Point of Law: Requirement of a fair investigation and fair trial being basic Fundamental/Human Rights of a person, which are concomitant to preservation of Fundamental Rights of a person under Article 21 of Constitution of India.

JUDGMENT :

A.M. Bujor Barua, J.

Heard Mr. R Ali learned counsel for the petitioner. Also heard Ms. A Verma, learned Special Standing Counsel, Foreigners Tribunal for the Home Department, Government of Assam as well as the Superintendent of Police (B) Hojai, Ms. L Devi, learned CGC for the respondents in the Union of India as well as the authorities under the NRC, Mr. AI Ali, learned counsel for the authorities under the Election Commission of India, and Ms. K Phukan, learned Government Advocate for the Deputy Commissioner, Hojai.

2. The petitioner Aziz Mia was referred to the Foreigners’ Tribunal No. 2, Kamrup(M) for rendering an opinion as to whether he is a foreigner as defined in the Foreigners’ Act, 1946, who entered the State of Assam from the specified territory, resulting in registration of FT Case No. 165/2015 corresponding to IM(D)T Case No. 239/2001.

3. In the proceeding before the Tribunal, the petitioner made an application with a prayer that the proceedings itself be dropped, inasmuch as, the inquiring authority in its report submitted that during the inquiry the petitioner could produce a voters’ list of 1966 which belong to his father to prove that he is not a foreigner and accordingly, the inquiring authority had given a view that the petitioner is not an illegal migrant, but in spite of such report by the inquiring authority, the Superintendant of Police (Border), Kamrup made a reference to the Foreigners’ Tribunal resulting in registration of the aforesaid FT Case No. 165/2015. By the Order dated 20.03.2023, the Tribunal was of the view that as the referral authority had suspected the petitioner to be an illegal migrant post 25.03.1971, the prayer to drop the proceeding against the petitioner cannot be accepted. Being aggrieved, this writ petition is instituted.

4. Mr. R Ali, learned counsel for the petitioner submits that under the paragraph No. 97 of the Judgment of the full Bench of this Court in the State of Assam & Ors. Vs. Moslem Mondal & Ors., reported in 2013(1) GLT 809, there is a requirement under the law that before making a reference, an inquiry should also be conducted by the authorities giving an opportunity to the suspected person to prove before the authority itself that he is not a foreigner. By taking recourse to paragraph 97 of Moslem Mondal(supra), it is the submission of Mr. R Ali, learned counsel for the petitioner that as in the instant case, the petitioner succeeded in proving before the inquiring authority that he is not a foreigner and therefore the subsequent reference by the Superintendant of Police (Border) to the Foreigners’ Tribunal is a defective reference and further as the reference itself is defective no jurisdiction is vested upon the Tribunal to proceed against the petitioner. Accordingly, it is the submission that the conclusion arrived at by the Tribunal in the order impugned dated 20.03.2023 is unsustainable in law.

5. To substantiate his submission, the petitioner relies upon an earlier judgment rendered by the Division Bench in WP(C) No. 2674/2016 in Monowara Khatun vs. Union of India & Ors. By referring to the said judgment of the Division Bench, it is the submission of Mr. R Ali, learned counsel for the petitioner that as the reference made by the Superintendant of Police (Border), Kamrup was defective, therefore, there is a requirement under the law to return the reference back to the Superintendant of Police (Border), Kamrup and in the circumstance the reference before the Tribunal would not be maintainable any further.

6. Ms. A Verma, learned counsel for the Home Department of the Govt. of Assam submits that the provisions of paragraph 97 of the judgment of the Full Bench of this Court rendered in MoslemMondal(supra)is only for the purpose of giving an opportunity to the suspected person to prove that he is a citizen and such provision had been incorporated in paragraph 97 of the judgment in Moslem Mondal (supra) pursuant to the provisions of Article 21 of the Constitut