Judgment

GAJENDRAGADKAR, J. : A charge-sheet was presented by the appellant-the State of Madhya Pradesh against the respondents Peer Mohammad and his wife Mst. Khatoon under Section 14 of the Foreigners Act, 1946 (hereinafter called the Act) read with clause 7 of the Foreigners Order, 1948 (hereinafter called the Order) in the Court of the Magistrate 1st Class, Burhanpur. The case against the respondents was that they had entered India on May 13, 1956, on the strength of a Pakistani passport and a visa issued in their favour on May 8, 1956 and reached Burhanpur on May 15, 1956. Even after the period of the visa had expired, they continued to stay in India. Consequently, the District Magistrate, Burhanpur, served a notice on them on May 14, 1957 calling upon them to leave India on or before May 28, 1957. The respondents did not comply with the notice and by their unauthorised and illegal overstay in India, they rendered themselves liable under Section 14 of the Act and clause 7 of the Order.

2. The respondents pleaded that they were not foreigners but were citizens of India. They were born in India at Burhanpur and had been permanent residents of the said place; and so, the present criminal proceedings instituted against them were misconceived.

3. The prosecution, however, urged that the respondents had left India for Pakistan sometime after January 26, 1950, and under Art. 7 of the Constitution they cannot be deemed to be citizens of India. In the alternative, it was urged that since the respondents had obtained a Pakistani passport, they have acquired the citizenship of a foreign country and that has terminated their citizenship of India under Section 9 of the Citizenship Act, 1955 (No. LVII of 1955). It appears that before the learned Magistrate, only this latter plea was pressed and the learned Magistrate held that the question as to whether the respondents had lost their citizenship of India under Section 9(2) of the Citizenship Act has to be decided by the Central Government and cannot be agitated in a court of law. Therefore, the learned Magistrate passed an order under Section 249 of the Code of Criminal Procedure, directing that the respondents should be released, and the passport seized from them should be returned to them after the period of appeal, if any.

4. Against this order, the appellant preferred an appeal in the High Court of Madhya Pradesh, and before the High Court it was urged by the appellant that on a fair and reasonable construction of Art. 7 it should be held that the respondents cannot be deemed to be citizens of India and so, they were liable under Section 14 of the Act and clause 7 of the Order. This appeal was heard by Shrivastava and Naik JJ. Shrivastava J. took the view that Art. 7 did not apply to the case of the respondents who had left India for Pakistan after January 26, 1950, and so, they could not be held to be foreigners on the ground that they had left India as alleged by the prosecution. Naik J., however, came to a contrary conclusion. He took the view that since it was proved that the respondents had left India for Pakistan after January 26, 1950, Att.7 was attracted and so, they must be deemed to be foreigners. Since there was a difference of opinion between the two learned Judges who heard the appeal, it was referred to Newaskar J. Newaskar J., agreed with the conclusion of Shrivastava J. and so, in the light of the majority opinion, it was held that under Art.7, the respondents could not be held to be foreigners.

5. In regard to the alternative case of the prosecution that the respondents had obtained a Pakistani passport and so, had lost their citizenship under Section 9(2) of the Citizenship Act, the High Court held that it was a matter which had to be determined by the Central Government and it is only after the Central Government decides the matter against the respondents that the appellant can proceed to expel them from India. It, however, appears that the High Court read the order p