Citations: JUDGMENT 1965 AIR (SC) 810
Case Type: Criminal Appeal
Case No: 153 of 1961
Decided On: 17/02/1964
Petitioner: Abdul Sattar Haji Ibrahim Patel
Respondent: State Of Gujarat
Bench: P.B. Gajendragadkar (Cj), A.K. Sarkar, K.N. Wanchoo, K.C.D. Gupta, N.R
The Foreigners Act (XXXI of 1946),
S. 251-A (11)of the Criminal Procedure Code,
Article 5-9 of Constitution of India,
S. 9 (2) of the Citizenship Act,
State of Madhya Pradesh v. Peer Mahomed, 1963 AIR (SC) 645.),
Smt. Shanno Devi v. Mangal Sain, 1961 AIR (SC) 58),
lzhar Ahmad Khan v. Union of India, 1962 AIR (SC) 1052,
Government of Andhra Pradesh v. Mohd. Khan, 1962 AIR (SC) 1778).
- Abdul Satter Ibrahim Patel challenged the accuracy and legitimacy of the order passed by the Gujarat High Court and was convicted under S. 14 of Foreigners Act (XXXI of 1946) and was sentenced rigorous punishment for 1 year and he was fined 1,000 rupees in case he defaulted with a severe punishment of one year.
- The appellant was charged in front of Judicial Magistrate of 1st class. The allegations against him was he was a Pakistani citizens and therefore a foreigner, who obtained passport number 351544 from the Pakistani government on August 11, 1955 and had fortified “C” visa number 22144 on October 5, 1957.
- It was purported that he had moved in India on 13th October, 1957 with that passport and C Visa which gave him a residential permit up to 12TH December, 1957
- The above permit have been extended from time to time until April 12, 1958. The appellant is alleged to have lived in India in violation of clause 7 of Foreigners Act, , and hence he was liable to be liable to be punished under S. 14 of the Foreigners Act, 1946.
- The appellant alleged that he did not go to Pakistan at all until August 1954 to resist the charges thus filed against him. His parents were born in Godhra, and they and all his siblings are there in Godhra.
- He claimed the status of an Indian citizen and repudiated the charge against him that he was a non-national. As he described his marriage took place in Godhra, and before his marriage got his education in Godhra. In March 1948 his father-in-law, Yusuf Haji Ismail and took his wife along with him.
- In 1954, the appellant had to go to Pakistan to bring his wife back to India, he applied for a passport to travel to Pakistan, and obtained an Indian passport number C.041323 dated April 8, 1954. Did. After traveling to Karachi with his Indian passport, the appellant wanted to return to India with his wife, but his passport was deliberately taken away or destroyed by his father-in-law to keep him in Karachi. He was advised that he could not return to India without getting a Pakistani passport.
- The main question raised by the appellant in defending the accusations filed by Learned Magistrate was whether he would remain an Indian citizen at all times.
- There is no doubt about the true legal position regarding the status of a citizen like the appellant. Article 5 of the Constitution stipulates persons who reside in Indian Territory at the commencement of the Constitution and meet the three conditions specified by clause. (A), (b) and (c) of the same article must be Indian citizens.
- The three conditions are alternative, not cumulative. Therefore, if any of these conditions are met and you lived on the territory of India on January 26, 1950, you will be considered an Indian citizen.
- However, it is important to remember that the basic condition is that you must be resident in India on the day the Constitution came into force. If that condition is met, the person must show that he was born in India. Alternatively, either of his parents was born in India or had normally lived in India for more than 5 years shortly before such an onset.
- Article 7 relating to this appeal, regardless of what is contained in Articles 5 and 6, if a person has emigrated from Indian Territory to territory currently in Pakistan after March 1, 1947. It stipulates that person won’t be considered an Indian citizen
- This article has a proviso, but that proviso has nothing to do with our purpose. This article states that if a person emigrated from India to Pakistan after March 1, 1947, he could not claim the status of a citizen of India, although the point that he may satisfy the three situations prescribed by Article 5.
- It has been recognized by the decisions of this Court that the immigration must have taken place between March 1, 1947 and January 26, 1950 to which Art. 7 refers (vide State of Madhya Pradesh v. Peer Mahomed, 1963 AIR (SC) 645.)
- Cases in which a person has migrated after January 26, 1950, fall to be considered under Art. 9 of the Constitution. Article 9 provides that no. person shall be a citizen of India according to Art. 5, or be deemed, to be a citizen of India according Article. 6 or Art. 8 if he has voluntarily acquired the citizenship of any foreign State.
- If migration occurs after January 26, 1950, it will be subject to art. Constitution 9. Article 9 does not provide for that. One must be an Indian citizen by virtue of Art. 5, or considered an Indian citizen by virtue of Art 6 or Art. 8 If he himself willingly acquires foreign citizenship.
When the matter was argued before us, Mr. Bishan Narain stated that as a result of an earlier order passed by this Court, the record in regard to the appellant’s Indian Passport had been sent for and he wanted an opportunity to satisfy us that the said record fully established his case.
That is why though the appeal was argued elaborately before us on December 17, 1963, we ordered that it should be treated as part-heard, and gave opportunity to Mr. Bishan Narain to mention, it to us again after the record was received.
Thereafter part of the record has been received and the matter has been further argued before us. This record does not contain the Indian passport issued to the appellant on which he has relied. But it prima facie seems to support his case. The documents which have been sent to this Court indicate that the appellant had applied for a passport in March 1954, and after the said application was received by the District Magistrate, Panchmahal, the usual enquiry was made.
- The question asked is included in the document sent to this court, and the approval made for the inquiry item is also included in the document.
- These endorsements, read in light of the question, tend to show that on March 13, 1954, Godhra Deputy Police Inspector was satisfied with his own investigation of the appellant’s desire to go to his aunt and father-in-law who were staying in Pakistan where he went before the Godhra riots.
- According to the Deputy Inspector the endorsement further indicates that the appellant was an Indian citizen as of the relevant date, March 13, 1954, the deputy inspector also said he didn’t find any objection or reason for refusing an Indian passport to the appellant. If the content of this document is proven, there is no Difficulty in confirming the identity of the person referred to and the appellant.
- In that case, the appellant version that he was an Indian citizen until March 1954 and obtained a passport at that time would receive considerable support. Documented proof of this type, coming from official custody, would indisputably go a long way in support of the appellant when the Court considers the other evidence already presented by him
The court said, the court is inclined to take the view that the appellant should be given a chance to prove this evidence and the issue in question should be determined afresh in the light of this evidence and such other evidence as may be adduced by the parties hereafter, as well as the evidence already on record.
The appellant has been struggling to assert his status as a citizen of India during all these years, and it in fact he applied for Indian passport in March 1954, we see no. reason why he should not be given an opportunity to prove his case, particularly when the failure of the official witness to appear before the Court in time cannot be said to be the result of any default on the part of the appellant.
We would accordingly set aside the order of conviction and sentence passed by the High Court against the appellant and remand the case to the Court of the Judicial Magistrate, First Class, at Godhra, with the direction that he should give opportunity to the appellant and the prosecution to lead further evidence on the points at issue and should consider the whole of the evidence, and then make his findings.
The result is: the appeal is allowed, the orders of conviction and sentence are set aside, and the case is sent back to the trial Magistrate to be dealt with according to law, in the light of this judgment.
In this case, the appellant version that he was an Indian citizen until March 1954 and obtained a passport at that time would receive considerable support. Documented proof of this type, coming from official custody, would indisputably go a long way in support of the appellant when the Court considers the other evidence already presented by him.
Thereafter part of the record has been received and the matter has been further argued before us. This record does not have the Indian passport issued to the appellant on which he has trusted. But it prima facie seems to support his case. The documents which have been sent to this Court indicate that the appellant had applied for a passport in March 1954, and after the said application was received by the District Magistrate, Panchmahal, the standard enquiry was done.
The court thus accordingly set aside the order of conviction and sentence passed by the High Court against the appellant and remand the case to the First Class Judicial Magistrate, at Godhra, with the direction that he should give opportunity to the appellant and the prosecution to lead further evidence on the points at issue and should contemplate the whole of the proof, and then make his findings
Prepared by Anushka Choudhary