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2021 DIGILAW 238 (GAU)

Rina Rani Das v. Union of India

2021-03-10

N.KOTISWAR SINGH, SOUMITRA SAIKIA

body2021
JUDGMENT : N. Kotiswar Singh, J. 1. Heard Mr. B. Chowdhury, learned counsel for the petitioner. Also heard Mr. S.K. Medhi, learned CGC, appearing for respondent No. 1, Mr. G. Sarma, learned State counsel appearing for respondent Nos. 2, 5 and 6; Ms. B. Das, learned standing counsel, ECI, appearing for respondent No. 3 and Ms. L. Devi, learned standing counsel, NRC, appearing for respondent No. 4. 2. The present petition has been filed challenging the impugned ex-parte order dated 05.06.2014 passed by the learned Member, Foreigners' Tribunal (2nd), Sonitpur, Tezpur, Assam, in F.T. Case No. 284/2012 (S.P. Case No. 1598/2002), by which one Smt. Rima Das, W/O. Sri Dinesh Das, Village-Brahmajan, PS-Gohpur, District-Sonitpur, Assam, has been declared as a foreigner. 3. The petitioner claims that though the petitioner received a notice from the Foreigners' Tribunal, it was addressed to Smt. Rima Das, W/O. Dinesh Das, R/o. Brahmajan, PS-Gohpur, District-Sonitpur (Assam). It has been submitted that though the present petitioner is not "Rima Das", but "Rina Rani Das", as the description of the husband and the address bears resemblance, the petitioner accepted the said notice. However, subsequently realising that the proceedee, "Rima Das" is not the petitioner, i.e., "Rina Rani Das", the petitioner did not attend the proceeding before the Tribunal. In the meantime, the learned Foreigners' Tribunal on the basis of the said notice which was served upon the petitioner, proceeded ex-parte and held the proceedee as a foreigner, who had entered India after 25.03.1971, vide its ex-parte order dated 05.06.2014. 4. Learned counsel for the petitioner submits that the petitioner would not have approached this Court, but for the fact that the police have started looking for her on the strength of the said ex-parte order dated 05.06.2014 passed in F.T. Case No. 284/2012. Though the name of the proceedee is one Smt. Rima Das, because of the fact that the proceedee also has been described as the wife of Sri Dinesh Das, resident of Brahmajan, PS-Gohpur, District-Sonitpur, Assam, who is the husband of the petitioner, the petitioner has been put into a dilemma and serious inconveniences. 5. Learned counsel for the petitioner further submits that even if the petitioner is said to be the said proceedee, as mentioned in the notice, the proceeding had been initiated on the allegation that the proceedee had entered India between 01.01.1966 and before 25.03.1971 and not an immigrant of post 25.03.1971. 5. Learned counsel for the petitioner further submits that even if the petitioner is said to be the said proceedee, as mentioned in the notice, the proceeding had been initiated on the allegation that the proceedee had entered India between 01.01.1966 and before 25.03.1971 and not an immigrant of post 25.03.1971. Thus, even if it is assumed, though not admitted, that the proceedee entered India between the aforesaid period of 01.01.1966 and before 25.03.1971, such a proceedee would be protected from deportation or being declared a foreigner permanently, since, as such a person can register himself/herself with the competent registering authority and thereafter, get citizenship of this country after 10 years of such declaration as provided under Section 6A of the Citizenship Act, 1955. However, the learned Tribunal, instead of examining the said issue in the reference as mentioned in the notice that the proceedee is an entrant during the aforesaid period of 01.01.1966 and before 25.03.1971, proceeded to give an ex-parte finding that the proceedee is a post 25.03.1971 entrant in Assam. Accordingly, the learned counsel for the petitioner submits that the opinion is illegal, apart from the fact that it was ex-parte. Accordingly, the petitioner has challenged the ex-parte order dated 05.06.2014. It has been submitted that if necessary, the petitioner may be given an opportunity to explain before the Tribunal that she is a genuine Indian citizen, so that the cloud created by the ex-parte order dated 05.06.2014 passed by the learned Foreigners' Tribunal (2nd), Sonitpur, Tezpur, Assam, is lifted. 6. Having heard the learned counsel for the parties and also upon perusal of the materials on record, we are also of the opinion that if the contention of the petitioner is true that she is not "Rima Das", but "Rina Rani Das", as contended before us, the aforesaid opinion of the Tribunal will be of no consequence as far as the petitioner is concerned. However, since the said proceedee Smt. Rima Das has been described as the wife of Sri Dinesh Das, resident of Brahmajan, PS-Gohpur, District-Sonitpur, Assam and since the petitioner's husband also bears the same name with the same residential address, this can create problems for her subsequently because of the similarity in the address and the name of the husband of the proceedee as well as the petitioner. 7. 7. We have also noted that though as per the notice, the allegation against the proceedee was that the proceedee had entered illegally without any valid document from Bangladesh to Assam and staying from 01.01.1966 to 25.03.1971, the Tribunal rather than examining whether the proceedee came during the aforesaid period, gave the ex-parte opinion that the proceedee had entered Assam, India illegally on or after 25.03.1971. 8. For the aforesaid reasons, we are of the view that the ex-parte opinion of the Tribunal will not be applicable to the petitioner. However, since, in view of the confusions, misunderstandings and inconveniences which may be caused to the petitioner, on account of the similarity of the name of the petitioner's husband and address, and as the petitioner herself has volunteered to approach the learned Foreigners' Tribunal (2nd), Sonitpur, Tezpur, to clarify the matter, the petitioner may approach the Tribunal for necessary clarification. 9. Accordingly, upon being approached by the petitioner, the learned Tribunal will ascertain as to who is the actual proceedee, based on the terms of reference made by the competent authority. If the proceedee in terms of the reference is not the petitioner, the question of giving any opinion as regards the citizenship of the petitioner does not arise and the Tribunal will merely clarify in that regard, without proceeding any further against the petitioner, Smt. Rina Rani Das. Giving of opinion by the Tribunal arises only when a specific reference is made by the competent authority against a specific person. Accordingly, the Tribunal may clarify the same as far as the petitioner Smt. Rina Rani Das, W/O. Sri Dinesh Das, resident of Village-Brahmajan, PS-Gohpur, District-Sonitpur, Assam, is concerned so that she does not have any inconveniences because of the ex-parte order dated 05.06.2014 passed by the learned Tribunal in F.T. Case No. 284/2012. The learned Tribunal will accordingly examine the records of the reference and pass appropriate order as regards the present petitioner, namely, Smt. Rina Rani Das. 10. The learned Foreigners' Tribunal will ascertain who is the actual proceedee in terms of the reference made by the competent authority. The learned Tribunal will accordingly examine the records of the reference and pass appropriate order as regards the present petitioner, namely, Smt. Rina Rani Das. 10. The learned Foreigners' Tribunal will ascertain who is the actual proceedee in terms of the reference made by the competent authority. If the present petitioner is not the proceedee in terms of the reference made, the Foreigners' Tribunal will clarify so as far as the petitioner is concerned so that the petitioner is not put to any inconvenience as according to the petitioner, the police is looking for her on the strength of the ex-parte opinion of the learned Tribunal dated 05.06.2014. 11. Further, it is also made clear that if it is found that the reference against the proceedee is that the proceedee is an entrant during the period between 01.01.1966 and before 25.03.1971 as per the reference made by the authorities, the Foreigners' Tribunal cannot pass any order to the effect that the proceedee is an entrant after 25.03.1971 as it would be beyond the terms of reference. The Tribunal can only examine as to whether the proceedee is an entrant during the period 01.01.1966 and before 25.03.1971 and the Tribunal cannot make any determination/opinion that the proceedee is an entrant of post 25.03.1971. However, if the proceedee is able to prove that he/she is an Indian citizen or that he/she came before 01.01.1966, the Tribunal can accordingly, give its opinion but not that the proceedee entered Assam on or after 25.03.1971, as it was never the case of the authority. Inspite of the reference made by the referral authority that the proceedee entered between 01.01.1966 and before 25.03.1971, if the proceedee is able to prove that he/she entered before 01.01.1966, and has been ordinarily resident of Assam since then, he/she will be treated as an Indian citizen and there will not be any need to register herself as in the case of an entrant who entered between 01.01.1966 and 25.03.1971, who will be required to get him/her registered with the competent authority and will get Indian citizenship only after 10 years of declaration as a foreigner by the Tribunal. 12. 12. As a corollary, if the proceedee who has been proceeded on the ground that he/she is an entrant during the period of 01.01.1966 and before 25.03.1971, does not appear before the Tribunal and the Tribunal proceeds against him/her ex-parte, in failure to discharge the onus placed under Section 9 of the Citizenship Act, 1955, the proceedee may be liable to be declared as a foreigner who entered during the aforesaid period and not a foreigner who entered post 25.03.1971. Therefore, a proceedee cannot be placed at a more disadvantageous position than being charged of. Accordingly, the Foreigners' Tribunal will reconsider the matter and pass appropriate order in F.T. Case No. 284/2012. On this ground alone, irrespective of the identity of the proceedee, the impugned opinion of the Tribunal dated 05.06.2014 passed in F.T. Case No. 284/2012 cannot be sustained, and is accordingly, set aside. 13. The petitioner, accordingly, will appear before the learned Tribunal on 05.04.2021 for the reasons discussed above. 14. Before parting, we, however, would like to make following observations and directions. 15. Before any reference is made by the competent authority under Order 2(1) of the Foreigners (Tribunals) Order, 1964, the authority must cross check the identity of the person sought to be proceeded against, so that such similar problem/issue as arisen in this petition can be avoided. Had the authority clearly identified the proceedee who the authorities wanted to proceed against, this problem would not have arisen. It appears that the verifying authority did not properly verify the identity of the proceedee, if the present petitioner was the intended proceedee. In the event, it is proved that there is no person called Rima Das, who is the wife of Sri Dinesh Das, resident of Brahmajan, PS-Gohpur, District-Sonitpur, Assam, the entire exercise undertaken by the Tribunal would be rendered futile as any opinion given in respect of "Rima Das" cannot be made applicable to "Rina Rani Das". If the authorities had really intended to proceed against the present petitioner, the correct description of the proceedee should have been recorded as the present petitioner cannot certainly be fastened with any liability by the impugned ex-parte order. The identity of the proceedee is crucial and most important. This will obviate futile exercise by the Tribunal. 16. Thus, a proper pre-referral investigation is absolutely necessary to obviate such problems. Such pre-referral investigation cannot be mechanical. The identity of the proceedee is crucial and most important. This will obviate futile exercise by the Tribunal. 16. Thus, a proper pre-referral investigation is absolutely necessary to obviate such problems. Such pre-referral investigation cannot be mechanical. There must be proper application of mind by the authority concerned. Persons concerned in the locality including the proposed proceedee must be examined wherever possible. The referral authority has to apply its mind on the materials collected by the Investigating/Verifying Officers during investigation and make the reference to the Tribunal only after being fully satisfied about the identity and grounds for making such reference. The referral authority while making such reference shall produce all the materials collected during investigation before the Tribunal. The Tribunal is thereafter, required to be prima facie satisfied about the existence of the main grounds before issuing notice to a proceedee. It is, therefore, sine qua non for any valid reference that the referral authority must be fully satisfied about the identity of the person who is sought to be proceeded against in the Tribunal, as wrong identification or wrong characterization of the proceedee can have serious implications both for the State as well as for the individual concerned as has happened in the present case. 17. In fact, issues relating to improper pre-referral investigations had been brought to the notice of the Court and thus, subject matter of consideration on earlier occasions, as clearly evident from the observations of this Court in State of Assam & Anr. Vs. Moslem Mondal & Ors. (2013) 3 GLR 402 : 2013 (1) GLT 809. The following paragraphs reproduced from the above referred judgment will reflect the importance of proper pre-referral investigation by the competent authority, and also proper application of mind by the Tribunal on the material furnished by the referral authority. "96. Vs. Moslem Mondal & Ors. (2013) 3 GLR 402 : 2013 (1) GLT 809. The following paragraphs reproduced from the above referred judgment will reflect the importance of proper pre-referral investigation by the competent authority, and also proper application of mind by the Tribunal on the material furnished by the referral authority. "96. One of the contentions of the proceedees is that though the referral authority is required to make the reference to the Tribunal after making a fair investigation, no such proper and fair investigation is conducted and the police at their own whims and caprice gives a report, in some cases even without visiting the place where such proceedee resides and also without giving any opportunity to produce the relevant documents to substantiate that the proceedee is not a foreigner, and such report is accepted by the referral authority and accordingly the reference is made to the Tribunal, on the basis of which the reference is registered against such person. 97. Fair investigation and fair trial being the basic fundamental/human right of a person, which are concomitant to preservation of the fundamental right of a person under article 21 of the Constitution, there has to be a fair and proper investigation by the investigating agency before making a reference to the Tribunal. In such investigation the attempt has to be made to find out the person against whom the investigation is made, so that the person concerned is given the opportunity to demonstrate at that stage itself that he is not a foreigner. In case the person concerned could not be found out in the village where he is reported to reside or in the place where he ordinarily resides or works for gain, the investigating agency has to record the same in presence of the village elder or the village headman or any respectable person of the locality, which in turn would ensure visit of the investigating officer to the place where such person ordinarily resides or reported to reside or works for gain and making of an effort to find him out for the purpose of giving him the opportunity to produce the documents etc., if any, to demonstrate that he is not a foreigner. The investigating officer, as far as practicable, shall also obtain the signature or thumb impression of the person against whom such investigation is initiated, after recording his statement, if any, provided he makes himself available for that purpose. There are also instances where the person against whom such investigation is initiated, changes his place of residence, may be in search of livelihood or may be to avoid detection. To ensure proper investigation and also having regard to integrity and sovereignty of the nation, once investigation relating to the nationality status of a person starts he must inform the investigating agency in writing about the change of residence, if any, thereafter. In case such person has failed to intimate the investigating agency in writing the subsequent change of his place of residence, the investigating agency has to mention the same in his report with his opinion relating to the status of such person on the basis of materials collected at the place where he earlier resided. That will ensure a fair investigation and submission of a proper report on such investigation to the authority. Needless to say, such investigation need not be a detailed or an exhaustive one keeping in view the nature of the proceeding before the Tribunal and the object sought to be achieved. Hence it need not be equaled with an investigation conducted in criminal cases. 98. The reference by the referral authority also cannot be mechanical. The referral authority has to apply his mind on the materials collected by the investigating officer during investigation and make the reference on being satisfied that there are grounds for making such reference. The referral authority, however, need not pass a detailed order recording his satisfaction. An order agreeing with the investigation would suffice. The referral authority also, while making the reference, shall produce all the materials-collected during investigation before the Tribunal, as the Tribunal is required prima facie to satisfy itself about the existence of the main grounds before issuing the notice to the proceedee." 18. Further, as provided under Order 3(1) of the 1964 Order, the Tribunal is to serve notice on the person to whom the question relates and the Tribunal is to give its opinion in order of reference. Further, as provided under Order 3(1) of the 1964 Order, the Tribunal is to serve notice on the person to whom the question relates and the Tribunal is to give its opinion in order of reference. Thus, if the reference as mentioned in the notice is that the proceedee is an entrant to this country during the period, 01.01.1966 and before 25.03.1971 as per the reference made by the authorities, the Foreigners' Tribunal has to consider the reference with vis-a-vis the said period and cannot consider and give any opinion/order to the effect that the proceedee is an entrant after 25.03.1971, for the reason that it was never the case of the authority that the proceedee is an entrant of post 25.03.1971 stream. 19. There are weighty and compelling reasons for the same, as discussed earlier. A person detected to be foreigner from the specified territory who enters Assam during the period of 01.01.1966 and before 25.03.1971 can claim citizenship of this country after 10 years of such declaration as provided under Section 6A of the Citizenship Act, 1955 and hence, cannot be deported unlike in the case of a person who has been detected to be a foreigner from the specified territory who entered Assam on or after 25.03.1971, who is liable to be detained and deported. The consequence of the opinion as to the date of entry is enormous. Thus, the Foreigners' Tribunal cannot go beyond the term of reference if the reference is that the proceedee is an entrant between 01.01.1966 and before 25.03.1971. 20. Accordingly, we also direct that, (i) The referral authority must scrupulously adhere to the norms laid down by this Court in Moslem Mondal (supra), more particularly, as mentioned in para Nos. 96, 97 and 98 therein quoted above, as otherwise, the proceeding before the Tribunal would be vitiated. (ii) The Tribunal must be also prima facie satisfied about the existence of the main grounds before issuing notice to the proceedee and initiating the process. We would also add that, the Tribunal, must also properly cross check the identity of the proceedee based on the materials furnished by the referral authority. (ii) The Tribunal must be also prima facie satisfied about the existence of the main grounds before issuing notice to the proceedee and initiating the process. We would also add that, the Tribunal, must also properly cross check the identity of the proceedee based on the materials furnished by the referral authority. (iii) The Foreigners Tribunal cannot go beyond the term of reference as furnished by the referral authority under Order 2(1) of the Foreigners (Tribunals) Order, 1964, if the reference is for determination that the proceedee is an illegal entrant during the period of 01.01.1966 and before 25.03.1971. The Tribunal has to decide accordingly, and cannot give an opinion that the proceedee has entered after 25.03.1971. (iv) However, if the reference is for determining that the proceedee had illegally entered on or after 25.03.1971, the proceedee has not only the option to prove that he/she is an Indian citizen who had entered India before 01.01.1966 and has been ordinarily resident of Assam since then but also that he/she entered Assam during the aforesaid period of 01.01.1966 and before 25.03.1971 and the Tribunal can accordingly, give its opinion. 21. The Registry is directed to circulate this order to all the Foreigners' Tribunals under the State of Assam as well as to all the referral authorities. 22. With the above observations and directions, the present petition is disposed of.