STATE OF KERALA. v. C. K. KUNJU — 1988 DIGILAW 485 (KER)

Judgment :- 1. Respondent was charge-sheeted by the Sub Inspector of Police, Alathur for an offence punishable under S.14 of the Foreigners Act, 1946 for having overstayed in India in contravention of the provisions of S.3 (2) (c) thereof and tried before the Additional Judicial First Class Magistrate, Palghat in C.C. 214 of 1986. He was acquitted solely on the ground that the prosecution was without observing the principle of natural justice, following a Single Bench decision of the Andhra Pradesh High Court in P. Mohammad Khan v. State of Andhra Pradesh (1978 (2) (46) Andhra Weekly Reports 408). State has challenged the acquittal. 2. On facts there is no dispute. Though the respondent is an Indian by birth he migrated with family to Malaysia long ago and became a Malaysian National. He entered India on 19-12-1984 with a Malaysian passport and Indian visa dated 13-12-1984 valid till 18-3-1985. He is admittedly a foreigner and his stay in India from 19-3-1985 is illegal. He claimed to have applied for extension of visa but it was not ordered, he says. Reason for overstay which necessitated an application for extension is said to be illness. 3. S.2 (a) of the Foreigners Act as it now stands defines foreigner as a person who is not a citizen of India. S.3 (2) (c) authorises the Central Government to make orders considered necessary to provide that the foreigner shall not remain in India or in any prescribed area therein. Orders mentioned in S.3 are those detailed in the Appendices. Foreigners 0.1948 is one among them. Para 7 of the Order makes registration necessary under R.6 of the Registration of Foreigners Rule's, 1939. A permit indicating the period during which he is authorised to remain in India will have to be obtained. Unless the period indicated in the permit is got extended, the foreigner is bound to deport from India before the expiry of the period surrendering the permit. Any contravention of the provisions of the Act or of any Order made thereunder or any direction given in pursuance of the Act or Order is made punishable under S.14. 4. S.2 (a) of the Foreigners Act as it stood before amending Act 11 of 1957 which came into effect on 19-1-1957 defined foreigner as a person who (1) is not a natural born British subject as defined in sub-ss. 4. S.2 (a) of the Foreigners Act as it stood before amending Act 11 of 1957 which came into effect on 19-1-1957 defined foreigner as a person who (1) 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, 1914, or (2) has not been granted a certificate of naturalization as a British subject under any law for the time being in force in India, or (3) is not a citizen of India. 5. The Citizenship Act, 1955, published in the gazette on 30-12-1955 provides for registration of certain categories of persons, not already Indian Citizens by virtue of the Constitution or the provisions of the Citizenship Act, as citizens. Art.5 of the Constitution says who are all Indian citizens at the commencement of the Constitution. All those who are born or domiciled in India or either of whose parents are born in India or those who were ordinary residents of India for not less than five years immediately before the Constitution came within the category of citizens. S.9 (1) of the Citizenship Act enumerates the circumstances under which a citizen of India ceases to be so. That can happen by naturalisation, registration or otherwise voluntarily acquiring or has between 26-1-1950 and 30-12-1955 voluntarily acquired, the citizenship of another country. S.9 (2) says 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. I referred to those provisions for familiarisation only because on the basis of certain decisions based on those provisions, an argument was advanced that a prosecution will lie only after notice to quit India is given after passing the necessary orders and giving an opportunity of being heard. 6. The short question for consideration is whether an offence punishable under S.14 of the Foreigners Act is made out and if so the prosecution is in any way barred. Any contravention of any of the provisions of the Act, Orders or directions will come within the penal provision. There is no dispute that at the time of entry into India the respondent was a foreigner. Any contravention of any of the provisions of the Act, Orders or directions will come within the penal provision. There is no dispute that at the time of entry into India the respondent was a foreigner. The question of any order of the Central Government under S.9(2) of the Citizenship Act does not therefore arise. The period of permit for stay in India granted to the respondent admittedly expired on 18-3-'85. and there was no extension. Even though he claimed to have applied for extension, it is admitted that there is no order extending the permit. Therefore his stay is contravention of the provisions of the Foreigners Act and Order mentioned above and it is penal under S.14. The argument was that even then an order to quit and notice thereof with a right of hearing are necessary conditions precedent for prosecution. 7. Certain decisions are relied on in support. They are easily distinguishable. In Manohar Ali v. State (AIR 1971 Assam and Nagaland 25) a fresh order was held necessary in the following circumstances. The accused was an Indian citizen according to the definition of the Foreigners Act as it stood before the amendment of 1957 read with Art.5 (a) of the Constitution. He entered India on 3-10-1954 with a Pakistani passport and Indian visa but overstayed. He claimed to be an Indian national and not a foreigner when he was caught and prosecuted in 1965. That question itself had to be decided under S.9(2) of the Citizenship Act by the Central Government and on the basis of such an order it was necessary to order him to quit. 8. State of U. P. v. Rehmatullah (AIR 1971 SC 1382) also dealt with a case in which a man born in India but migrated to Pakistan entered India with a Pakistani passport dated 15-3-1955 and an Indian visa dated 22-3-1955 and overstayed after the permit period. When prosecuted under S.14 of the Foreigners Act he claimed to be an Indian national. It was during the trial of the case that the Central Government made an enquiry under S.9 (2) of the Citizenship Act read with R.30 of the Citizenship Rules, 1956 and issued the order on 9-11-1964 that he acquired Pakistan citizenship after 26-1-1950 and before 15-3-1955 on which date he secured the passport and hence he is not an Indian citizen. He was informed of that order in court during trial. The conviction and sentence by the trial court were confirmed by the Sessions Judge But the High Court held that he entered India with a Pakistan passport when he was an Indian according to the then definition of the Foreigners Act read with Art.5 (a) of the Constitution and hence his case was outside para 7 of the Foreigners Order made under S.3 of the Foreigners Act though he was a Foreigner under the amended definition at the time of the prosecution. Conviction was set aside and the decision was confirmed by the Supreme Court. 9. The Citizenship Act was also not there at the time of his entry. At the time when the Indian Constitution came into force on 26-1-1950 he was a citizen of India. Unless he lost his citizenship under law between the commencement of the Constitution and his entry he will continue to be an Indian citizen at the time of the entry. Loss of citizenship was pleaded only on the basis of his having obtained a Pakistani passport and further on the basis of the determination of the citizenship by the Central Government on 5-11-1964 under S.9 (2) of the Citizenship Act. His entry was not a clandestine one and he was an Indian citizen also then. Question arose whether his citizenship was lost because he claimed to be an Indian citizen. The Central Government had to decide it compulsorily under S.9 of the Citizenship Act. Only after such a decision and the finding by the Central Government that he lost his Indian citizenship and is a foreigner the State Government is entitled to deal with him as a foreigner. The decision of the Central Government as to the citizenship is the basis of the prosecution for the overstay. By merely obtaining a foreign passport the Indian citizenship will not automatically come to an end. It was so held in Izhar Ahmad v. Union of India (AIR 1962 SC 1052) and State of A.P. v. Abdulkhader (AIR 1961 SC 1467). The decision of the Central Government as to citizenship is a condition precedent in such cases for a prosecution under S.14 of the Foreigners Act. That decision may be on the basis of the amended definition under S.2 (a) of the Foreigners Act. Till that decision a man cannot be prosecuted as a foreigner. The decision of the Central Government as to citizenship is a condition precedent in such cases for a prosecution under S.14 of the Foreigners Act. That decision may be on the basis of the amended definition under S.2 (a) of the Foreigners Act. Till that decision a man cannot be prosecuted as a foreigner. When such a person who is staying in India after 19-1-1957 (when the amended definition came into force) on the basis of the entry made earlier, is declared to be a foreigner, he may have to be given a direction under S.3 of the Foreigners Act and the order issued thereunder to depart India and prosecution could be had only an disobeyance. Otherwise he can only be deported. In that case he was not even informed of the decision of the Central Government. Trial was going on when the decision was rendered. He was arrested and bailed out and he was not free to leave India on account of the conditions of bail. The decision of the Central Government, though final and conclusive and cannot be challenged in court, cannot have the effect of making the stay retrospectively penal. These are the basis of that decision. 10. Those aspects are not applicable in the case of a" person who is admittedly a foreigner at the time of entry and unauthorisedly overstays, in which case an enquiry under S.9 (2) of the Citizenship Act and a decision by the Central Government is not necessary. The mere overstayal is contravention of S.3 of the Foreigners Act and Foreigners Order. Notice to leave India is not necessary under the Act or Order as a condition precedent to prosecution. There is no provision in the Foreigners Act or Order enjoining that before a person is prosecuted a notice calling upon him to leave India must precede the prosecution. (State of U.P. v. Shamsul Huda (1971Crl. L.J. 977). The Supreme Court also held in State of Assam v. Jilkadar Ali (1972 (2) SCC 320) that by mere overstayal of visa the accused clearly committed breach of Clause.7 of the Foreigners Order, 1948 and is liable to be punished under S.14 of the Foreigners Act. 11. (State of U.P. v. Shamsul Huda (1971Crl. L.J. 977). The Supreme Court also held in State of Assam v. Jilkadar Ali (1972 (2) SCC 320) that by mere overstayal of visa the accused clearly committed breach of Clause.7 of the Foreigners Order, 1948 and is liable to be punished under S.14 of the Foreigners Act. 11. Ibrahim v. State of Rajasthan (1964 (7) SCR 441) is a case where a Pakistani national came over to India with a Pakistani passport and an Indian visa before amendment of S.2 (a) of the Foreigners Act. He was deported on 21-4-57. He again entered India without a passport. His contention that he is an Indian citizen and that he is not the person deported were found against. When the offence was committed he was a foreigner. If so it would be no excuse for him to say that on an earlier date he was not a foreigner. When he re-entered he was a foreigner under the amended provision and hence he committed an offence under S.3 of the Foreigners Act. Under S.9 of the Foreigners Act the onus is on him to prove that he is not a foreigner. It is only when there is proof that a person is, to start with a citizen of India and it is alleged that he has lost his Indian citizenship by reason of acquiring the nationality of a foreign State, that any question of invoking the provisions of S.9 (2) of the Citizenship Act arise. In that case prosecution and conviction were held proper. The decision in Moosa v. State of Kerala (1977 KLT 543) is also distinguishable because the question that arose was whether an Indian national lost his citizenship and the matter was pending consideration under S.9 (2) of the Citizenship Act. Ummayau v. Union of India 1987 (2) KLT 227) only said that when an application under S.9(2) of the Citizenship Act is pending it may not be proper to deport the person as a foreigner and that pendency of an application under S.5 (1) of the Citizenship Act for getting Indian citizenship is no ground to prevent his deportation. 12. Ummayau v. Union of India 1987 (2) KLT 227) only said that when an application under S.9(2) of the Citizenship Act is pending it may not be proper to deport the person as a foreigner and that pendency of an application under S.5 (1) of the Citizenship Act for getting Indian citizenship is no ground to prevent his deportation. 12. Some inappropriate passages from a Single Bench decision of the Andhra Pradesh High Court in P. Mohammad Khan's case (1978 (2) (46) Andra Weekly Reporter 408) were quoted by the Magistrate without understanding the context in which and the purpose for which they were used in order to find that the prosecution is premature and as such not maintainable for the reason that in prosecuting the respondent the District Superintendent of Police did not observe the basic principle of natural justice. In that case the person involved was born in Baluchistan within the then territory of India, now included in Pakistan. He came to India in 1943 after the death of his parents and continued to reside in India. He married there in 1968 and has four daughters. He acquired properties also in India. While so after a lapse of 33 years of stay in India, he was served with an order under S.3 (2) (c) of the Foreigners Act requiring him not to remain in India. He was not given notice or any opportunity of being heard before passing the order. If he was given notice in that case and heard before passing the impugned order he could have contended that he is an Indian citizen who is not liable to be treated as a foreigner and deported. If that claim is challenged on the ground that he lost Indian citizenship by reason of acquiring Pakistani citizenship, an order of the Central Government under S.9 (2) of the Citizenship Act was necessary before passing the impugned order directing him to quit India. The decision cited by the Magistrate was rendered when the order was challenged. It was held that even an administrative order without observing the principle of natural justice and fairplay is bad. That is based on the rule of "audi alteram partem" that no man shall be condemned unheard. It is not possible to take exception to that rule. 13. The decision cited by the Magistrate was rendered when the order was challenged. It was held that even an administrative order without observing the principle of natural justice and fairplay is bad. That is based on the rule of "audi alteram partem" that no man shall be condemned unheard. It is not possible to take exception to that rule. 13. But we are dealing with a case where the respondent is prosecuted and tried for contravention of S.3 (2) (c) of the Foreigners Act read with para 7 of the Foreigners Order which is an offence punishable under S.14 of the Act. It is admitted that he is a foreigner and he overstayed without authority. A fresh order or a notice to quit India are not necessary to prosecute him for the completed offence committed by him. The only question is whether the prosecution is justified when he says that the overstay was on account of sudden illness and an application for extension filed by him was not disposed of. That can have effect only in considering the question of sentencing discretion. So long as the permit is not extended the stay is unauthorised and all the ingredients of the offence are there because the contravention is there. Under para 7 (3) (iii) of the Foreigners Order, unless the period indicated in the permit is extended the foreigner is bound to deport from India before the expiry of the period. Prosecution need not await orders on the extension application. It is not premature also. While following principles laid down in decisions it is necessary to consider the context and purpose to decide whether they are applicable to the case in hand. Principles laid down while considering the validity of a judicial, quasi-judicial or administrative order passed without observing the principles of natural justice cannot be applied to a prosecution for having committed an offence. A person prosecuted will be convicted only after a full trial and only if he is found guilty. Otherwise the prosecution will fail. Trial and conviction will be only according to due process of law and procedure established by law. Sufficient safeguards for observing the principles of natural justice are there. A notice and hearing before launching prosecution need be had only in cases where such a statutory requirement is there. Otherwise the prosecution will fail. Trial and conviction will be only according to due process of law and procedure established by law. Sufficient safeguards for observing the principles of natural justice are there. A notice and hearing before launching prosecution need be had only in cases where such a statutory requirement is there. If such a rule is insisted even otherwise, there must be a preprosecution notice to the proposed accused, the formality of a hearing to him and an order as to the necessity or justification of the prosecution with notice to him in every case whether instituted on a police reporter otherwise and the absence of it must vitiate the prosecution and entril its failure even in cases when offence is established. That does not appear to be the legal requirement under the Foreigners Act or Order or other penal provisions where such a requirement is not insisted. Otherwise a complainant or a police officer or a first informant or any other person launching a prosecution or setting criminal law in motion could do so only after these formalities are observed and the accused is informed that his objections are not tenable and a prosecution is justified. The conclusion of the Magistrate is not legal. 14. It follows from the above discussion that the contravention which amounts to the offence punishable under S.14 of the Foreigners Act is established. Whether the respondent has to be straight away convicted and sentenced is the question. The counsel said that the respondent purchased ticket and made arrangements to go even before expiry of his permit period, but he fell ill and hence was not able to go and an application for extension was filed. Nobody could tell me what happened to that application. The counsel said he is not sure whether by this time the respondent left India or not. Without ascertaining these facts I think that it may be improper on my part to convict and sentence the respondent. The criminal appeal is therefore allowed and the acquittal is set aside. In case extension of time is not granted the overstay by the respondent is found to be an offence punishable under S.14 of the Foreigners Act. Without ascertaining these facts I think that it may be improper on my part to convict and sentence the respondent. The criminal appeal is therefore allowed and the acquittal is set aside. In case extension of time is not granted the overstay by the respondent is found to be an offence punishable under S.14 of the Foreigners Act. There will be a direction to the authority before whom the application for extension, if any, is pending to dispose of the same on the merits within one month from the date of intimation of this direction and give notice of the decision to the trial Magistrate, if it has not already been disposed of. On the basis of that decision the Magistrate will dispose of the case on the merits subject to the above finding. If the application for extension is allowed and it turns out that there is no contravention at all the accused has only to be acquitted. Even in case of conviction the Magistrate will be free to take into account the fact of the accused having already left India if that is the position as doubted by the counsel. The above . direction will be forth-with intimated to the authority before whom the application, if any, is pending. For the purposes mentioned above the case is remanded. Office will transmit the records forthwith and the parties will appear before the trial court on 1-11-1988. In order to avoid doubts it is made clear that what is found is only that the overstay in the absence of extension will be an offence punishable under S.14.