A. P. SRIVASTAVA, J.

( 1 ) THIS application in revision has been referred to this Bench for the decision of the following question :

"in order to sustain a conviction under Section 14 read with Section 3 (2) (C) of the Foreigners act, is it necessary to prove (a) that a permit was issued to the accused under Section 7 of the foreigners Order and (b) that the accused stayed on in India after the expiry of the period indicated in the permit or can the accused be convicted merely for staying on beyond the period shown in his visa?"

( 2 ) THE applicant Kalian Khan had migrated to Pakistan, He obtained a passport bearing No. 330624 from the Pakistan Government on the 5th July 1955 and also obtained Visa No. 28781-82 of the 26th March 1957. The visa was of category c. He entered India on the basis of the passport and the visa and reported his arrival at Police Station Mundha on the 30th March 1957. The District Magistrate of the place granted him a permit entitling him to remain in India till the 12th July 1957 and fixing the time of exit from India as the 14th July of that year. The permit was never extended but the applicant continued residing in India beyond the period fixed in the permit. On the 25th February 1958 a notice was given to him requiring him to leave india within thirty days but as he did not comply with it ho was prosecuted under Section 3 read with 14 of the Foreigners Act. The charge framed against him read as follows :

"that you on or about the 12th day of July 1957, being a foreigner, were found remaining in india without any valid passport and permission and thereby committed an offence punishable under Section 3/14 of Foreigners Act, 1946 and within my cognizance. "

( 3 ) THE applicant pleaded not guilty. He said that ho was an Indian national who had gone to pakistan but had come back from the place in 1957 because he could not get any employment there. He denied that he had been living in India without permission.

( 4 ) THE Magistrate, who tried the case, found the applicant guilty of the charge framed against him and sentenced him to undergo simple imprisonment, for one year and also to pay a fine of rs. 25. In default of the payment of fine he was directed to undergo further simple imprisonment for one month.

( 5 ) THE applicant preferred an appeal to the Sessions Judge who admitted the appeal on the point of severity of sentence. He dismissed the appeal but reduced the sentence to six months simple imprisonment but maintained the sentence of fine.

( 6 ) THE applicant then applied to this Court in revision and the application first came up for disposal before Mr. Justice Broom. He felt satisfied that the applicant was a foreigner at the time when he had re-entered India on the 29th March 1957 on the basis of his Pakistani Passport and the visa granted to him. It was contended before the learned Judge that the conviction of the applicant could not be maintained because the prosecution had not proved that any permit had been granted to him as required by paragraph 7 of the Foreigners Order 1948 and that he had overstayed that permit. It was urged on behalf of the State on the basis of the decision reported in Wahid Mian v. State, 1960 All LJ 179 : (AIR 1961 All 111), that irrespective of the question whether the permit was or was not issued a foreigner could be convicted for not leaving India within the period indicated in his visa. Mr. Justice Broom felt somewhat doubtful about the correctness of that decision and finding the question to be a question which was likely to arise in a large number of cases he referred the question which we have mentioned at the beginning of this judgment to a Division bench for decision.

( 7 ) IT is obvious that before the learned Judge the case was argued on the basis that though the applicant possessed a passport of the Pakistan Government and had also obtained the necessary visa there was nothing to show that he had obtained a permit for stay as required by paragraph 7 of the F

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