Back
1967 Supreme(Goa) 22
Goa High Court
V.S.JETLEY
Sebastiao Francisco Xavier dos Remedios Menteiro Bardez-Goa - Appellant
Versus
State - Respondent
Decided On : 11/17/1967
Antonio Anastracio Bruto da Costa, for Petitioner; S. Tamba, for the State.
The Geneva Convention Relative to the Protection of Civilian Persons in Time of War of August 12th, 1949, ceased to apply to the territories of Goa, Daman and Diu with effect from 27th March, 1962, when they became integrally and constitutionally a part of India by virtue of the Constitution (Twelfth Amendment), 1962, enacted on that day.
Headnote:
FOREIGNERS ACT, 1946 - S. 3(2)(c) - GENEVA CONVENTION RELATIVE TO THE PROTECTION OF CIVILIAN PERSONS IN TIME OF WAR OF AUGUST 12TH, 1949 - APPLICABILITY - CONSTRUCTION - PROTECTED PERSON - EXPULSION - CERTIFICATE OF FITNESS FOR APPEAL TO SUPREME COURT UNDER ARTICLE 134(1)(C) OF THE CONSTITUTION - SCOPE.
Fact of the Case:
The petitioner, a Portuguese national, was convicted for contravening an order made by the Lt. Governor under S. 3(2)(c) of the Foreigners Act, 1946, requiring him to leave India. He challenged the order on the ground that he was a protected person under the Geneva Convention Relative to the Protection of Civilian Persons in Time of War of August 12th, 1949, which was applicable to the territories of Goa, Daman and Diu, and that the order was therefore ultra vires.
Finding of the Court:
The High Court held that the Convention ceased to apply to the territories of Goa, Daman and Diu with effect from 27th March, 1962, when they became integrally and constitutionally a part of India by virtue of the Constitution (Twelfth Amendment), 1962, enacted on that day. India then ceased to be an "Occupying Power" and the said territories ceased to be an "Occupied Territory" for the purpose of Convention; (2) that the petitioner was a protected person for the purposes of rights and duties under the Convention but this protection he lost after the Convention ceased to apply; (3) that the Convention does not create permanent rights in favour of protected persons; and (4) that the Convention being inapplicable, a Sovereign State - like India - can expel the petitioner who is a foreigner.
Issues: 1. Whether the Geneva Convention Relative to the Protection of Civilian Persons in Time of War of August 12th, 1949, continued to apply to the territories of Goa, Daman and Diu after they became integrally and constitutionally a part of India by virtue of the Constitution (Twelfth Amendment), 1962? 2. Whether the petitioner was a protected person under the Convention? 3. Whether the order of the Lt. Governor requiring the petitioner to leave India was ultra vires?
Ratio Decidendi: 1. The Convention ceased to apply to the territories of Goa, Daman and Diu with effect from 27th March, 1962, when they became integrally and constitutionally a part of India by virtue of the Constitution (Twelfth Amendment), 1962, enacted on that day. 2. The petitioner was a protected person for the purposes of rights and duties under the Convention but this protection he lost after the Convention ceased to apply. 3. The Convention does not create permanent rights in favour of protected persons. 4. A Sovereign State - like India - can expel a foreigner who is not a protected person.
Final Decision: The petition for the certificate applied for is accordingly dismissed.
2. The 'Geneva Convention Relative To The Protection of Civilian Persons In Time of War of August 12th, 1949', was ratified by the President on the 16th October, 1950, and came into force in India on the 9th May 1951. The Geneva Conventions Act, 1960 (Act VI of 1960), was enacted by Parliament to give legislative effect to this Convention, which is set out in the Fourth Schedule appended to the Act. The Act also gives legislative effect to three other Conventions, set out in the First, Second and Third Schedules with which we are not concerned in this case. The main findings recorded by this Court in revision were (1) that the Convention set out in the Fourth Schedule ceased to apply to the territories of Goa, Daman and Diu with effect from 27th March, 1962, when they became integrally and constitutionally a part of India by virtue of the Constitution (Twelfth Amendment), 1962, enacted on that day. India then ceased to be an "Occupying Power" and the said territories ceased to be an "Occupied Territory" for the purpose of Convention; (2) that the petitioner was a protected person for the purposes of rights and duties under the Convention but this protection he lost after the Convention ceased to apply; (3) that the Convention does not create permanent rights in favour of protected persons; and (4) that the Convention being inapplicable, a Sovereign State - like India - can expel the petitioner who is a foreigner.
3. Article 134(1)(c) of the Constitution provides that an appeal shall lie to the Supreme Court from any judgment, final order or sentence in a criminal proceeding of a High Court if the High Court certifies that the case is a fit one for appeal to the Supreme Court. This Article confers a right on the party aggrieved to apply for a certificate and it is for the High Court to consider whether it should be granted. It is necessary to refer to certain decisions on the scope of this Article before considering the arguments at the Bar. It is well settled that the Supreme Court is not an ordinary Court of Criminal Appeal. The discretion under this Article is a judicial discretion to be exercised sparingly and with care. This discretion has to be exercised after considering what difficult or substantial questions of law or principle are involved which require an authoritative interpretation by the Supreme Court. The Article does not confer an unlimited jurisdiction on the High Courts. It applies in an extraordinary case. The High Courts should not overlook that there is a further remedy by way of special leave which may be invoked when the certificate is refused. 'Nar Singh v. State of U.P.' AIR 1954 SC 457; 'Sunder Singh v. State of U.P.' AIR 1956 SC 411; 'Baladin v. State of U.P.' AIR 1956 SC 181; 'Khushal Rao v. State of Bombay' AIR 1958 SC 22; and 'Babu v. State of U. P.' AIR 1965 SC 1467. It is also well settled that the p
