Overstaying after visa expiry constitutes an offence under the Foreigners Act, 1946, but mitigating factors can influence the sentencing.

Chakradhari Sharan Singh, J. (Oral)

Heard learned counsel for the parties.

2. The petitioner in the present criminal revision application filed under Sections 397 and 401 of the Code of Criminal Procedure, 1973, has assailed an order, dated 17.03.2016 passed in Criminal Appeal No. 36 of 2013 by learned third Additional Sessions Judge, Jehanabad, whereby he has affirmed the judgment of conviction and order of sentence of imprisonment for a period of three years recorded by the Court of learned Judicial Magistrate Ist Class, Jehanabad, holding the petitioner guilty of offence punishable under Section 14 of the Foreigners Act, 1946. The said trial No. 2765 of 2013 before the learned Judicial Magistrate Ist Class, Jehanabad arose out of Arwal P. S. Case No. 196 of 2012 corresponding to G. R. No. 2111 of 2012.

3. Even while assailing the impugned judgments and orders, learned counsel appearing on behalf of the petitioner has not disputed the fact that the petitioner is a citizen of Pakistan. He had travelled to India on the basis of Visa No. V11598679 dated 10.12.2011, which was valid for a period of three months. The Visa expired on 10.02.2012. Despite expiry of the Visa, the petitioner overstayed. On this allegation an F.I. R. was registered being Arwal P. S. Case No. 196 of 2012 on 30.10.2012. He was arrested by the police and he was, thereafter, produced before the learned Judicial Magistrate Ist Class, Jehanabad on 31.10.2012. The police upon completion of investigation submitted charge-sheet on 19.11.2012.

4. At the trial, one Syed Masood Alam was examined as D. W.1, who claimed to be the father of the petitioner and a citizen of India. He deposed that the petitioner was born at Arwal and he had studied up to Class- VIII in Umairabad, High School. He also deposed that the petitioner procured citizenship of Pakistan and he had come to India with the said Visa, the period of which had expired.

5. Learned counsel appearing on behalf of the petitioner has submitted that the petitioner is citizen of India by birth and he intends to acquire the citizenship of India again. He has submitted that the Courts below ought to have taken into account the undisputed fact that the petitioner was born at Arwal in India.

6. I find from the record that there is no dispute that the petitioner acquired the citizenship of Pakistan and when he came to India, it was on the basis of the Visa, which was valid only up to 10.02.2012. Even if the case of the petitioner is treated to be true that he was born in India, though there is no such judicial determination on this point, once he acquired citizenship of Pakistan, his citizenship stood terminated by operation of Section 9 of the Citizenship Act, 1955.

7. Section 9 of the Citizenship Act reads thus:-

9. Termination of citizenship.-

(1) Any citizen of India who by naturalization, registration otherwise voluntarily acquires, or has at any time between the 26th January, 1950 and the commencement of this Act, voluntarily acquired the citizenship of another country shall, upon such acquisition or, as the case may be, such commencement, cease to be a citizen of India: Provided that nothing in this sub-section shall apply to a citizen of India who, during any war in which India may be engaged, voluntarily acquires, the citizenship of another country, until the Central Government otherwise directs.

(2) If any question arises as to whether, when or how any 1[citizen of India] 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.

Since he admittedly, overstayed the period of Visa, he acquired the status of an illegal migrant within the meaning of Section 2(1)(b) (ii) of the Citizenship Act

8. Section 14 of the Foreigners Act, 1946 prescribes for penalty for contravention of the provisions of the Act, which specifically provides that whoever remains in any area in the India for a per