1. Conviction under Section 14 of the Foreigners Act for overstaying a visa in breach of the Foreigners Order 1948. (Para 1 , 2 )
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1961 Supreme(SC) 162
SUPREME COURT OF INDIA
5th April, 1961
B.P. SINHA, C.J.I., S.K. DAS, A.K. SARKAR, K.C. DAS GUPTA AND N. RAJAGOPALA AYYANGAR, JJ.
Fida Hussain, Appellant
Versus
State of U.P., Respondent.
Advocates appeared
Mr. Naunit Lal, Advocate, for Appellant; M/s. G. C. Mathur and C. P. Lal, Advocates, for Respondent.
Advocates:
C.P.LAL, NAUNIT LAL
C.P.LAL, NAUNIT LAL
A person born within the British Dominion was a natural-born British subject and not a "foreigner" under the 1953 definition of the Foreigners Act, 1946; thus, they could not be convicted for breaching orders applicable only to foreigners at the time of entry.
Headnote:(A) Foreigners Act, 1946 - Section 2(a) and 14 - Foreigners Order, 1948 - Paragraph 7 - British Nationality and Status of Aliens Act, 1914 - Section 1(1)(a) - Definition of "foreigner" - Person entering on a visa and overstaying - If the person was a natural-born British subject at the time of entry, they do not fall within the definition of a "foreigner" as it stood in 1953 - Consequently, a breach of the order requiring a foreigner to depart before the expiry of a permit cannot be attributed to such a person. (Paras 3, 4)
(B) Foreigners Act, 1946 - Amendment of definition of "foreigner" - Effect of amended definition on status - Court's observation that the status is determined by the law in force at the time of entry. (Para 6)
Facts of the case:
An individual entered the country on a passport from another nation with a visa permitting stay for a specific period. The individual overstayed the permitted period and was convicted under the Foreigners Act for breach of the Foreigners Order. It was contended that at the time of entry, the individual was not a "foreigner" as defined by the law.
Findings of Court:
The individual was born within the British Dominion and was therefore a natural-born British subject under the British Nationality and Status of Aliens Act, 1914. Under the definition of "foreigner" prevalent in 1953, a natural-born British subject was not considered a foreigner.
Issues: Whether the individual, being a natural-born British subject at the time of entry, could be classified as a "foreigner" and thus be convicted for overstaying under the Foreigners Order.
Ratio Decidendi: The court held that paragraph 7 of the Foreigners Order applies to a person who was a foreigner at the date of entry. Since the individual met the criteria of a natural-born British subject, they were not a foreigner under the then-existing definition in the Foreigners Act.
Result: Appeal allowed.
Legal Category Hierarchy
Table of Contents
2. Whether the appellant was a foreigner at the time of entry, thereby making him subject to the Foreigners Order 1948. (Para 3 )
3. The appellant was a natural-born British subject at the time of entry, thus not meeting the definition of a foreigner under the Foreigners Act. (Para 3 , 4 )
4. A person who is a natural-born British subject at the date of entry into India is not a foreigner under the Foreigners Act. (Para 3 , 4 )
5. Appeal allowed; conviction and sentence set aside. (Para 5 )
6. Who is considered a foreigner under the Foreigners Act as of 1953?
A foreigner is a person who is not a natural-born British subject, has not been granted a certificate of naturalisation as a British subject, or is not a citizen of India. (Para 4 )
7. Does the Foreigners Order 1948 apply to persons who were not foreigners at the time of their entry into India?
No, paragraph 7 of the Foreigners Order 1948 applies specifically to a foreigner entering India; therefore, it does not apply to a person who was not a foreigner at the date of entry. (Para 3 )
8. Does a person born within the British Majesty's Dominion qualify as a natural-born British subject?
Yes, under Section 1(1)(a) of the British Nationality and Status of Aliens Act, 1914, any person born within His Majesty's Dominion and allegiance is deemed a natural-born British subject. (Para 4 )
Judgment
SARKAR, J. : The appellant who had earlier left India, returned on a passport granted by the Government of Pakistan on May 16, 1953. He had a visa endorsed on his passport by the Indian authorities permitting him to stay in India for three months and this permission was later extended up to November 15, 1953. He did not, however, return to Pakistan within that date upon which he was convicted under S. 14 of the Foreigners Act, 1946, by a Sub-Divisional Magistrate on March 14, 1959, and sentenced to rigorous imprisonment for one year. His appeal to a Sessions Judge was dismissed and the High Court at Allahabad, on being moved in revision, refused to interfere with the order of the Sessions Judge. This appeal is against the judgment of the High Court.
2. The appellant had been convicted for breach of paragraph 7 of the Foreigners Order of 1948, issued under S. 3 of the Foreigners Act. That paragraph requires that every foreigner entering India on the authority of a visa issued in pursuance of the Indian Passport Act, 1920, shall obtain from the appropriate authority a permit indicating the period during which he is authorised to remain in India and shall, unless that period is extended, depart from India before its expiry. As earlier stated the visa on the appellant s passport showed that he had permission to stay in India till November 15, 1953, but he stayed on after that date. Hence the prosecution.
3. It is contended on behalf of the appellant that he could not be convicted of a breach of paragraph 7 of the foreigners Order for that paragraph applies to a "foreigner" entering India on the authority of a visa issued in pursuance of the Indian Passport Act and overstaying the period for which he is permitted to stay in India. It is contended that the foreigner contemplated in this paragraph is a person who was a foreigner on the date of his entry into India. The appellant says that on that date he was not a foreigner and, therefore, the provisions of the paragraph do not apply to him. This contention of the appellant is plainly correct. The paragraph contemplates a foreigner entering India, and therefore, a person who at the date of the entry was a foreigner.
4. Now, the word "foreigner" in paragraph 7 has the same meaning as that word has in the Foreigners Act. The word "foreigner" is defined in that Act in S. 2(a). That definition has changed from time to time, but we are concerned with the definition as it stood in 1953 when the appellant entered India, which was in these terms:
"foreigner" means a person who........
(1) is not a natural-born British subject as defined in sub-secs. (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 naturalisation as a British subject under any law for the time being in force in British India, or
(3) is not a citizen of India.
The appellant s contention is that he was not a foreigner because he came within Cl. (1) of the definition as he was a natural-born British subject within S. 1(1)(a) of the British Nationality and Status of Aliens Act, 1914. Now that provision is in these terms:
Section 1. (1) The following persons shall be deemed to be natural-born British subjects, namely,-
(a) any person born within His Majesty s Dominion and allegiance.
That the appellant was born at Allahabad at a time when it was within his Britannic Majesty s Dominion is not in dispute. That being so, we think that it must be held that at the date of his entry into India the appellant was a natural-born British subject and, therefore, not a foreigner. He could not have committed a breach of paragraph 7 of the Foreigners Order.
5. In the result we allow the appeal and set aside the conviction of the appellant and sentence passed on him.
6. Before leaving this case we think it right to make a few more observations. The definition of a foreigner in the Foreigners Act was amended with effect from January 19, 1957, by Act 11 of 1957. The definition s
