Facts
The petitioner, Shamar Ali, challenged an opinion dated 14.08.2018 passed by the Foreigners Tribunal-2nd, Morigaon, which declared him a foreigner who entered India after 25.03.1971.
Source reference: p. 3, para. 2The Police Reference was initially directed only against the petitioner, but the Superintendent of Police (Border) included his family in the reference to the Tribunal.
Source reference: p. 6, para. 12During the Tribunal proceedings, the petitioner defended himself, his wife, and his son, and examined four witnesses.
Source reference: p. 6, para. 11The Tribunal recorded the cross-examination of the petitioner (DW-1) and his father-in-law (DW-2) on 03.03.2017 despite the absence of a Government Pleader.
Source reference: p. 5-6, para. 10Ultimately, the Tribunal discarded documents relating to the wife and son on the ground that there was no reference against them, while also finding the petitioner's evidence untrustworthy.
Source reference: p. 5, para. 9Issues
1. Whether the procedure adopted by the Tribunal in recording cross-examination in the absence of a Government Pleader was legally sustainable.
Source reference: p. 6, para. 102. Whether the Tribunal erred in proceeding against the petitioner’s wife and son in the absence of a specific reference or enquiry against them.
Source reference: p. 7, para. 133. Whether the Tribunal’s opinion holding the petitioner to be a foreigner was vitiated by procedural impropriety.
Source reference: p. 7, para. 15Law Applied
Section 165 of the Evidence Act, 1872 (corresponding to Section 168 of the Bharatiya Sakshya Adhiniyam, 2023), which empowers a Judge to ask any question to witnesses to discover relevant facts but does not permit the Judge to assume the role of a prosecutor.
Source reference: p. 6, para. 10; p. 7, para. 15Foreigners Tribunal Order, 1964, specifically Order 3(14) regarding the timeline for disposal.
Source reference: p. 9, para. 16(vii)Article 226 of the Constitution of India regarding the High Court's power of judicial review and superintendence.
Source reference: p. 3, para. 2; p. 10, para. 18Reasoning
The Court found that the Tribunal’s conduct was "highly improper" because it recorded the testimonies of DW-1 and DW-2 as "cross-examination" when no Government Pleader was present to conduct such an exercise.
Source reference: p. 6, para. 10By doing so, the Tribunal "donned the gown of a prosecutor" while simultaneously acting as the judge, which vitiated the proceedings.
Source reference: p. 7, para. 15The Court held that the Tribunal acted illegally by registering cases and issuing notices against the petitioner's wife and son when the initial police enquiry and reference were limited solely to the petitioner.
Source reference: p. 7, para. 13This procedural lapse forced the petitioner to divide his defense among three parties, potentially compromising his own case.
Source reference: p. 7, para. 14The Court noted a systemic lack of proper "Memorandums of Proceedees" in Tribunals, leading to individuals being tried without formal references.
Source reference: p. 9, para. 17Holding
The High Court allowed the writ petition in part, setting aside the Tribunal’s opinion dated 14.08.2018.
The Court remanded the matter to the Foreigners Tribunal-2nd, Morigaon, for fresh consideration starting from the stage of cross-examination of DW-1 and DW-2, directing the petitioner to appear by 30.05.2026 and ordered the Tribunal to pass an order clarifying that the reference is only against the petitioner, not his family. The Court also issued a general directive to all Foreigners Tribunals in Assam to prepare a "Memorandum of Proceedee(s)" for all references.
Source reference: p. 8, para. 16(i), (ii), (v); p. 10, para. 18Original Court PDF
Shamar Ali @ Samar AlivsThe Union Of India And 5 Ors.
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