1963 Supreme(Bom) 60
IN THE HIGH COURT OF BOMBAY
Gokhale H.R. J.
Appellants: State
Vs.
Respondent: Ghoraishi (Qureshi) Sayed Mohomed
Criminal Appeal No. 1485 of 1962
Decided On: 24.07.1963
Counsels:
For Appellant/Petitioner/Plaintiff: C.C. Vaidya, Asst. Govt. Pleader
For Respondents/Defendant: C.H. Jamani, Adv.
A person who claims to be an Indian citizen must prove that he had his domicile in India at the commencement of the Constitution and that he satisfied one of the conditions mentioned in Article 5 of the Constitution.
Headnote:
FOREIGNERS ACT - SECTION 14 - FOREIGNERS ORDER, 1948 - PARAGRAPH 7 - A person who is not a citizen of India is a foreigner. - A person who claims to be an Indian citizen must prove that he had his domicile in India at the commencement of the Constitution and that he satisfied one of the conditions mentioned in Article 5 of the Constitution. - Long residence alone is not sufficient to establish domicile. - An intention to make India one's permanent home must be coupled with an intention never to leave.
Fact of the Case:
The respondent, an Iranian national, was prosecuted for having committed an offence under Section 14 of the Foreigners Act, 1946, read with Paragraph 7 of the Foreigners Order, 1948. The prosecution alleged that the respondent failed to depart from India within the prescribed time limit, which expired on the 10th of February, 1962. The respondent claimed that he was an Indian citizen by virtue of Article 5 of the Constitution.
Finding of the Court:
The Court held that the respondent had failed to establish that he had acquired Indian citizenship at the commencement of the Constitution. The Court found that the respondent had been ordinarily resident in India for a period of not less than five years immediately preceding the commencement of the Constitution, but that he had not shown that he had his domicile in India at the commencement of the Constitution. The Court also found that the respondent had not abandoned his Iranian domicile and had not acquired Indian domicile as his domicile of choice.
Issues: 1. Whether the respondent was a foreigner or an Indian citizen. 2. Whether the respondent had acquired Indian citizenship at the commencement of the Constitution. 3. Whether the respondent had abandoned his Iranian domicile and acquired Indian domicile as his domicile of choice.
Ratio Decidendi: 1. A person who is not a citizen of India is a foreigner. 2. A person who claims to be an Indian citizen must prove that he had his domicile in India at the commencement of the Constitution and that he satisfied one of the conditions mentioned in Article 5 of the Constitution. 3. Long residence alone is not sufficient to establish domicile. 4. An intention to make India one's permanent home must be coupled with an intention never to leave.
Final Decision: The Court allowed the appeal, set aside the order of acquittal made by the learned Addl. Chief Presidency Magistrate, and convicted the respondent for having committed an offence under Section 14 of the Foreigners Act 1946, read with Paragraph 7 of the Foreigners Order, 194S. The Court imposed a fine of Rs. 25/- on the respondent, in default of payment of which he was to undergo S. I. for one week.
JUDGMENT - 1. This is an appeal by the State against the acquittal of the respondent, who was prosecuted for having committed an offence under Section 14 of the Foreigners Act, 1946, read with paragraph 7 of the Foreigners Order, 1948. The case of the prosecution is that the respondent is an Iranian National and he failed to depart from India within the prescribed time limit, which expired on the 10th of February, 1962. The prosecution alleges that the Residential permit which was granted to him was valid only up to the 10th of February, 1962. The prosecution have produced a certificate at Registration issued to the respondent under the Registration of Foreigners Rule, 1939 (Exh. 4). This certificate seems to have been issued on the 10th of February, 1949. It shows the year of arrival of the respondent in India was "1935". The address of his East residence outside India has been stated as "Tezd Iran". The manner of acquiring his nationality has been mentioned as, "By birth". The prosecution has also relied on an application made by the respondent on the 19th of April, 1961 (Exh. B). That application is on a form required to be filled in by an alien desiring to extend his stay in India. In this application also, the nationality of the respondent has been shown as "Iranian", and the place and date of his birth have been shown as "1922, Yezd. Iran". He is shown to be the holder of a passport, and the date of the passport and the date up to which it is valid are also mentioned against column 6 as "7-5-1959 issued at Bombay, valid till 7-5-62". It is common ground that this was a passport issued by the Government of Iran. This application also confirms that the year of the respondents arrival in India was "1935,". Then there are two columns which are material. Against Col. 10: "Whether resident in India previously and, if so, for what period", he has stated "Yes, since my arrival in India". Against column 11: "Date of expiry of authorised period of residence in India" he has stated "10-2-61". The reason for extension of stay is stated as "To continue business". Reliance is also placed on a Residential Permit (Exh. C). The Residential Permit mentions that the respondent, "a foreigner of Iranian Nationality, holding Iranian Passport No. T/462915 /136 dated 7th May 1959. issued at Bombay is permitted to remain in India until 10th February, 1961." Paragraph 4 of the Residential Permit specifically mentions that "application for an extension of period of this permit must be made at least fifteen days before 10-2-1961". At the bottom of this permit there is an endorsement, "Permitted to extend stay in India till 10-2-1962 by Commissioner of Police, Bombay." This endorsement is signed, by the Registration Officer, Bombay, it is the expiry of this period on the 10fh of February, 1962, and the failure on the part of the respondent to have his permit extended, that has resulted in the present prosecution. There are two other documents on which also the prosecution relied. It is alleged that although the period of his permit expired on the 10th February, 1962, the respondent actually applied for extension on the 12th of February, 1962. In this application (Exh. D) also the respondent has given his nationality as "Iranian", and the place and date of his birth have been mentioned as "1922 Yezd Iran". The purpose of visit to India is given as "For business". Against the column "Whether resident of India previously and, if so, for what period", the respondent has stated "Long resident". The period for which extension was required is stated as "one year". The reason for extension of stay in India has been stated as "To continue my above profession". Another document is a passport (Exh. E). This is a passport which was issued on the 7th of May, 1959. It is issued by the Government of Iran and the domicile of the respondent has been shown as "Iran, residence Bombay". There are two more documents. One is an application by the respondent to the Deputy
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