance thereof. It must therefore be held that the respondent was neither guilty of any contravention of the provisions of paragraph (rule) 7 of the Foreigners Order, 1948, nor of the provisions of S. 13 of the Foreigners Act, 1946. (17) The learned Government Pleader, made a grievance that the points upon which we are disposing of the appeal were entirely new and we should not therefore consider and give effect to them for the first time in appeal. But it may be noted that these points suggested themselves to us as we proceeded to hear the arguments of the learned Government Pleader and were also urged by the learned Advocate on behalf of the respondent. These points could be considered and disposed of on the facts already proved and admitted in the case and the respondent In an appeal against acquittal could support the order of acquittal on any grounds available to him if those grounds did not necessitate any further investigation into facts. (18) The result is that the order of acquittal is confirmed and the appeal fails and must be dismissed. Appeal dismissed.