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High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE T S ARUNACHALAM
Hajee M. Mohamed Kassim and Others - Appellant
Versus
Sub Inspector of Police, Kottar Police Station, Nagercoil - Respondents
Crl. M.P. Nos. 12824, 12826, 12828 of 1986 and 817 of 1987
Decided On : 16 August 1990
FOREIGNERS ACT - CITIZENSHIP - SECTION 9(2), 14 - FOREIGNERS ORDER, 1948 - PARA 7 - CITIZENSHIP ACT - SECTION 32, SCHEDULE III, CLAUSE (3) - INTERPRETATION - PROSECUTION OF INDIAN CITIZENS FOR OVERSTAYING WITHOUT PERMIT - REQUIREMENT OF DETERMINATION OF FOREIGN CITIZENSHIP BY CENTRAL GOVERNMENT - BURDEN OF PROOF - APPLICABILITY OF FOREIGNERS ACT.
Fact of the Case:
Four petitioners, all Indian citizens by birth, were prosecuted for overstaying in India without a permit under the Foreigners Act, 1946, and the Foreigners Order, 1948. They claimed that they had obtained foreign passports due to circumstances beyond their control and had not voluntarily relinquished their Indian citizenship.
Finding of the Court:
The court held that the petitioners could not be prosecuted under the Foreigners Act without a determination by the Central Government, under Section 9(2) of the Citizenship Act, 1955, that they had voluntarily acquired foreign citizenship. The court relied on previous Supreme Court decisions holding that the question of citizenship is to be decided by the Central Government and that a prosecution for overstaying cannot proceed until such a determination is made.
Issues: 1. Whether the petitioners, who were Indian citizens by birth, could be prosecuted under the Foreigners Act without a determination by the Central Government that they had voluntarily acquired foreign citizenship. 2. Whether the burden of proof was on the petitioners to show that they were Indian citizens.
Ratio Decidendi: The court held that the petitioners could not be prosecuted under the Foreigners Act without a determination by the Central Government that they had voluntarily acquired foreign citizenship. The court relied on the following legal principles: 1. Section 9(2) of the Citizenship Act, 1955, and Rule 30 of the Citizenship Rules, 1956, provide that the Central Government is the only authority that can determine whether a person has voluntarily acquired foreign citizenship. 2. A prosecution for overstaying cannot proceed until such a determination is made by the Central Government. 3. The burden of proof is on the prosecution to establish that the petitioners would answer the description of 'foreigner' contemplated under the provisions of the Foreigners Act.
Final Decision: The court allowed the petitions and quashed the proceedings against the petitioners. The court directed that the petitioners could be prosecuted if and when a decision was obtained against them from the appropriate authority in accordance with law.
Though the petitioners are different in these petitions, they are disposed of together since a common question of law is involved. These petitions have been filed u/S. 482 Code of Criminal Procedure, with a prayer to call for the records and quash the proceedings pending against each of them in C.C. Nos. 447/86, 448/86, 449/86 and 446/86 respectively on the file of the Chief Judicial Magistrate, Kanyakuari at Nagercoil.
2. The petitioner in each one of these petitions, is being prosecuted by the respondent, who is the Sub Inspector of Police, Kottar Police Station, Nagercoil for the alleged commission of an offence punishable u/S. 14 of the Foreigners Act, 1946 read with Para 7 of the Foreigners Order, 1948.
3. Facts, in brief, in each one of these petitions will have to be stated.
4. Crl.M.P. No. 12824/1986 :- The petitioner, a citizen of India by birth, had obtained a Malaysian passport and while he arrived in India on 6-2-1988, 1984 ? he was permitted to stay in the country till 16-10-1984 in terms of the residential permit issued to him. The petitioner is stated to have overstayed in India without obtaining extension and is therefore liable to be punished under the provisions aforestated. However, the petitioner, in this case as in the other cases, claims that he was born at Kottar, Nagercoil and he as well as his forefathers are also citizens of India. He went over to Malaysia for eking out his livelihood and as such, he was not a permanent resident of that country. After Independence, some restrictions were imposed by the Government of Malaysia on foreigners in that country and, in order to carry on business, he was forced by circumstances beyond his control to comply with the requirements imposed by the laws of that country. The petitioner had no intention or thought of relinquishing or surrendering his Indian citizenship and, solely with a view to preserve his economic interests and to facilitate his carrying on of business, he had obtained Malaysian passport as a citizen of that country. He returned to India after closing his business affairs in Malaysia and had settled permanently in this country from 6-2-1983. While so, he received a memo on 1-8-1986 from the District Superintendent of Police, Crime Branch, Nagercoil, directing his attendance before him, with his travel documents for scrutiny, failing which his application for extension of stay would not be considered. The petitioner claims to have refuted the allegations contained in the memo and explained to the authority, that as an Indian citizen by birth, who had not voluntarily surrendered his citizenship merely by obtaining a Malaysian passport, there was no need for any further extension of stay permit as he was entitled to continue to be in this country as an Indian citizen. This prosecution was thereafter initiated against him.
5. Crl.M.P. No. 12826/1986 :- As in the earlier case, the petitioner in this petition was born in India in 1919. He, his parents and forefathers are all Indian citizens. For eking out his livelihood he went over to Singapore. After Independence, due to restrictions imposed by the Government of Singapore on foreigners, he was forced by circumstances beyond his control to obtain a Singapore passport, without any intention of relinquishing or surrendering his Indian citizenship. He returned to India on 5-5-1984 after closing down his establishments at Singapore. The petitioner herein also received a communication from the police directing him to produce his travel documents and, though he had pleaded that he was an Indian citizen, without any enquiry the prosecution had been launched.
6. Crl.M.P. No. 12828/1986 :- The petitioner, an Indian citizen by birth, as also his parents and forefathers, went over to Malaysia for eking out livelihood. He had to obtain a Malaysian passport because of the restrictions imposed by the Government of Malaysia on foreigners, though he had no intention or thought of relinquishing or surrendering h
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