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State of Andhra Pradesh Vs Abdul Khader

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Citations: State of Andhra Pradesh Vs Abdul Khader, AIR 1961 SC 1467; 1962 SCR (1) 737

Date of Judgment: 04/04/1961

Equivalent citations: 1962 SCR (1) 737

Case No.: Criminal Appeal No. 192 of 1959

Case Type: Criminal Appeal

Petitioner/Appellant: State of Andhra Pradesh

Defendant/Respondent: Abdul Khader

Bench: Hon’ble Justice P Bhuvneshwar Sinha, Hon’ble Justice S.K Das, Hon’ble Justice A.K. Sarkar, Hon’ble Justice K.C. Das Gupta, Hon’ble Justice N. Rajagopala Ayyangar

Court: Supreme Court of India

Statutes Referred:

  • Constitution of India 1949; Article 5(a), 7
  • Citizenship Act, 1955; Section 9(2)
  • Foreigners Act, 1946; Section 2(a), 3(1)(c), 3(2)(c), 8, 9, 14

Facts:

  • The respondent Abdul Khadeer was born in India and resided till 1954. He had a shop at Adoni and his family resided there too. In late 1954 he went to Pakistan and returned on January 20, 1955, with a Pakistani passport with an Indian visa permitting him to stay in India upto April of the year 1955.
  • Abdul applied for the extension of time permitted by the visa to the Central Government. However, a government notice dated September 3, 1957, made under Section 3(2)(c) of the Foreigners Act 1946 directed him to leave India.
  • On his failure to comply with the order of the Central Government, Abdul was prosecuted under Section 14 of the Foreigners Act. He was tried before the magistrate and convicted, holding that he is a foreigner and now a Pakistani national. Aggrieved with the conviction, the respondent appealed before the Court of Session Judge which further dismissed the plea.
  • Then the appeal was brought before the High Court of Andhra Pradesh and the court set aside the conviction holding that both Magistrate and Session Judge was incompetent to decide on the nationality of the respondent. Hence, the present appeal by the State of Andhra Pradesh stands before the Supreme Court.

Issues Involved:

  • Whether the conviction of Abdul Khader made under Section 14 of the Foreigners Act holding him as a foreigner appropriate?
  • Whether the Magistrate and the Session Judge competent to decide upon the question of the nationality of the respondent?

Contention of Petitioner/Appellant:

The counsel for Petitioner contented that:

  • The Andhra Pradesh High Court is wrong in setting aside the conviction order passed against the Respondent by the lower courts. The Respondent has renounced Indian Nationality by accepting Pakistan’s Passport and is now a Pakistani national.
  • Also, the refusal of the extension of his visa by the Central Government clearly implies that the Respondent is a foreigner who has acquired citizenship of Pakistan being finally declared so under Section 8 of the Foreigners Act.

Contention of Defendant/Respondent:

The counsel for the respondent to counter the Petitioner’s arguments gave the following contentions:

  • The respondent was not a foreigner. He was born in the Adoni district of Hyderabad, and his family has always been in India. He also owns a shop in Adoni, of which he has been paying rent for about ten years upto 1958.
  • The respondent was on a short visit to Pakistan and had not acquired its citizenship. He is still an Indian National. Mere obtaining of passport and a short visit to the foreign country does not amount to the deprivation of his nationality of India.

Judgement:

The Appeal was Dismissed.

The Hon’ble Supreme Court upheld the decision of the Andhra Pradesh High Court setting aside the order of conviction of the Respondent under Section 14 of the Foreigner’s Act, 1946. The Court held that the respondent’s visit to Pakistan did not amount to migration and acquiring citizenship of that nation.

The respondent further discharged his onus to establish his nationality as an Indian, as laid under Section 9 of the Foreigners Act, 1946.

In the wake of such finding, the appeal brought by the State of Andhra Pradesh before this Court stands dismissed.

Ratio Decidendi:

  • The Honorable Supreme Court dealing with this matter observed that both the Magistrate and the Session Judge of Kurnool were incompetent to decide upon the question of the Respondent’s Nationality given under Section 9(2) of Citizenship Act 1955. The power to determine is with the Central Government as provided under rule 30 of the Act. However, there was not any inquiry conducted by the Central Government.
  • Mere refusal of the Central Government to extend the visa duration does not imply that the government was of the view that the Respondent had renounced his nationality, acquiring citizenship of Pakistan.
  • The passport, an extract from the birth register, and the rent payable to the shop situated at Adoni district establish that the Respondent has been born in Adoni and been residing there until he visited Pakistan. All this evidence proves his nationality under Article 5(a) of the Constitution. Moreover, the Respondent has also discharged his onus under Section 9 of the Foreigners Act of 1946.
  • Furthermore, the court also observed that Section 8 of the Foreigners Act of 1946 is applied when a foreigner is recognized as national by more than one foreign nation. Hence, this section cannot be applied to this case since the main crux of this case was the determination of the Respondent either as an Indian or a foreigner.
  • Thus, the short visit to Pakistan cannot be misconstrued with the renouncement of nationality by the Respondent.

Conclusion:

The instant matter involves the question of the Nationality of an Indian Citizen who returns back with a Pakistan Passport and an Indian Visa after his short visit from Pakistan. The Respondent was convicted for overstaying in India under Section 14 of the Foreigners Act 1946.

However, the Andhra Pradesh High Court set aside the conviction order declaring it unjustified. When the question stood before the Hon’ble Supreme Court, the court upheld the decision given by the High Court, observing that the Respondent has neither migrated to any foreign nation nor the Central Government has passed any order against him regarding termination.

Thus, a mere visit to Pakistan cannot be confused with the renouncement of Indian Nationality or acquiring citizenship of any other foreign nation. In this regard, the conviction for breach of government order would be illegal and therefore set aside.

Drafted By: Shivani Tiwary, School of Law DAVV

Edited by: Aashima Kakkar, Associate Editor, Law Insider

Published On: October 26, 2021 at 13:33 IST