IMPORTANT POINT
For the prosecution of a foreigner overstaying without authority a fresh order or a notice to quit India are not necessary.

JUDGMENT

S. Padmanabhan, J. - Respondent was charge-sheeted by the Sub Inspector of Police, Alathur for an offence punishable under section 14 of the Foreigners Act, 1946 for having overstayed in India in contravention of the provisions of section 3(2)(c) thereof and tried before the Additional Judicial First \Class Magistrate, Palghat in C.C. 214 of 1986. He was acquitted solely on the ground that the prosecution was without observing the principle of natural justice, following a Single Bench decision of the Andhra Pradesh High Court in P. Mohammad Khan v. 'State of Andhra Pradesh1. State has challenged the acquittal.

2. On facts there is no dispute. Though the respondent is an Indian by birth he migrated with family to a Malaysia long ago and became a Malaysian Notional. He entered India on 19-12-1984 with a Malaysian passport and Indian visa dated 13.12.1984 valid till 18-3-1985. He is admittedly a foreigner and his stay in India from 19.3.1985 is illegal. He claimed to have applied for extension of visibility was not ordered, he says Reason for overstay which necessitated an application for extension is said to be illness.

3. Section 2(a) of the Foreigners Act as it now stands defines foreigner as a person who is not a citizen of India. Section 3(2)(c) authorises the Central Government to make orders considered necessary to provide that the foreigner shall not remain in India or in any prescribed area therein. Orders mentioned in section 3 are these detailed in the Appendices. Foreigners Order 1948 is one among them. Para 7 of the Order makes registration necessary under Rule 6 of the Registration of Fordgners Rules, 1939. A permit indicating the period during which he is authorised to remain in India will have to be obtained.

Unless the period indicated in the permit is got extended, the foreigner is bound to deport from India before the expiry of the period surrendering the permit. Any contravention of the provisions of the Act or of any Order made there under or any direction given in pursuance of the Act or Order is made punishable under section 14.

4. Section 2(a) of the Foreigners Act as it stood before amending Act 11 of 1957 which came into effect on 19.1.1957 defined foreigner as a person who

(1) is not a natural born British subject as defined in sub--sections (1) and (2) of section 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 India, or

(3) is not a citizen of India.

5. The Citizenship Act, 1955, published in the gazette on 30.12.1955 provides for registration of certain categories of persons, not already Indian Citizens by virtue of the Constitution or the provisions of the Citizenship Act, as citizens. Article 5 of the Constitution says who are all Indian citizens at the commencement of the Constitution. All these who are born or domiciled in India or either of whose parents are born in India or these who were ordinary residents of India for not less than five years immediately before the Constitution came within the category of citizens Section 9(1) of the Citizenship Act enumerated the circumstances under which a citizen of India ceases to be so. That can happen by naturalisation, registration or otherwise voluntarily acquiring or has between 26.1.1950 and 30.12.1955 voluntarily acquired, the citizenship of another country. Section 9(2) says that if any question arises as to whether, when or how any person has acquired the citizenship of another country, it shall be determined by such authority, in such manner, and having regard to such rules of evidence, as may be prescribed, in this behalf. I referred to these provisions for familiarisation only because on the basis of certain decisions based on these provisions, an argument was advanced that a prosecution will be only after notice to quit India is given after passing the necessary orders and giving an opportuni