Sameer Vs. State of Rajasthan

Sameer vs State of Rajasthan

Type Court Judgment Court Rajasthan Decided Jul 11, 1988

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Citation: sooperkanoon.com/757715
Court: Rajasthan High Court
Judge: Navin Chandra Sharma, J.
Decided On: Jul 11, 1988
Subject: Criminal

Case Summary

AI-generated summary - not the official court judgment text.

Citizenship Act, 1955 - Section 9(2)--Application of--No evidence or revenue record produced to establish that he was agriculturist or that his land was acquired by Government or that he was born in India--Onus on petitioner not discharged that he was not foreigner--Held, Section 9(2) has no application; and (ii) se...

Key legal issue: Criminal

Parties & Advocates

Appellant / Petitioner

Sameer

Respondent

State of Rajasthan

Legal References

Cases Referred: State of Gujarat v. Yakub Ibrahim
Reported In: 1989CriLJ1163; 1988(2)WLN303

Excerpt

.....section 9(2) has no application; and (ii) sentence of 15 days simple imprisonment is not excessive.;the version of the petitioner is that he had some agricultural land in village navatala. no revenue record has been produced to establish this fact. it is also his case that his agricultural land was acquired by the central government for purpose of field firing range. no documentary evidence regarding such an acquisition has been produced by him. it is also not established that he was born in india. in such circumstances, the petitioner has utterly failed to discharge the onus which rested upon him to prove that he was not foreigner. the petitioner having failed to establish that he was citizen of india, no question arises of the applicability of section 9(2) of the citizenship act, 1955.;the petitioner has been sentenced only to 15 day's simple imprisonment. the sentence is not at all excessive and no reduction is called for.;revision dismissed - section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986, section 2(h): [altamas kabir & cyriac joseph, jj] determination as to juvenile - appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - appellant was arrested on 30.11.1998 when the 1986 act was in force and under clause (h) of section 2 a juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years - it is with the enactment of the juvenile justice act, 2000, that in section 2(k) a juvenile or child was defined to mean a child who had not completed eighteen years of a ge which was given prospective prospect - appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the juvenile justice act, 2000, came into force - juvenile act, of 2000 has been given..........the commencement of the citizenship act, 1955, the citizenship of another country. this basic condition was satisfied in the case before their lordships of the supreme court in state of gujarat v. yakub ibrahim 1974 cri lj 597 (supra). the reported facts of that decision would go to show that the accused had produced credible evidence to prove that he was born at dhandhuka in the state of gujarat on 14th may, 1936; that he was living in that village and attended 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. these findings of fact were arrived at by the courts. clearly therefore, the basic conditions that the person concerned should be citizen of india as envisaged by section 8 of the citizenship act 1955 were satisfied.4. it is clear from the provisions contained in section 9 of the foreigners act, 1946 that the onus of proving that the person concerned is not a foreigner lies upon the person asserting it. the onus, therefore, lay upon the petitioner in the instant case to establish by credible evidence that he was born in the territory forming part of india before the constitution of india came into force and that he had migrated or had gone to pakistan after the commencement of the constitution of india, in the instant case no such credible evidence has been produced. the version of the petitioner is that he had some agricultural land in village navatala. no revenue record has been produced to establish this fact. it is also his case that his agricultural land was acquired by the central government for purpose of field firing range. no documentary evidence regarding such an acquisition has been produced by him. it is also not established that he was born in india. in such circumstances, the petitioner has utterly failed to discharge the onus which rested upon him to prove that he was no foreigner. the petitioner having failed to.....

Full Judgment

ORDER

Navin Chandra Sharma, J.

1. On the basis of the provisions contained in Section 9(2) of the Citizenship Act, 1955 and the decision of their Lordships of the Supreme Court in State of Gujarat v. Yakub Ibrahim : 1974 CriLJ597 the learned Counsel for the petitioner contends that a question had arisen as to whether, when or how the petitioner had acquired the citizenship of Pakistan and this question could only be determined by competent authority prescribed under the said provision.

2. Article 5 of the Constitution provides that at the commencement of the Constitution every person who has his domicile in the territory of India and (a) who was born in the territory of India; or (b) either of whose parents was born in the territory of India; or (c) who has been ordinarily resident in the territory of India for not less than five years immediately preceding such commencement, be a citizen of India. Article 6 of the Constitution is an exception to Article 5 and it makes those persons also citizen of India who had migrated to the territory of India from the territory included in Pakistan if the conditions mentioned in two sub-clauses thereof are satisfied. Article 7 is another exception both to Articles 5 and 6 and it makes a person who had after the 1st day of March, 1947 migrated from the territory of India to the territory included in Pakistan not to be a citizen of India unless he obtains a permit of resettlement under proviso to Article 7.

3. For the applicability of Section 9 of the Citizenship Act, 1955 the foremost and basic condition is that the person concerned should be citizen of India and the question should arise whether by naturalisation, registration or otherwise, he had voluntarily acquired at any time between 26th January, 1950 and the commencement of the Citizenship Act, 1955, the citizenship of another country. This basic condition was satisfied in the case before their Lordships of the Supreme Court in State of Gujarat v. Yakub Ibrahim 1974 Cri LJ 597 (supra). The reported facts of that decision would go to show that the accused had produced credible evidence to prove that he was born at Dhandhuka in the state of Gujarat on 14th May, 1936; that he was living in that village and attended 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. These findings of fact were arrived at by the Courts. Clearly therefore, the basic conditions that the person concerned should be citizen of India as envisaged by Section 8 of the Citizenship Act 1955 were satisfied.

4. It is clear from the provisions contained in Section 9 of the Foreigners Act, 1946 that the onus of proving that the person concerned is not a foreigner lies upon the person asserting it. The onus, therefore, lay upon the petitioner in the instant case to establish by credible evidence that he was born in the territory forming part of India before the Constitution of India came into force and that he had migrated or had gone to Pakistan after the commencement of the Constitution of India, In the instant case no such credible evidence has been produced. The version of the petitioner is that he had some agricultural land in village Navatala. No Revenue record has been produced to establish this fact. It is also his case that his agricultural land was acquired by the Central Government for purpose of Field Firing Range. No documentary evidence regarding such an acquisition has been produced by him. It is also not established that he was born in India. In such circumstances, the petitioner has utterly failed to discharge the onus which rested upon him to prove that he was no foreigner. The petitioner having failed to establish that he was citizen of India, no question arises of the applicability of Section 9(2) of the Citizenship Act, 1955.

5. No other point was pressed. However, the learned Counsel for the petitioner has urged that the petitioner has already remained in Jail for a total period of 7 days from 8-10-72 to 12-10-72 and from 4-8-80 to 6-8-80. The learned Counsel for the petitioner urges that the sentence awarded to the petitioner may be reduced to that already undergone. The petitioner has been sentenced only to 15 days simple imprisonment. The sentence is not at all excessive and no reduction is called for. The revision petition is dismissed.

Same Court & Year Rajasthan · 1988 Same Parties Sameer vs State of Rajasthan Same Subject Criminal Same Judge Navin Chandra Sharma, J.

Criminal