Citations: (1963) 1 SCR 429; AIR 1963 SC
Case Type: Criminal Appeal
Case No.: 12 of 1961
Decided on: Sept. 28, 1962
Appellant: State of Madhya Pradesh
Respondent: Peer Mohd. & Another
Bench: Sinha, Bhuvneshwar P.(Cj), Gajendragadkar, P.B., Wanchoo, K.N., Gupta, K.C. Das, Shah, J.C.
Status referred: Code of Criminal Procedure, Constitution Law
- The argument against the respondents was that they had entered India on May 13, 1956, on the strength of a Pakistani identification and a visa gave in support of themselves on May 8, 1956, and arrived at Burhanpur on May, 15, 1956. Even after the time of the visa had terminated, they kept on remaining in India.
- The respondents didn’t agree with the notification and by their unapproved and unlawful over-stay in India, they delivered themselves at risk under s. 14 of the Act and cl. 7 of the Order. The respondents argued that they were not outsiders but rather were residents of India. They were born in India at Burhanpur and had been permanent residents of the said place; thus the current criminal procedures organized against them were mis-considered.
- It was urged that since the respondents had obtained a Pakistani passport, they have acquired the citizenship of a foreign country and that has terminated their citizenship of India under s. 9 of the Citizenship Act, 1955 (LVII of 1955).
- As to the elective instance of the indictment that the respondents had acquired a Pakistani visa thus, had lost their citizenship under s. 9(2) of the Citizenship Act, the High Court held that it was a matter which must be dictated by the Central Government and it is solely after the Central Government chooses the matter against the respondents that the litigant can continue to remove them from India.
- Can the respondents be said to be foreigners at the relevant date under Art. 7, because they left India for Pakistan after January 26, 1950 ?
Contention by Petitioner:
- The prosecution, however, urged that the respondents had left India for Pakistan sometime after January 26, 1950, and under Article 7 of the Constitution they cannot be deemed to be citizens of India. In the alternative, it was urged that since the respondents had obtained a Pakistani passport, they have acquired the citizenship of a foreign country and that has terminated their citizenship of India under section 9 of the Citizenship Act, 1955 (LVII of 1955).
• The indictment case is that the respondents having entered India with a visa have outstayed in India after the termination of the visa and the time frame showed in the license thus, they are at risk to be rebuffed under s. 14 of the Act and cl. 7 of the Order.
Contention by Respondent:
- The respondents pleaded that they were not foreigners but were citizens of India. They were born in India at Burhanpur and had been permanent residents of the said place.
- In construing Article 7, it would be necessary to examine briefly the scheme of the seven Articles that occur in Part II. These Articles deal with the “question of citizenship”.
- Article 5 provides that at the commencement of the constitution, every person who has his domicile in the territory of India and who satisfies one or the other of the three tests prescribed by clauses (a), (b) and (c), shall be a citizen of India.
- Article 6 deals with persons who have migrated to the territory of India from Pakistan and it provides that they shall be deemed to be citizens of India at the commencement of the Constitution if they satisfy the requirements of clauses (a) & (b).
- Article 6 extends the right of citizenship to persons who would not satisfy the test of Article 5, and so, persons who would be entitled to be treated as citizens of India at the commencement of the Constitution are covered by Arts. 5 and 6.
- Article 9 provides that no person shall be a citizen of India by virtue of Arts. 5, 6 or 8, if he has voluntarily acquired the citizenship of any foreign State. Articles 10 and 11 then lay down that the “rights of citizenship prescribed by Arts”.
- Articles 5 and 6 shall be subject to the provisions of any law that may be made by Parliament; that is to say, the said rights will continue unless they are otherwise affected by any law made by Parliament in that behalf.
- Article 11 makes it clear that the provisions of Part II will not derogate from the power of Parliament to make any provision with respect to the acquisition and termination of citizenship and all other matters relating to citizenship.
It appears that before the learned Magistrate, only the latter plea was pressed and the learned Magistrate held that the question as to whether the respondents had lost their citizenship of India under s. 9(2) of the Citizenship Act has to be decided by the Central Government and cannot be agitated in a court of law. Therefore, the learned Magistrate passed an order under s. 249 of the Code of Criminal Procedure, directing that the respondents should be released, and the passport seized from them should be returned to them after the period of appeal, if any.
Against this order, the appellant preferred an appeal in the High Court of Madhya Pradesh, and before the High Court it was urged by the appellant that on a fair and reasonable construction of Art. 7 it should be held that the respondents cannot be deemed to be citizens of India and so, they were liable under section 14 of the Act and clause 7 of the Order.
This appeal was heard by Shrivastava and Naik, JJ. Shrivastava, J., took the view that Article 7 did not apply to the case of the respondents who had left India for Pakistan after January 26, 1950, and so, they could not be held to be foreigners on the ground that they had left India as alleged by the prosecution. Naik, J., however, came to a contrary conclusion.
He took the view that since it was proved that the respondents had left India for Pakistan after January 26, 1950, Art. 7 was attracted and so, they must be deemed to be foreigners. Since there was a difference of opinion between the two learned Judges who heard the appeal, it was referred to Newaskar, J. Newaskar, J., agreed with the conclusion of Shrivastava, J., and so, in the light of the majority opinion, it was held that under Article 7, the respondents could not be held to be foreigners.
It, however, appears that the High Court read the order passed by the trial Magistrate as amounting to an order of acquittal, and so, quashed the said order with liberty to the appellant to institute fresh proceedings against the respondents if and when considered necessary by it. In fact, as we have already mentioned, the order passed by the trial Court was one under s. 249 Cr. P.C.
It is against this decision of the High Court that the appellant has come to this Court with a certificate granted by the High Court. if any person contravenes the provisions of this Act or of any order made thereunder, he shall be punished in the manner prescribed by the section.
If the State contends that the respondents have lost their citizenship of India under s. 9 (2) of the Citizenship Act, it is open to the appellant to move the Central Government to consider and determine the matter, and if the decision of the Central Government goes against the respondents, it may be competent to the appellant to take appropriate action against the respondents.
So far as the appellant’s case against the respondents under Art. 7 is concerned, the High Court was right in holding that the respondents were not foreigners within the meaning of cl. 7 of the Order and cannot, therefore, be prosecuted under s. 14 of the Act. The appeal accordingly fails and is dismissed.
For this situation, Art. 7 starts with a non-obstante proviso by reference to Arts. 5 and 6, and there is a little covering. The non-obstante proviso may not fill any need concerning cases falling under Art. 5(c), however such covering doesn’t imply that there is any irregularity between the two Articles and it can, thusly, have no impact on the development of Art. 7 itself.
In this way, we are fulfilled that Art. 7 alludes to relocation which has occurred between March 1, 1947, and January 26, 1950. That being along these lines, it can’t be held that the respondents fall inside Art. 7 by goodness of the way that they moved from India to Pakistan at some point after January 26, 1950, and ought to, along these lines, be considered not to be residents of India.
In this association, it is important to add that instances of Indian residents obtaining the citizenship of any unfamiliar State are managed by Art. 9, and the significant arrangements of the Citizenship Act, 1955.
It is notable that the Citizenship Act has been passed by the Parliament by excellence of the forces presented and perceived by Arts. 10 and 111 of the Constitution and its significant arrangements manage the procurement of citizenship of India just as end of the said citizenship. Citizenship of India can be ended either by renunciation under s. 8, or by naturalization, enlistment center. Subsequently, respondents were discovered to be the residents of India and appeal is dismissed.
Prepared by Kashish Luthra