Full Judgment Text
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PETITIONER:
MASUD KHAN
Vs.
RESPONDENT:
STATE OF UTTAR PRADESH
DATE OF JUDGMENT26/09/1973
BENCH:
ALAGIRISWAMI, A.
BENCH:
ALAGIRISWAMI, A.
KHANNA, HANS RAJ
SARKARIA, RANJIT SINGH
CITATION:
1974 AIR 28 1974 SCR (1) 793
1974 SCC (3) 469
ACT:
Foreigners (Internment) Order, 1962--Proceedings under, if
Criminal--Issue-Estoppel.
Foreigners Act (13 of 1946), s. 9--Person with Pakistani
passport claiming to be Indian citizen--Burden of proof.
HEADNOTE:
The petitioner came to India from Pakistan on the basis of a
Pakistani passport of July 1954 and Indian visa of April,
1956. On his arrest under the Foreigners (Internment)
Order, 1962, he contended that he was an Indian citizen and
that he had been illegally arrested and confined in jail.
HELD : (I) Under s. 9 of the Foreigners Act whenever a
question arises whether a person is or is not a foreigner
the onus of proving that he is not a foreigner lies upon
him. If the petitioner had been in India on 26-1-1950 but
had gone to Pakistan in 1951, it would be for the Central
Government to decide whether he is a Pakistani national or
an Indian citizen even though he may have come lo India on a
Pakistani passport in 1956. But, when he went to Pakistan
is a matter peculiarly within his knowledge and he had not
produced any evidence in support of his statement that he
went to Pakistan only in 1951. The burden is upon the
petitioner to establish that he is a citizen of India in the
manner claimed by him and this burden, not having been dis-
charged by him, it should be held that he is a foreigner and
his claim that he is an Indian citizen must be rejected.
[794 C-H]
(2) The petitioner was prosecuted under s. 14 of the
Foreigners Act and was acquitted on the ground that he was
not a foreigner; but this finding would not operate as
issue-estoppel. Issue-estoppel arises only if the earlier
as well as subsequent proceedings were criminal
prosecutions. In the present case, while the earlier one
was a criminal prosecution, the latter is not a criminal
prosecution, but merely action taken under the Foreigners
(Internment) Order for the purpose of deporting the
petitioner out of India. [794H; 795D-E; 796 HI
Pritam Singh v. State of Punjab, A.I.R. 1956 S.C. 415,
Manipur Administration v. Thokchom, Bira Singh [1964] 7
S.C.R. 123, Piara Singh v. State of Punjab [19691 1 S.C.C.
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379, referred to.
Sambasivam v. Public Prosecutor, Federation of Malaya [19501
A.C. 458, The King v. Wilkes 77 C.L.R. 511 and Marz v. The
Queen TF C.L.R. 62, applied.
JUDGMENT:
ORIGINAL JURISDICTION : Writ Petition No. 117 of 1973.
Under Article 32 of the Constitution of India for issue of a
writ in the nature of have as corpus.
Uma Datta, for the petitioner.
D. P. Uniyal and 0. P. Rana for the respondent.
The Judgment of the Court was delivered by
ALAGIRISWAMI, J. Petitioner Masud Khan prays for his release
on the ground that he, an Indian citizen has been illegally
arrested and confined to, jail under Paragraph 5 of the
Foreigners (Internment) Order, 1962. He had come to India
from Pakistan on the basis of a Pakistani passport dated 13-
7-1954 and Indian visa dated 9-4-1956. In his application
for visa he had stated that he had migrated to Pakistan in
1948 and was in Government service in Pakistan in P.W.D.
794
as a Darogha and had given his permanent address as
Hyderabad (Sind). If these statements were correct the
petitioner would clearly be a Pakistani national. When this
fact was brought out in the counter affidavit filled on
behalf of the respondent, the petitioner filed a further
affidavit stating that he was appointed as a Police
Constable in Hasanganj Police Station, District Fatehpur,
U.P. in February 1947 and continued as a Police Constable
till the middle of 1950 when he was dismissed from service,
and that he went to Pakistan in the year 1951. In the reply
affidavit filed on behalf of the respondent it is stated
that one Md. Masood Khan son of Zahoor Khan was enrolled as
Police Constable on 16-9-1947 and he was discharged from
service on 20-5-1949. It is fairly clear that this
information culled from the English Order Book from 1-10-
1947 to 27-12-1951 refers to the petitioner. While,
therefore, it is established that the petitioner did not go
to Pakistan in 1948, it cannot be said that it has been
established that the petitioner went to Pakistan only in
1951. When he went to Pakistan is a matter peculiarly
within his knowledge and the produced no evidence in support
of that statement. Considering the frequent change of
ground which the petitioner has resorted to, a mere
statement from him cannot be accepted as true. Nor can we
accept his contention that it is for the respondent to
establish that lie did not go to Pakistan in 1951 but that
he went on some other date. The petitioner has also alleged
that he was married in U.P. on 25th December, 1949. Even
assuming that this statement is correct, the petitioner
cannot establish that he is a citizen of India unless lie
succeeds in establishing that he was in India on 26-1-1950.
If he bad been in India on 26-1-1950 but had gone to
Pakistan in 1951 it would be for the Central Government to
decide whether he is a Pakistani national or an Indian
citizen even though he may have come to India on a Pakistani
passport in 1956 (See AIR 1963 SC 645; AIR 1962 SC 1052; AIR
1962 SC 1778; AIR 1961 SC 1467). That question does not
arise here.
We are not prepared to assume that the petitioner should be
deemed to have been present in India on 26-1-1950, as was
urged on behalf of the petitioner. There is no room for any
such presumption. Under s-9 of the Foreigners Act whenever
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a question arises whether a person is or is not a foreigner
the onus of proving that he is not a foreigner lies upon
him. The burden is therefore, upon the petitioner to
establish that be is a citizen of India in the manner
claimed by him and therefore be is not a foreigner [See
[19621 1 SCR 744; [1963] Supp. SCR 5601. This burden not
having been discharged by the petitioner it should be held
that he is a foreigner and his claim that he is an Indian
citizen cannot be dealt with under the Foreigners
(Internment) Order, 1962 must be rejected.
It appears, however, that in 1960 he had been prosecuted
before the Sub-Divisional Magistrate, Fatehpur under s. 14
of the Foreigner--, Act and was acquitted on the ground that
he was not a foreigner. It was therefore contended that the
question whether the petitioner is -a foreigner or not is a
matter of issue estoppel. The decision that he
795
was not a foreigner seems to have been based on the decision
of the Allahabad High Court in Mohd. Hanif Khan v. State
(AIR 1960 All. 434). It was held there that a Pakistani
national who entered into India before the amendment to the
Foreigners Act in 1957, when he could not be considered to
be a foreigner, could not be so held because of that
amendment. That decision was that of a learned Single
Judge. On the point at issue he differed from an earlier
decision of a learned Single Judge of the same Court in Ali
Sher v. The State (AIR 1960 All. 431). But he decided that
case before him on a different point and did not think it
necessary to refer the case before him to a Bench for
considering which of the two decisions was correct on the
question regarding the nationality of a person who came to
India on a Pakistani passport before 1957. There are thus
two conflicting decisions of the same court on the same
point and the Magistrate who decided the petitioner’s case
followed one of them.
But that apart, this matter could be decided on another
point.. The question of issue-estoppel has been considered
by this Court in Pritam Singh v. State,of Punjab (AIR 1956
SC 415), Manipur Administration v. Thokchom, Bira Singh
(1964 7 SCR 123) and Piara Singh S. State of Punjab (1969 1
SCC 379). Issue-estoppel arises only if the earlier as well
as the subsequent proceedings were criminal prosecutions.
In the present case while the earlier one was a criminal
prosecution the present is merely an action taken, under the
Foreigners (Internment) Order for the purpose of deporting
the petitioner out of India. It is not a criminal
prosecution. The principle of issue estoppel is simply this
: that where an issue of fact has been tried by a competent
court on a former occasion and a finding has been reached in
favour of an accused, such a finding would constitute an
estoppel or res judicata against the prosecution not as a
bar to the trial and conviction of the accused for a
different or distinct offence but as precluding the
reception of evidence to disturb that finding of fact when
the accused is tried subsequently, even for a different
offence which might be permitted by law. Pritam Singh’s
case (supra) was based on the decision of the Privy Council
in Sambasivam v. Public, Prosecutor, Federation of Malaya
(1950 A.C. 458). In that case Lord MacDermott
speaking for the Board said :
"The effect of a verdict of acquittal
pronounced by a competent court on a lawful
charge and after a lawful trial is not
completely stated by saying that the person
acquitted cannot be tried again for the same
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offence. To that it must be added that the
verdict is binding and conclusive in all
subsequent proceedings between the parties to
the adjudication."
It should be kept clearly in mind that the proceeding
referred to herein is a criminal prosecution. The plea of
issue-estoppel is not the same as the, plea of double
jeopardy or autre fois acquit. In The King v. Wilkes (77
C.L.R. 511) Divon, J. referring to the question of issue-
estoppel said.
79 6
view that there is an issue estoppel, if it appears by
record of itself or as explained by proper evidence, that
the same point was determined in favour of a prisoner in a
previous criminal trial which is brought in issue on a
second criminal trial of the same prisoners There must be
prior proceeding determined against the Crown necessarily
involving an issue which again arises in a subsequent
proceeding by the Crown against the same prisoner. The
allegation of the
Crown in the subsequent proceeding must itself be inconsis-
tent with the acquittal of the prisoner in the previous pro-
ceeding. But if such a condition of affairs arises I see no
reason why the ordinary rules of issue-estoppel should not
apply Issue-estoppel is concerned with the judicial
establishment of a proposition of law or fact between
parties. It depends upon well-known doctrines which control
the relitigation of issues which are settled by prior
litigation."
The emphasis here again would be seen to be on the
determination of ,criminal liability. In Marz v. The Queen
(96 C.L.R. 62) the High Court of Australia said
"The Crown is as much precluded by an estoppel by judgment
in criminal proceedings as is a subject in civil proceedings
The laws which gives effect to issueestoppel is not
concerned with the correctness or incorrectness of the
finding which amounts to an estoppel, still less with the
process of reasoning by which the finding was reached . in
fact It is enough that an issue or issues have been
distinctly raised or found. Once that is done, then, so
long as the finding stands, if there be any subsequent
litigation between the same parties, no allegations legally
inconsistent with the finding, may be made by one of them
against the other."
Here again it is to be remembered that the principle applies
to two criminal proceedings and the proceeding with which we
are now concerned is not a criminal proceeding. We
therefore hold that there is no substance in this
contention.
The petition is dismissed.
V.P.S.
Petition dismissed.
797