Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 7
PETITIONER:
STATE OF GUJARAT
Vs.
RESPONDENT:
YAKUB IBRAHIM
DATE OF JUDGMENT03/12/1973
BENCH:
BEG, M. HAMEEDULLAH
BENCH:
BEG, M. HAMEEDULLAH
CHANDRACHUD, Y.V.
CITATION:
1974 AIR 645 1974 SCR (2) 572
1974 SCC (1) 283
ACT:
Citizenship Act, 1955, Section 9(2)-Central Govt.’s decision
on whether a person has acquired-foreign citizenship or not-
Foreigner’s Act, 1946, S. 14-Foreigner’s Order 1958 clause
7(iii)-Plea of the accused that without the determination by
the Central Government u/s 9(2) of the Citizenship Act
proceedings under the Foreigner’s Act incompetent-Court has
no jurisdiction either to acquit or convict the accused
without the prior decision of the Central Government u/s
9(2) of the Citizenship Act.,
HEADNOTE:
The respondent was prosecuted under clause 7(iii) of the
Foreigner’s Order, 1958 read with Sec. 14 of the Foreigner’s
Act, 1946 for over staying in India after the expiration of
the permit. The respondent had entered India on a Pakistani
passport. At the trial, the respondent produced evidence to
show that he was a citizen of India when the Constitution
came into force on 26-1-1950 and never migrated to Pakistan
to obtain the citizenship of that country. He further
stated that he had to obtain the Pakistani passport against
was volition. The respondent further urged that without the
decision of the Central Government u/s 9(2) of the
Citizenship Act as to whether he has acquired Pakistani
citizenship or not, the prosecution under the Foreigner’s
Act was incompetent. The trial Magistrate acquitted the
respondent, holding that he had proved that he was an Indian
citizen who never migrated to Pakistan. The High Court
upheld the acquittal as it thought that the prosecution had
not proved the only case set up by it namely that the res-
pondent was not an Indian citizen on 26-1-1950.
Quashing the charge and setting aside the acquittal,
HELD : (1) The real and decisive question to be considered
and decided was not whether the respondent possessed Indian
nationality and citizenship on 26-1-1950 but whether he had
lost that nationality at the time when he entered this
country on Pakistani passport. Without a decision of the
Central Government under section 9(2) of the Citizenship Act
on that question, the Criminal Court had no jurisdiction to
acquit or convict a person.
(II) After having examined the charge framed, the cases set
up by the two sides, the contentions advanced in the trial
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 7
court, the grounds of appeal of the High Court and those in
the special leave petition, we think that the question
regarding acquisition of foreign citizenship by the
respondent was the decisive question. The respondent had
himself raised the plea although he gave an impression that
the prosecution was inviting a decision on the legality of
the order of acquittal without obtaining a prior decision of
the Central Government under Sec. 9(2) of the Citizenship
Act. It was not proper for the prosecuting authorities to
have proceeded with a case without the determination of the
said question under sec. 9(2) of the Citizenship Act. [577
D]
(III) In view. of the erroneous procedure adopted on
behalf of the State in pressing for a conviction without
obtaining a decision from the appropriate authority,
quashing of the charge itself is the correct order. This
would leave the State free to follow the proper procedure
under law regarding the acquisition of foreign citizenship
by the respondent and then to prosecute the respondent. (577
H)
State of Andhra Pradesh v. Abdul Khader [1962] 1 S.C.R. 737,
Abdul Sattar v. State of Gujarat A.I.R. 1965 S. C. 810 and
Akbarkhan v. Union of India [1962] 1 S.C.R. 779, followed.
Kulathilmammu v. State of Kerala [1966] 3 S.C.R. 706,
referred to.
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 164 of
1970.
Appeal by special leave from the Judgment and order dated
the 3rd/ 4th December, 1969 of the Gujarat High Court in
Criminal Appeal No. 295 of 1966.
573
R. H. Dhebar and S. P. Nayar, for the appellant.
A. S. Qureshi, Vimal Dave and Kailash Mehta for the
respondent.
The Judgment of the Court was delivered by
BEG, J.-This is an appeal, by special leave, against the
acquittal of the appellant, from a charge framed on 21-9-
1967 as follows:
"That you on or about the 31st day of March
1967 at about 9.30 p.m. were found in State
Transport Corporation Workshop at Naroda in
Ahmedabad, and you are a foreigner and you had
come from Pakistan and you had been permitted
to stay in India till 20th September, 1958, by
Assistant Secretary to the Government of
Bombay and did not depart from India before
expiring of that permit issued to you by No.
19904 dated 6-12-1967 before the date 20th
September 1958 and remained in India and
thereby you contravened the previsions of
clause 7(iii) of Foreigners Order 1948 and
thereby committed an offence punishab
le under
Section 14 of Foreigners Act 1946 and within
my cognizance".
The above mentioned charge was supported by the statement of
Mahmadmiya, P. W. 2, Sub Inspector, Special Emergency
Branch, Ahmedabad, showing that the appellant was working in
Baroda Central State Transport Workshop when he was arrested
as a consequence of the information that he was a Pakistani
national who had come to India in 1955 on a Pakistani
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 7
passport. The accused had produced his Pakistani passport
(Ex. 11) dated 8th September, 1955. The prosecution had
also relied upon an application for a visa made by the
accused to the High Commissioner for India in Pakistan on
10th October, 1955, in which he had, inter alia, stated that
he had migrated from India to Pakistan in 1950.
Undoubtedly, the prosecution was handicapped in producing
evidence to show when and how and with what intention the
appellant had gone to Pakistan. It could only show how and
when and on what passport he returned to this country.
The accused-respondent had produced credible evidence to
prove: that, he was born at Dhandhuka in the State of
Gujarat on 15th May, 1936; that, he was living at Dhandhuka
and attendee school there until 1952 when he moved to
Ahmedabad with his father; and, that he had gone to Pakistan
in a state of anger while he was a minor, after a quarrel
with his father who had driven him out of his house. The
respondent denied that he had the intention of settling down
in Pakistan. He asserted that within six months of his
arrival in Pakistan he regretted having left India and tried
to come back to his home. He alleged that, as he was unable
to come home without a Pakistani passport, he had to apply
for and get one. The respondent asserted that he was an
Indian citizen when the Constitution came into force on 26th
January, 1950, and that he had continued to be an Indian
citizen thereafter as he had never migrated to Pakistan.
His explanations about
1--M602Sup.CI/74
574
the passport and the visa application implied that he had
obtained the passport by making false declarations and that
the statement in the visa application, that he bad migrated
to Pakistan in 1950, was one of those untrue declarations
which had been made only to obtain a passPort. Probably lie
had to show under the law in Pakistan that he had settled
down in Pakistan and become a Pakistani national before
obtaining a Pakistani passport.
The judicial Magistrate had acquitted the respondent after
examining the cases set up by the two sides and holding that
the respondent had proved that he was an Indian citizen who
had never, in fact migrated to Pakistan. In an appeal
against the acquittal the High Court of Gujarat had upheld
the acquittal and confirmed the finding that the appellant
was an Indian citizen when the Constitution came into force
on 26th January, 1950. It had also held that the appellant
was a minor when he visited Pakistan. It had found it
unnecessary to record a finding en the question whether the
appellant’s visit to Pakistan could be held to be one made
under compulsion or for a specific purpose so as to come
within the class of those exceptional cases mentioned in
Kulathil Mammu. v. The State of Kerala (1) in which a
"migration" would not take place even if the wider test of
the term migration were adopted. That wider test would
apply to those who had gone to Pakistan in the period
between 1st March, 1947, and the commencement of the
Constitution, It has to be remembered that Article 7 of the
Constitution was held, in Kulathil Mammut’s case (supra), to
contain an exception to the operation of Article 5 of the
Constitution for conferring citizenship of India on persons
who, at the commencement of the Constitution, had satisfied
the test of Indian domicile.
The general principle laid down by Article 5 was that
citizenship followed domicile at the commencement of the
Constitution. But. the "migration" as contemplated by
Article 7 was held, in Kulathil Mammu’s case (supra), to
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 7
have a wider meaning than change of domicile. Hence, the
view of this Court in Smt. Shanno Devi v. Managin Sain (2)
was overruled. It has, however, to be remembered that in
Kulathil Mammu’s case (supra), where the alleged migrant,
who was also a minor at the time of the alleged migration,
had gone to Karachi in 1948 which was before the
commencement of the Constitution. in the case before us, the
finding of the Trial Court as well as the High Court, on the
evidence before them was that the appellant had. as he
asserted, gone to Pakistan in 1953-54 which was after the
commencement of the Constitution. Hence, the case of the
respondent could not fall within the classes to which
Article 7 was especially intended to apply. Article 7 had
necessarily to be read with Articles 5 and 6 of the
Constitution and not in isolation.
’The High Court had come to the conclusion that as the only
case set up by the prosecution was that the respondent had
migrated before the 26th January. 1950, it need not consider
and decide the question
(1) [1966] 3 S.C.R. 706.
(2) [1961] 1 S.C.R. 576.
575
whether he had gone to Pakistan after 26th January, 1950,
and thus had voluntarily acquired Pakistani nationality and
lost Indian citizenship. If, as it rightly held, it had
been proved that the respondent went to Pakistan after 26th
January, 1950, Article 5 of the Constitution would still
operate in his favour. The High Court rightly pointed out
that, as the respondent was an Indian citizen on the date of
the commencement of the Constitution, entitled to the
benefit of article 5 of the Constitution, the further
question whether he had lost Indian citizenship after that
date or not, could only be decided by the Central Government
as laid down in section 9 of the Indian Citizenship Act. It
acquitted the respondent because it thought that the
prosecution had not proved the only case set up by it. We
have, therefore, to examine the charge framed against the
respondent so as to determine whether the view of the High
Court that the only question which need be considered by it
was whether the respondent was an Indian citizen on 26th
January, 1950, was correct.
We find, from the charge set out above, that the prosecution
case was not confined to the determination of the
citizenship of the respondent at the time of the
commencement of the Constitution. We also find that the
respondent had himself raised the question whether, on the
facts set up by him, the prosecution could proceed at all in
view of section 9 of the Citizenship Act. The Trial Court
had observed
"The lawyer of the accused argued that under
Section 9 of the Citizenship Act 1955 the
question whether any citizen of India had any
time between the 26th day of January, 1950 and
the commencement of the Citizenship Act 1955
acquired the citizenship of another country
was to be determined by the Central
Government. A court should not decide whether
an Indian citizen had acquired the citizenship
of another country. The police prosecutor
argued that as the accused had gone to
Pakistan and he obtained Pakistani Passport
the accused must be held to be national of
Pakistan and so a citizen of Pakistan and so
is foreigner in India and so the accused must
be convicted of the offence u/s. 14 of the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 7
Foreigners’ Act read with clause 7(3), rule
(iii) of Foreigners’ Order 1948. The Court
had jurisdiction to decide whether the accused
is a foreigner. if the accused wanted to get
it decided that he is yet citizen of India,
the accused should apply to the Central
Government and get decision under section 9(2)
of the Citizenship Act 1955. The clause (3)
of Schedule III of the Citizenship Rules 1956
provides that the fact that a citizen of India
has obtained on any date a passport from the,
Government of any other country shall be
conclusive proof of his having voluntarily
acquired the citizenship of the country before
that date. As this accused has come from
Pakistan to India, the Police Prosecutor
argued, the accused should be convicted of the
offence u/s. 14 of Foreigners’ Act read with
clause 7(3) (iii) of Foreigner’s order".
576
We also find from the grounds of appeal against the
acquittal of the, respondent, the appellant’s application
for certificate of fitness for appeal to this Court under
Article 134 of the Constitution, and from the special leave
petition under Article 136 of the Constitution in this
Court, that the prosecution had been inviting a decision on
the question whether an order of acquittal could be passed
without deciding a question which fell within the purview of
Section 9 of the Indian Citizenship Act.
It was not proper for the prosecuting authorities to have
proceeded with the case against the respondent, when, upon
the facts set up by the respondent, it became clear that the
respondent could not be prosecuted or convicted without a
determination under Section 9 of the Citizenship Act, 1955,
that he had voluntarily acquired the citizenship of Pakistan
between 26th January, 1950, and the commencement of the
Citizenship Act on 30th December, 1955. This Court has re-
peatedly laid down that if such a question arises in the
course of a trial, it must be left for decision by the
appropriate authorities. It may be that the rules framed by
the Central Government under Section 30, sub. s (2) of the
Citizenship Rules, under Section 18 of the Citizenship Act,
had provided that the passport shall be conclusive proof
that its holder has acquired the citizenship of the country
whose passport he holds. We, however, do not know whether
the Central Government has modified such a rule. When the
validity of that rule came up for consideration before a
Bench of seven judges of this Court, an assurance was given
on behalf of the Central Government that a suitable modi-
fication of the relevant rule would be made. However, that
question is not under consideration before us now. All we
need consider here is whether the acquittal of the
respondent was, in the circumstances disclosed above,
justified.
in view of Section 9(2) of the Citizenship Act, which has
been subject-matter of several decisions of this Court (See
: State of Andhra Pradesh v. Abdul Khader (1); Abdul Sattar
v. State of Gujarat (2): and Akbar Khan v. Union of India
(3), the question whether a person voluntarily acquired the
citizenship of Pakistan during the specified period, could
’only be determined by the Central Government. In Akbar
Khan’s case (Supra) it was observed by this. Court: (at
page 782)
"If it was found that the appellants had been
on January 26, 1950, Indian citizens, then
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 7
only the question whether they had renounced
that citizenship and acquired a foreign
citizenship would arise. That question the
Courts cannot decide. The proper thing for
the court would then have been to stay the
suit till the Central Government decided the
question whether the appellants had renounced
their Indian citizenship and acquired a
foreign citizenship and then dispose of the
rest of the suit in such manner as the
decision of the Central Government may
justify’
(1) [1962] 1 S.C.R. 737. (2) A.I.R. [1965] S.C. 810
(3) [1962] 1 S.C.R. 779.
577
On principle it does not matter whether the question which
can only be determined by the Central Government under
Section 9 of the Citizenship Act arises in a civil suit or
in a criminal prosecution. If the real question which
arises for determination is whether a person, who was an
Indian citizen when the Constitution came into force, had
acquired the citizenship of another country or not during
the specified period, the proper thing to do for a Court
where the question arises is to refuse to adjudicate on that
question. In the case before us it appears that the issue
was raised but not decided either in the Trial Court or in
the High Court. Indeed, the judgment of the High Court
shows that probably for this very reason the prosecution had
tried to obtain the conviction of the respondent on the
ground that he had acquired Pakistani citizenship before the
commencement of the Constitution. That question had been
rightly decided against the appellant. on that short ground
the acquittal of the appellant could have been upheld if the
prosecution case was confined to that question. But, after
having examined the charge framed, the cases set up by the
two sides, the contentions advanced in the Trial Court, the
grounds of appeal to the High Court, and those given in the
special leave petition in this Court, we think that a
question of Jurisdiction of the criminal courts to record
either a conviction or acquittal in the case of the
respondent had properly arisen. Indeed, the real and
decisive question to be considered and decided was not
whether the respondent possessed Indian nationality and
citizenship on 26th January, 1950, but whether he had lost
that nationality at the time when he entered this country on
a Pakistani passport. The respondent has been charged for
overstaying contrary to the terms of the permit issued on
6th December, 1957, by which he was allowed to stay until
20th December, 1958. Therefore, it was clear that the
decisive question which the Courts should have considered
was whether, at the time when permission was given, and when
the alleged overstay, contrary to the provisions of clause
7(iii) of the Foreigners’ Order, 1958, took place, the
respondent was a foreigner. Without a decision of an
appropriate authority on that question neither an acquittal
nor a conviction could be recorded. As no finding can be
given by criminal or civil Courts, in a case in which an
issue triable exclusively by the Central Government has
properly arisen, the question of burden of proof, dealt with
in Section 9 of the Foreigners’ Act, 1946, is immaterial.
However, in view of the erroneous procedure adopted on
behalf of the State in pressing for a conviction when it was
clear that the charge could not succeed at all without
obtaining a decision from the appropriate authority, we
think that the correct order to pass in this case is
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 7
578
not just to stay further proceedings after quashing the
acquittal so as to await the decision of the appropriate
authority but to quash the charge itself so that the accused
may be discharged. This would leave the State free to
prosecute the respondent if and when a decision is obtained
against him from the appropriate authority in accordance
with the law. That authority will no doubt consider all the
relevant facts, including the total period of the
respondent’s stay in this country as compared with the short
period of his stay in Pakistan and the circumstances in
which the respondent alleges having obtained a Pakistani
passport and made a false statement in the visa application
relied upon by the prosecution.
The result is that we allow this appeal and set aside the
acquittal of the respondent. We also quash the charge
framed against the respondent and order that he be
discharged.
S.B.W. Appeal allowed.
579