Mohd. Deen v. State of Rajasthan — 1999 DIGILAW 1065 (RAJ)

Honble GUPTA, J.–This misc. petition u/S. 482 Cr.P.C. is directed against the order dated 18.11.88 passed by the learned Judicial Magistrate, Anupgarh, whereby he framed charges u/Sec. 3/14 of the Foreigners Act and Rule 3/6 of the Indian Passport Rules. (2). The contention of Mr. Purohit, learned counsel for the petitioners, was that u/S. 9 of the Citizenship Act, the Central Govt. is competent to decide the question of citizenship of the petitioners and without such decision of the Central Govt. the petitioners no.1 to 8 could not be prosecuted. Relying on the cases of State of Madhya Pradesh vs. Peer Mohd. (1) and State of Gujarat vs. Yakub Ibrahim (2) he canvassed that the charges framed against the petitioners and subsequent pro- ceedings be quashed. (3). The learned P.P. tried to support the order of the charge. (4). The relevant facts: On 16.9.88 Shri Satyavan Singh, H.C.- 68198427 DCOY 9th Battalion, BSF, Bijor Out-post and his party were patrolling the boundary line of India. They noticed ten persons including petitioners no.1 to 8 coming from Pakis- tan side and entering the Indian territory. On accosting, the intruders (petitioners No. 1 to 8 ) disclosed that they were residents of village Hasalpur, District Bhavalpur in Pakistan. They were carrying currency notes, tape recorders, cassettes, Hukka, clothes, steel utensils and ornaments etc. with them. The BSF party took those articles in its possession, and produced the petitioners No.1 to 8 and two others be- fore the S.H.O. Anupgarh along with the articles recovered from them, and lodged a written report. The police registered a case u/s. 3/14 of the Foreigners Act and Sec. 3/6 of the Indian Passport Rules and arrested the petitioners and two others who were children of Kasam r/o Khuvari, P.S. Chhatargarh (India) was arrested on the allegations that he had harboured the foreign nationals. After the completion of the investigation, a challan was filed against the petitioners. The case against two minor intruders was filed in the Juvenile Court. (5). By the impugned order, the learned Magistrate framed charges u/S. 3/14 of the Foreigners Act and 3/6 of the Indian Passport Rules against petitioners no.1 to 8 and under Sec. 13/14 of the Foreigners Act and 3/6 of the Indian Passport Rules against Kasam. All the nine accused petitioners pleaded not guilty. (6). (5). By the impugned order, the learned Magistrate framed charges u/S. 3/14 of the Foreigners Act and 3/6 of the Indian Passport Rules against petitioners no.1 to 8 and under Sec. 13/14 of the Foreigners Act and 3/6 of the Indian Passport Rules against Kasam. All the nine accused petitioners pleaded not guilty. (6). It is to be seen whether the Magistrate has committed any error in framing charges against the petitioners and proceeding with the trial of the case. (7). Under Sec. 3 of the Foreigners Act, 1946, the Central Government is empowered to make an order with respect to the foreigners. The Central Govern- ment is empowered to prohibit the entry of certain foreigners into India or restrict their entry in India. In exercise of the powers u/S. 3, the Central Government issued an order in 1948 known as Foreigners Order, 1948 published in Gazette of India 1948, PT I page 193 regulating the entry of the foreigners in India. Under para 3 of the Order of 1948, no foreigner can enter the territory of India without the leave of the civil authorities having jurisdiction at such place. The violation of the Order of 1948 is punishable u/S. 14 of the Foreigners Act of 1946. If any person attempts to contravene the provisions of the Act of 1946 or any Order issued thereunder or abets the contravention, his act falls under Sec.13 of the Act of the 1946, which is also punishable u/S. 14 of the said Act. (8). The gist of the provisions of the Foreigners Act, 1946 is that if any foreigner without the leave of authority, competent to grant such leave, enters into India he commits the offence punishable u/s. 14 r/w Sec.3 of the Act and if any Indian citizen abets the commission of offence by the foreigners, he commits an offence u/s. 14 read with Sec. 13 of the Act of 1946. (9). The prosecution case, in the F.I.R. and the investigation papers, is that the petitioners no. 1 to 8 were intercepted while they were crossing the borders between Pakistan and India and on questioning they disclosed their identity as the residents of a village in Pakistan. Undisputedly the petitioners were not having any document authorising their entry in India. (10). At the stage of framing charges, the Court is not required to consider the probable defence of the accused. Undisputedly the petitioners were not having any document authorising their entry in India. (10). At the stage of framing charges, the Court is not required to consider the probable defence of the accused. The Court at that stage is concerned with the prosecution case as disclosed by the investigation papers. If the prosecution case, as such, is accepted and there is no cause not to accept it at this stage, it has to be held that the petitioners No. 1 to 8 had committed offence u/S. 14 r/w Sec. 3 of the Foreigners Act, 1946. The learned Magistrate has thus not committed any error when he framed charges against the petitioners no.1 to 8 read with Sec. 3 of the Foreigners Act, 1946. So also, he has not erred when he framed charge u/s. 14 read with Sec. 13 of the Foreigners Act, 1946 against petitioner no.9. (11). Sec.9 of the Foreigners Act, 1946 provides that if any question arises whe- ther any person is or is not a foreigner, the onus of proving that he is not a foreigner shall lie upon that person. It is obvious that where a question arises that a particular person is foreigner or not , and it is not the prosecution case that the person was once Indian citizen, the matter can be decided by the Court, and Sec. 9 of Citizenship Act, 1955 does not apply to such matters. (12). In the case of State of Andhra Pradesh vs. Abdul Khader (3) the Constitutional Bench of the Apex Court held at Para 9 of the report as follows: ``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. (13). The observations make it clear that the question which is involved in the instant case can be decided by a Court. This question is not the one which falls within the exclusive jurisdiction of the Central Govt. u/S. 9 of the Citizenship Act. (14). The Courts can decide it. (13). The observations make it clear that the question which is involved in the instant case can be decided by a Court. This question is not the one which falls within the exclusive jurisdiction of the Central Govt. u/S. 9 of the Citizenship Act. (14). In the case of Abdul Sattar Haji Ibrahim Patel vs. State of Gujarat (4) the same principle was reiterated when it was observed at Para 10 of the report as follows:- ``The appellant is being prosecuted under s. 14 of the Foreigners Act, 1946 (No. XXXI of 1946). In determining the question as to whether he is a foreigner within the meaning of the said Act or not, Sec. 9 of the said Act will have to be borne in mind. Sec.9 applies to all cases under the Act which do not fall under Sec. 8, and this case does not fall under Sec. 8, and so, Sec. 9 is relevant. Under this section, the legislature has placed the burden of proof on a person who is accused of an offence punishable under Sec. 14. This section provides inter alia that where any question arises with reference to the said Act, or any order made, or direction given thereunder, whether any person is or is not a foreigner, the onus of proving that such a person is not a foreigner, shall notwithstanding anything contained in the Indian Evidence Act, lie upon such person; so that in the present proceedings in deciding the question as to whether the appellant was an Indian citizen within the meaning of Art. 5, the onus of proof will have to be placed on the appellant to show that he was domiciled in the territory of India on January 26, 1950 and that he satisfied one of the three conditions prescribed by cls. (a), (b) and (c) of the said Article. It is on this basis that the trial of the appellant will have to proceed. (15). This being the legal position, there is no merit in the contention of Mr. Purohit that there could not be prosecution of the petitioners No.1 to 8 u/S. 14 of the Foreigners Act, 1946. On the material on record, the charge u/Sec.14 r/w Sec.3 of the Foreigners Act, 1946 has been rightly framed against petitioners No. 1 to 8. (15). This being the legal position, there is no merit in the contention of Mr. Purohit that there could not be prosecution of the petitioners No.1 to 8 u/S. 14 of the Foreigners Act, 1946. On the material on record, the charge u/Sec.14 r/w Sec.3 of the Foreigners Act, 1946 has been rightly framed against petitioners No. 1 to 8. So also, the charge u/S. 14 read with Sec. 13 of the said Act has been rightly framed against petitioner no. 9 Kasam. (16). Now it is to be seen whether the rulings relied on by Mr. Purohit help the petitioners. (17). In the case of State of M.P. vs Peer Mohd. (supra) the interpretation of Sec. 9 (2) of the Citizenship Act, 1955 came up for consideration before their lordships. Sec. 9 of that Act provides that a citizen of India ceases to be a citizen of the country if he voluntarily acquires citizenship of another country. It is obvious Section 9 presupposes that the person was originally citizen of India . In the instant case, it is not the prosecution version that the petitioners were originally citizens of India and they had migrated to Pakistan. When it is not the case for the prosecution that the petitioners were originally citizens of India, the ruling interpreting Sec. 9 of the Citizenship Act is not of any help to the petitioners. (18). So also the case of State of Gujarat vs. Yakub Ibrahim (supra) does not help the petitioners at this stage. That was a case wherein, upon the facts set up, it became clear that the accused could not be prosecuted or convicted without the determination of his citizenship under Sec. 9 of the Citizenship Act, 1955. The question in that case was whether the accused had voluntarily acquired the citizenship of Pakistan. In that case the prosecution case was that the accused who was a foreigner was permitted to stay in India upto certain date but he did not depart from India before expiry of the date of the permit and thus he had contravened the provisions of Foreigners Order. The accused had produced his Pakistani passport and he had made an application to the High Commissioner for India in Pakistan that he had migrated from India to Pakistan in 1950. The accused had produced his Pakistani passport and he had made an application to the High Commissioner for India in Pakistan that he had migrated from India to Pakistan in 1950. It is significant to point out that case trial of the case was over and facts from both the sides had come on record. In is in these circumstances, the Apex Court held that the question of citizenship had arisen and that could not be decided by the Court. As already stated, the instant case is not of a person who was earlier the citizen of India and had migrated to Pakistan. Rather the prosecution case is that the petitioners were the residents of Pakistan itself and they had entered into India without any authority. The ruling, therefore, does not apply to instant case. (19). It may be the defence of the petitioners that their forefathers lived in India and there was land in the name of their forefathers but on that ground, the Courts jurisdiction to try the case is not ousted. For the present stage of the case, they are foreigners and burden lies on them to disprove this fact. (20). Coming to the charge under the Passport Rules, it may be stated that Rule 3 or 6 of the Passport Rules, 1980 do not provide for penal offence. They deal with procedural matters with regard to the issuance of passport. There is obvious error in the charges when a reference of Passport Rules has been made. (21). If we make an attempt to read Sec. 3 and 6 of the Passport Act, 1967 in place of Rules 3 & 6 of the Passport Rules in the charge framed by the trial Court, yet the charge cannot be allowed to stand. The provisions of Passport Act are applicable to the persons who depart from India. They are not applicable to the persons who enter into India. Therefore, the charge under Rule 3/6 of the Passport Rules is liable to be quashed. (22). Consequently, the petition is partly allowed. The charges under Rule 3/6 of the Passport Rules framed against the petitioners are hereby quashed. In other respects, the petition fails and is hereby dismissed.