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2008 DIGILAW 1001 (CAL)

Md. Elahi v. STATE OF WEST BENGAL

2008-11-12

ASHIM KUMAR ROY

body2008
JUDGMENT:- (1.) In this criminal revision, the petitioner invoking inherent jurisdiction of this Court, challenged his prosecution under Section 14 of the Foreigners Act, in connection with the G. R. Case No. 44/08 now pending before the learned Metropolitan Magistrate, 14th Court, Kolkata arising out of Burrabazar Police Station Case No.8 dated January 9, 2008 and prayed for quashing of the said proceedings. (2.) Mr. Amitava Ghosh, the learned Advocate, appearing in support of this application vehemently urged before this Court that the petitioner has been falsely implicated in the aforesaid case by the police. He further urged that the impugned proceeding under Section 14 of the Foreigners Act, having been initiated against the petitioner without determination of the question of his citizenship in accordance with Section 9(2) of the Citizenship Act read with Rule 30 of the Citizenship Rules by the Central Government, the competent authority is patently illegal and not tenable. In support of his submission Mr. Ghosh vehemently relied on a decision of our High Court in the case of Haridas Roy and Anr. v. Stafe of West Bengal, reported in 2000 Calcutta Criminal Law Reporter (Cal) 418. He draws the observation of this Court in Paragraphs-8 and 10 of the said decision and same are quoted below:- "I find that the petitioners have faced the trial in connection with G. R. Case No. 80 of 1999 under Section 14 of the said Act and at the conclusion of the trial just on the eve of pronouncing the judgment, the learned Sub-Divisional Judicial, Magistrate found that there is no determination of the citizenship of the accused by the competent authority and accordingly directed them to apply before the Central Government for the said purpose." (para 8) "I find in view of the decision of this Court in the case of Mrs. Raushan Ara @ Suraiya (supra) it is incumbent upon the prosecution to ascertain the determination by the Central Government is a condition precedent before initiating a proceeding under the said Act. In such view of the matter, since the learned Sub-Divisional Judicial Magistrate at the terminal point of the trial had passed this order, the ratio of the said decision in the case of Mrs. Raushan Ara @ Suraiya (supra) squarely applies and the order passed by the learned Magistrate cannot be sustained." (Para 10) (3.) Similarly Mr. In such view of the matter, since the learned Sub-Divisional Judicial Magistrate at the terminal point of the trial had passed this order, the ratio of the said decision in the case of Mrs. Raushan Ara @ Suraiya (supra) squarely applies and the order passed by the learned Magistrate cannot be sustained." (Para 10) (3.) Similarly Mr. Ghosh relied another decision of our High Court in the case of Mrs. Raushan Ara @ Suraiya v. State of West Bengal, reported in 1996 Calcutta Criminal Law Reporter (Cal) 223 for our case the observation of the Court in Paragraphs-9 and 11 of the said decision and same is quoted below:-"I have heard the learned Advocate appearing for the petitioner and also the learned Advocate appearing for the State. On the point of fact learned Advocate appearing for the petitioner has produced xerox copies of number of document to show that since her birth in Calcutta, she is perusing her studies in Calcutta till she left the same for Karachi on her marriage on 9.10.93. It has been argued that the petitioner being an Indian citizen, the citizenship was not lost merely by her migrating to Pakistan after her marriage. It is contended that mere acquisition of a Pakistani passport under compulsion by her in-laws cannot take away her citizenship in India. It is also argued that the question of petitioner continuing to remain an Indian citizen or acquiring citizenship of another country in this case Pakistan can be determined by the Central Government alone in accordance with Section 9 (2) of the Citizenship Act read with Rule 30 of the Citizenship Rules. It is contended that such determination has not been made as yet and as such initiation of a case under Section 14 of the Foreigners Act is bad-in-law. In support of his contention the learned Advocate amongst others has relied on decisions reported in 1971 Cr LJ 1103 and also 1963 Supreme Court Appeals, 649 on the basis of the said decisions it has been argued that in the absence of a determination in accordance with Section 9 (2) of the Citizenship Act read with Rule 30 of the Citizenship Rules, it cannot be state that she has lost her citizenship in India or she has acquired citizenship of Pakistan. It has also been contended that she came to India on the basis of a valid passport and visa and before the expiry of the period mentioned in the visa she applied to the proper authority for extension of the same and inspite of repeated sittings no decision was taken or communicate by the enquiring authority to her. On the other hand, she was put under arrest after she was called to attend the Office of a Police Officer and a Criminal Case under Section 14 of the Foreigners Act was started against her. It is contended on the basis of Articles 7 and 9 of the Constitution of India that her citizenship cannot automatically come to an end in the facts and circumstances of the case", (para 9) "After giving my careful consideration to the submissions of both the side and having regard to the law as laid down by the cited decisions it can at once be said without going into the merit of rejection of an application under Section 321, Cr.P.C. In this particular case, that the initiation of a proceeding under the Foreigners Act against the petitioner is not at all tenable in law. That the petitioner is originally a citizen of India by birth cannot be disputed. It is true, that in October, 1993 she migrated to Pakistan to her matrimonial home following her marriage with a Pakistani national. During her stay in the matrimonial home she visited Calcutta on the strength of a Pakistani passport and visa allowed by the Government of India and stayed in India for six (6) months. In the present case her entrance to India is not a clandestine affair but she came on the strength of a valid Pakistani passport and a visa granted by the Government of India. She applied for extension of the visa before its expiry and fully co-operated with the enquiring authority by producing documents including Ration Cards in her favour. The said authority neither rejected nor allowed the prayer for extension but started a case under the Foreigners Act against her and put her behind the bar. She applied for extension of the visa before its expiry and fully co-operated with the enquiring authority by producing documents including Ration Cards in her favour. The said authority neither rejected nor allowed the prayer for extension but started a case under the Foreigners Act against her and put her behind the bar. There being no determination by the Central Government being the only authority in accordance with Section 9 (2) of the Citizenship Act read with Rule 30 of the Citizenship Rules that she has lost Indian Citizenship and that she is a Foreign nationals, her Indian Citizenship stands good and as such no criminal prosecution can lie against her in accordance with the Foreigners Act. As such the continuance of such a proceeding is absolutely an abuse of process of the Court." (para 11) (4.) On the other hand, Mr. Mullick strenuously resisted the submission of Mr. Ghosh and submitted that the present petitioner is a foreign national, a Bangladeshi Citizen he without any valid authority of law entered into the territory of India and as such he is very correctly prosecuted under Section 14 of the Foreigners Act. He further submitted the aforesaid decisions has no manner of application in the instant case. (5.) Considered the rival submissions of the parties and the materials-on-record as well as the case laws relied upon by them. (6.) It appears both the aforesaid two decisions, viz. Haridas Roy and Anr. v. State of West Bengal (supra) and Mrs. Raushan Ara @ Suraiya v. State of West Bengal (supra), rendered by our High Court based on the law as laid down by the Honble Apex Court in the case of State of U.P. v. Rahamatullah, reported in AIR 1971 SC 1382 . It appears to me that for just decision of this case it would be apposite to refer a few of the observations made by the Apex Court in Paragraphs-9, 10, 11, 12 and 13 in the case of State of U.P. v. Rahamatullah (supra) and same is quoted below:- As will presently be shown the real question which arises for our decision lies in a short compass and the relevant facts essential for the decision are no longer in dispute. When the respondent entered India on April 1, 1955, he was in possession of a Pakistani passport and a visa to which no objection was taken by the Indian authorities. He did not enter India clandestinely, and he is not being tried for having entered India in violation of any law. Indeed his visa was admittedly extended by the appropriate authority upto May 22, 1965. As he was clearly a citizen of India at the commencement of the Constitution and the question arose whether he had lost Indian citizenship thereafter, the Central Government had to determine under Section 9 of the Citizenship Act the question of the acquisition of Pakistan nationality by the respondent. This Court in Government of Andhra Pradesh v. Syed Mohd. Khan, 1962 Supp (3) SCR 288: AIR 1962 SC 1778 after referring to its earlier decision in Izhar Ahmad Khan v. Union of India, 1962 Supp (3) SCR 235 : AIR 1962 SC 1052 made the following observation: "Indeed, it is clear that in the course of the judgment, this Court has emphasized the fact 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 Government and it is only after the Central Government has decided the point that the State Government can deal with the person as a foreigner. It may be that if a passport from a foreign Government is obtained by a citizen and the case falls under the impugned Rule, the conclusion may follow that he has acquired the citizenship of the foreign country; but that conclusion can be drawn only by the appropriate authority authorized under the Act to enquire into the 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 have 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-Ill and deal with the matter in accordance with the other relevant Rules framed under the Act. In dealing with the question, the Central Government would undoubtedly be entitled to give effect to the impugned Rule 3 in Schedule-Ill and deal with the matter in accordance with the other relevant Rules framed under the Act. The decision of the Central Government about the status of the person is the basis on which any further action can be taken against him." In that case an argument was raised on the authority of Izhar Ahmad Khans case, 1962 Supp (3) SCR 235 : AIR 1962 SC 1052 that as soon a person acquired a passport from a foreign Government his citizenship of India automatically came to an end, but it was repelled, (para 9) In State of Andhra Pradesh v. Abdul Khader, 1962 (1) SCR 737 : AIR 1961 SG 1467 the respondent there was born in India in 1924 and had lived in this country all along till about the end of 1954. At the end of 1954 or the beginning of 1955 he went to Pakistan from where he returned on January 20, 1955 on a passport granted by the Pakistan Government which had a visa endorsed on it by the Indian authorities permitting him to stay in this country up to April 1955. He applied to the Central Government for extension of the time allowed by the visa, but there was no material to show what orders, if any, were made on it. The respondent having stayed in this country beyond the time specified in the visa, on September 3, 1957 he was served with an order under Section 3 (2)(c) of the Foreigners Act, requiring him to leave India. On his failure to comply with this order he was prosecuted under Section 14 of the Foreigners Act. His defence was that he was an Indian national. The Magistrate trying him rejected his defence and convicted him holding that he had disowned Indian nationality by obtaining a Pakistan passport and that by refusing to extend the time fixed by the visa the Central Government had decided that the respondent was a foreigner under Section 8 of the Foreigners Act and that such a decision was final. He was convicted by the trial Court and the conviction was upheld by the Sessions Judge. The High Court in revision set aside his conviction. He was convicted by the trial Court and the conviction was upheld by the Sessions Judge. The High Court in revision set aside his conviction. On appeal this Court held that neither the Magistrate nor the Sessions Judge was competent to come to a finding of his own that the respondent, an Indian national had disowned his nationality and acquired Pakistan nationality for under Section 9 (2) of the Citizenship Act that decision could only be made by the prescribed authority. The respondent in that case, according to this Court, had become and Indian citizen under Article 5 (a) of the Constitution when it came into force and there being no determination by the Central Government that he had lost his nationality thereafter, the order of the High Court acquitting him was upheld (para 10) In Shuja-Ud-Din v. Union of India, C.A. No. 294 of 1962, D/-30.10.1962 (SC) this Court speaking through Gajendragadkar, J., as he then was, said: "It is now well settled that the question as to whether a person who was a citizen of this country on January 26, 1950, has lost his citizenship thereafter, has to be determined under the provisions of Section 9 of the Citizenship Act, 1955 (No. LVll of 1955). There is also no doubt that this question has to be decided by the Central Government as provided by Rule 30 of the Rules framed under the Citizenship Act in 1956. The validity of Section 9 as well as of Rule 30 has been upheld by this Court in the case of 1962 Supp (3) SCR 235: AIR 1962 SC 1052 . It has also been held by this Court in State of Madhya Pradesh v. Peer Mohd., Cri. Appeal No. 12 of 1961 decided on 28.9.1962 : reported in AIR 1963 SC 645 that this question has to be determined by the Central Government before a person who was a citizen of India on January 26, 1950, could be deported on the ground that he has lost his citizenship rights thereafter under Section 9 of the Citizenship Act. Unless the Central Government decides this question, such a person cannot be treated as a foreigner and cannot be deported from the territories of India." (para 11) In Abdul Sattar Haji Ibrahim Patel v. State of Gujarat, Cr. Unless the Central Government decides this question, such a person cannot be treated as a foreigner and cannot be deported from the territories of India." (para 11) In Abdul Sattar Haji Ibrahim Patel v. State of Gujarat, Cr. A. No. 153 of 1961, D/-17.2.1964 (SC), Gajendragadkar, C. J., speaking for a bench of five Judges approved the decisions in the cases of lzhar Ahmad Khan, 1962 Supp (3) SCR 235 : AIR 1962 SC 1052 and Syed Mohd. Khan, 1962 Supp (3) SCR 288: AIR 1962 SC 1778 it being emphasized that the decision of the Government of India is a condition precedent to the prosecution by the State of any person on the basis that he has lost his citizenship of India and has acquired that of a foreign country. That an inquiry under Section 9 of the Citizenship Act can only be held by the Central Government was again re-affirmed by this Court in Mohd. Ayub Khan v. Commr. of Police, Madras, 1965 (2) SCR 884 : AIR 1965 SC 1623 . (Para 12) In view of these decisions 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 a national of Pakistan. (Para 13) (7.) In view of the decision of the Apex Court in the case of State of U.P. v. Rahamatullah (supra), till the Central Government, being the competent authority under Section 9 (2) of the Citizenship Act read with Rule 30 of the Citizenship Rules, determined the question of any person being a citizen of India having acquired the citizenship of a foreign country, had thereby lost Indian Citizenship, no prosecution can be initiated against him as foreigner. In other words, no prosecution under Section 14 of the Foreigners Act against any Indian Citizen, when according to the prosecution he has lost his citizenship by acquiring the citizenship of a Foreign Country can be initiated, without termination of his Indian Citizenship by the Central Government being the competent authority under Section 9 (2) of the Citizenship Act read with Rule 30 of the Citizenship Rule. Thus, the Section 9 of the Citizenship Act applies to a situation where the question is whether an Indian Citizen lost his citizenship by acquiring the citizenship of a foreign, not where a foreigner clandestinely entered India and as staying there. So far as this case is concerned the petitioner who is a Bangladeshi national, a foreigner, having illegally crossed the International Border has taken shelter in the State. The question of loss of Indian citizenship on account of acquisition of citizenship of a foreign country is not an issue in the instant case as such the question of decision of the Central Government under Section 9 (2) of the Citizenship Act read with Rule 30 of the Citizenship Rules is not at all called for. (8.) It is no bodies case that the petitioner was originally an Indian Citizen and allegedly lost his Indian Citizenship upon acquisition of citizenship of a foreign country. (9.) This criminal revision has no merit and stands dismissed.