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1971 Supreme(Ker) 23
Judges : E.K.MOIDU,T.C.RAGHAVAN
State Of Kerala - Appellant
Versus
Ayyathayil Kaleed - Respondent
Case No : Criminal Appeal No. 53 of 1970
Decided On : 02/02/1971
Advocates Appeared :
For the Appellant: M. B. Kurup, Public Prosecutor. For the Respondent: P. K. Shamsuddin and P. Mohammed, Advocates.
The central legal point established in the judgment is that the question of a person renouncing Indian nationality and accepting foreign nationality falls under the jurisdiction of the Central Government as per Section 9(2) of the Citizenship Act.
Headnote:
Foreigners Act - Prosecution under section 14 read with section 3 - Summary of Acts and Sections: Section 3 and Section 14 of the Foreigners Act - The court discussed the provisions of Section 3 which confers powers on the Central Government to make orders with respect to foreigners for prohibiting, regulating, or restricting their entry into India or their departure therefrom or their presence therein. The court also highlighted the contravention of rule 7 of the Foreigners Order and the punishment under Section 14 for contravention of the provisions of the Act or any order made under the Act.
Fact of the Case:
The respondent was prosecuted under section 14 read with section 3 of the Foreigners Act for entering India on a Pakistani visa and failing to leave the country after the expiry of the term. The Munsif-Magistrate acquitted the respondent based on incorrect reasoning.
Finding of the Court:
The court found that the Munsif-Magistrate's reasoning was incorrect and that the respondent, being an Indian national, renounced his Indian nationality and accepted Pakistani nationality. The court confirmed the acquittal of the respondent.
Issues: The main issue was whether the respondent, being an Indian national, renounced his Indian nationality and accepted Pakistani nationality, and whether the Munsif-Magistrate's reasoning was correct.
Ratio Decidendi: The court held that the Munsif-Magistrate had no jurisdiction to consider the question of the respondent renouncing his Indian nationality and accepting Pakistani nationality, as this falls under the jurisdiction of the Central Government as per Section 9(2) of the Citizenship Act.
Final Decision: The acquittal of the respondent was confirmed, and the appeal was dismissed.
RAGHAVAN, J.
The appeal has been placed before a Division Bench by Sadasivan J. since, in his opinion the question raised is an important one.
2. The respondent was prosecuted under section 14 read with section 3 of the Foreigners Act for having entered India on a Pakistani visa and failed to leave the country after the expiry of the term. The Munsif-Magistrate has held that the respondent is a Pakistani national but that the prosecution has failed to produce the order, if any providing that foreigners shall not remain in India. In the opinion of the Munsif-Magistrate there is nothing in the Foreigners Order which provides that foreigners shall not remain in India. On these findings mainly on the second finding the Munsif-Magistrate has acquitted the respondent.
3. The acquittal of the respondent by the Munsif-Magistrate is right, but his reasoning is not. If the finding of the Munsif-Magistrate that the respondent is a Pakistani national is correct he should have convicted the respondent. His finding that there is nothing in the Foreigners Order providing that foreigners shall not remain in Indian is wrong Sub-section (1) of Section 3 of the Foreigners Act confers powers on the Central Government to make by order provision with respect to foreigners for prohibiting regulating or restricting their entry into India or their departure therefrom or their presence therein. Sub-section (2) of the same section mentions some of the provisions that the Central Government may make and clause (c) of the sub-section relates to providing that a foreigner shall not remain in India or in any prescribed area therein. The Central Government promulgated the Foreigners Order under this Section; and rule 3 prohibits the entry of foreigners into India excepting on the conditions mentioned therein R. 7 then provides that any foreigner who enters India on the authority of a visa shall obtain from the Registration Officer a permit indicating the period during which he is authorised to remain in India etc. Now clause (iii) of Sub-rule (3) of R. 7 for instance lays down that the foreigner shall depart from India before the expiry of the period allowed to him etc.
Section 14 of the Foreigners Act makes the contravention of any of the provisions of the Act or of any order made under the Act or of any direction given in pursuance of the Act punishable. In view of the finding of the Munsif-Magistrate that the respondent is a Pakistani national (a foreigner), the respondent has contravened rule 7 of the Foreigners Order in not getting permission, when he entered India, to stay in India for a particular time etc. If the visa Ex. P. 1 is construed as a permission and the period mentioned therein is considered to be the period during which the respondent (the foreigner) is allowed to stay in India, then his overstay is again a contravention of the Order. Therefore, if the finding of Munsif-Magistrate that the respondent is a foreigner stands the respondent should be convicted. But, this finding itself is erroneous as will presently be shown.
4. The real question in the case is a short and simple one which falls directly within the following observation of the Supreme Court in the State of Andhra Pradesh v. Abdul Khader (AIR 1961 SC 1467).
"The question whether a person is an Indian citizen or a foreigner, as distinct from the question whether a person having once been an Indian citizen has renounced that citizenship and acquired a foreign nationality, is not one which is within the exclusive jurisdiction of the Central Government to decide. The Courts can decide it and, therefore, the learned Magistrate could have done so. He however, did not decide that question, that is, find that the respondent had been a Pakistani National all along. On the evidence on the record such a finding would not have been warranted."
(The counsel of the respondent tells us that there are other decisions also of the Supreme Court on the point; but we do not think they a
