Hajee M. Mohamed Kassim and Others Vs. the Sub Inspector of Police, Kottar Police Station, Nagercoil - Court Judgment

Excerpt:
criminal - overstay - section 9 of citizenship act and section 482 of criminal procedure code, 1973 - petition to quash prosecution for overstaying in country - petitioners claimed that foreign passport acquired under compulsion - prosecution bound to prove that petitioners acquired foreign citizenship voluntarily to prosecute anybody for overstating - such finding to be arrived at after conducting enquiry under section 9 - prosecution of petitioners before establishing such facts untenable - prosecution proceedings against petitioner quashed. - - however, the petitioner, in this case as in the other cases, claims that he was born at kottar, nagercoil and he as well as his forefathers are also citizens of india. he had closed down his establishments at malaysia and had returned to.....order1. though the petitioners are different in these petitions, they are disposed of together since a common question of law is involved. these petitions have been filed u/s. 482 code of criminal procedure, with a prayer to call for the records and quash the proceedings pending against each of them in c.c. nos. 447/86, 448/86, 449/86 and 446/86 respectively on the file of the chief judicial magistrate, kanyakuari at nagercoil. 2. the petitioner in each one of these petitions, is being prosecuted by the respondent, who is the sub inspector of police, kottar police station, nagercoil for the alleged commission of an offence punishable u/s. 14 of the foreigners act, 1946 read with para 7 of the foreigners order, 1948. 3. facts, in brief, in each one of these petitions will have to be stated.....

Judgment:
ORDER

1. Though the petitioners are different in these petitions, they are disposed of together since a common question of law is involved. These petitions have been filed u/S. 482 Code of Criminal Procedure, with a prayer to call for the records and quash the proceedings pending against each of them in C.C. Nos. 447/86, 448/86, 449/86 and 446/86 respectively on the file of the Chief Judicial Magistrate, Kanyakuari at Nagercoil.

2. The petitioner in each one of these petitions, is being prosecuted by the respondent, who is the Sub Inspector of Police, Kottar Police Station, Nagercoil for the alleged commission of an offence punishable u/S. 14 of the Foreigners Act, 1946 read with Para 7 of the Foreigners Order, 1948.

3. Facts, in brief, in each one of these petitions will have to be stated :

4. Crl.M.P. No. 12824/1986 :- The petitioner, a citizen of India by birth, had obtained a Malaysian passport and while he arrived in India on 6-2-1988, (1984) he was permitted to stay in the country till 16-10-1984 in terms of the residential permit issued to him. The petitioner is stated to have overstayed in India without obtaining extension and is therefore liable to be punished under the provisions aforestated. However, the petitioner, in this case as in the other cases, claims that he was born at Kottar, Nagercoil and he as well as his forefathers are also citizens of India. He went over to Malaysia for eking out his livelihood and as such, he was not a permanent resident of that country. After Independence, some restrictions were imposed by the Government of Malaysia on foreigners in that country and, in order to carry on business, he was forced by circumstances beyond his control to comply with the requirements imposed by the laws of that country. The petitioner had no intention or thought of relinquishing or surrendering his Indian citizenship and, solely with a view to preserve his economic interests and to facilitate his carrying on of business, he had obtained Malaysian passport as a citizen of that country. He returned to India after closing his business affairs in Malaysia and had settled permanently in this country from 6-2-1983. While so, he received a memo on 1-8-1986 from the District Superintendent of Police, Crime Branch, Nagercoil, directing his attendance before him, with his travel documents for scrutiny, failing which his application for extension of stay would not be considered. The petitioner claims to have refuted the allegations contained in the memo and explained to the authority, that as an Indian citizen by birth, who had not voluntarily surrendered his citizenship merely by obtaining a Malaysian passport, there was no need for any further extension of stay permit as he was entitled to continue to be in this country as an Indian citizen. This prosecution was thereafter initiated against him.

5. Crl.M.P. No. 12826/1986 :- As in the earlier case, the petitioner in this petition was born in India in 1919. He, his parents and forefathers are all Indian citizens. For eking out his livelihood he went over to Singapore. After Independence, due to restrictions imposed by the Government of Singapore on foreigners, he was forced by circumstances beyond his control to obtain a Singapore passport, without any intention of relinquishing or surrendering his Indian citizenship. He returned to India on 5-5-1984 after closing down his establishments at Singapore. The petitioner herein also received a communication from the police directing him to produce his travel documents and, though he had pleaded that he was an Indian citizen, without any enquiry the prosecution had been launched.

6. Crl.M.P. No. 12828/1986 :- The petitioner, an Indian citizen by birth, as also his parents and forefathers, went over to Malaysia for eking out livelihood. He had to obtain a Malaysian passport because of the restrictions imposed by the Government of Malaysia on foreigners, though he had no intention or thought of relinquishing or surrendering his Indian citizenship. All that he wanted was to preserve his business interests in that country. He had closed down his establishments at Malaysia and had returned to India permanently on 27-5-1984. The procedure undergone by the petitioners in the earlier two petitions, before District Superintendent of Police, Nagercoil, was undergone by him as well, before this prosecution was initiated.

7. Crl.M.P. No. 817/1987 :- The petitioner, an Indian citizen by birth, had gone over to Singapore to eke out his livelihood and, by force of circumstances in view of the laws of Singapore, he had obtained a Singapore passport. He had not surrendered or relinquished his Indian citizenship. He had come down to India on 14-6-1984. After summoning the petitioner to produce his travel documents, the District Superintendent of Police, Nagercoil, not acceding to his plea that he was an Indian citizen, had initiated the present prosecution.

8. Mr. M. R. M. Abdul Kareem, learned senior counsel appearing on behalf of the petitioners in the first three petitions, and learned counsel, Mr. Chidambaranathan, appearing for the petition in Crl.M.P. No. 817 of 1987, contended that the petitioner, in each one of these petitions was not a foreigner and the Foreigners Act did not apply to them. They were citizens of India by birth and they had not voluntarily acquired citizenship of either Malaysia or Singapore. The passports obtained by them did not terminate their Indian citizenship since they had not voluntarily acquired foreign citizenship. In such cases, where the question of citizenship is disputed by the prosecution, courts have no jurisdiction to decide the question of citizenship or termination of Indian citizenship, for the only authority who could decide the question is the Central Government under S. 9(2) of the Citizenship Act read with R. 30 of the Citizenship Rules. The petitioners, as citizens of India, were not bound to apply for stay permits in this country. The prosecutions cannot be proceeded with at the premature stage unless and until a decision was taken by the competent authority u/S. 9(2) of the Citizenship Act.

9. I have heard Mr. Hameed Sultan, the learned Government Advocate appearing on behalf of the respondent in each one of these petitions.

10-11. Section 14 of the Foreigners Act imposes penalties on persons who contravene the provisions of the Act or any order made thereunder or any direction given in pursuance of the Act or such Order. Para 7 of the Foreigners Order, 1948, takes in its fold obtaining of permits by foreigners to remain in India. A 'Foreigner' has been defined under the Foreigners Act, to mean a person who is not a citizen of India. S. 9 of the Citizenship Act relates to termination of citizenship. Sub-sec. (2) of S. 9 contemplates determination as to when and how any person had acquired the citizenship of another country, by an authority contemplated therein in such a manner and having regard to such rules and evidence as may be prescribed. Schedule III, u/S. 32 of the Citizenship Rules, under Cl. (3) states that 'the fact that a citizen of India has obtained any different passport from the Government of any other country shall be conclusive proof of his having voluntarily acquired citizenship of that country before that date.' All these Sections of the different Enactments have been the subject-matter of various decisions rendered by the apex Court. In Md. Ayub Khan v. Commr. of Police, Madras, : [1965]2SCR884 , it was stated with reference to S. 9 of the Citizenship Act and R. 30, Schedule III, clause (3) of the Citizenship Rules, that obtaining of a foreign passport cannot be regarded as specific proof of voluntary acquisition of foreign citizenship in all cases. S. 9(2) and R. 30(2) contemplated an enquiry to decide whether the passport had been obtained voluntarily. Enquiry on that issue can be made by the Central Government only, and not by Courts. In Ibrahim v. State of Rajasthan : 1965CriLJ506 it was stated that it was only where there was proof that a person was, to start with, a citizen of India and it was alleged that he had lost his Indian citizenship by reason of his acquiring the nationality of a foreign State, that the question of invoking S. 9(2) of the Citizenship Act would arise. The provisions do not attract the case of foreign nationals who had come over to India on a valid foreign passport and who had been legally deported out of India. In Abdul Sathar v. State of Gujarat : AIR1965SC810 which was relied on by the learned Government Advocate, to invite the Court to hold, that the onus was on the accused to show that he was an Indian citizen does not attract the facts of all these cases, since, in the case decided by the Supreme Court, migration had taken place after January 26, 1950 and it was observed that in deciding the question as to whether the petitioner therein was an Indian citizen within the meaning of Art. 5, the onus of proof was on the accused to show that he was domiciled in India on January 26, 1950 and that he satisfied one of the three conditions prescribed by cls. (a), (b) and (c) of the Article. The petitioner in each one of these cases claims to be an Indian Citizen, as a born Indian who had not relinquished his citizenship voluntarily, and it is the prosecution who alleges that he is a foreigner, and therefore, the onus is cast on the prosecution to establish that the petitioners in these petitions would answer the description of 'foreigner' contemplated under the provisions of the Act.

12. In State of Gujarat v. Yacub Ibrahim : 1974CriLJ597 it was held (at page 648 (of AIR) :-

'It was not proper for the prosecuting authorities to have proceeded with the case against the respondent when, upon the facts set out by the respondent, it became clear that the respondent could not be prosecuted or convicted without determination u/S. 9 of the Citizenship Act, 1955, that he had voluntarily acquired citizenship of Pakistan between January 26, 1950 and the commencement of the Citizenship Act on 30-12-1955. It has been repeatedly held that if such question arises in the course of a trial, it must be left for decision by the appropriate authorities. It may be that the Rules framed by the Central Government u/S. 18 of the Citizenship Act had provided that a passport shall be conclusive proof that its holder had acquired citizenship of the country whose passport he holds. But, in view of S. 9(2) of the Citizenship Act, the question whether a person voluntarily acquired citizenship of any other country during the specified period could only be determined by the Central Government.'

That was a case, where the respondent was prosecuted for 'Overstay' in the country. It was stated, that without the decision of an appropriate authority on the question as to whether the respondent therein was a foreigner when the alleged contravention took place, neither an acquittal nor a conviction could be recorded. As no finding can be given by criminal or civil courts in a case in which an issue triable exclusively by the Central Government has properly arisen, the question of burden of proof dealt with u/S. 9 of the Foreigners Act, 1946, was immaterial. In that case, the accused was acquitted by the trial Court and the High Court. Since the State had adopted an erroneous procedure in pressing for a conviction when it was clear that the charge could not succeed at all without obtaining a decision from the appropriate authority, the apex Court thought, that the correct order to pass was not just to stay further proceedings after quashing the acquittal so as to await the decision of the appropriate authority, but to quash the charge itself so that the accused may be discharged and that would leave the State free to prosecute the respondent if and when a decision was obtained against the accused from the appropriate authority, in accordance with law.

13. In State of U.P. v. Rahmathulla : 1971CriLJ1103 , the accused was prosecuted for overstay in India. An enquiry had been conducted u/S. 9(2) of the Citizenship Act read with R. 30 of the Citizenship Rules, 1956, and by an order dated November 5, 1964, it was determined that the accused had acquired citizenship of Pakistan after January 26, 1950 and before March 15, 1955, the date of his having secured his Pakistani passport. In the enquiry, the accused was given full opportunity of adducing proof in support of his plea. However, the decision of the Central Government was communicated to the accused only on March 29, 1965, during the course of the trial. The accused therein had been arrested on July 11, 1963 and on March 6, 1965 the charge was framed. In the background of those facts, the apex Court observed (at page 1386 of AIR) :

'It appears to us that the wide charge as framed against him was misconceived and he could not be convicted of overstaying in this country at least till he was duly found to be a Pakistani national and to have ceased to be an Indian citizen. The order of the Central Government is clearly final and it has remained unchallenged by the respondent even after he was informed of this order on March 29, 1965. We have seen the proceedings of the Central Government and we find that the respondent was given full opportunity of putting forth his case. The binding nature of that order was not, and indeed 'it could not be, questioned before. The determination by the Central Government in this case could not have the effect of retrospectively rendering a penal offence an act which was not so at the time of its commission. The respondent, even though held to be a Pakistani and, therefore, a foreigner, before the charge was framed against him, is entitled to the protection of our laws.'

14. Therefore, the law laid down makes it clear and categoric that a prosecution could be launched against these petitioners only after a determination as contemplated under S. 9(2) of the Citizenship Act read with R. 30 of the Citizenship Rules, 1956. Even if a decision were to be taken subsequently by the Central Government holding the petitioners to be foreign nationals, as enunciated in State of U.P. v. Rahmathulla, : 1971CriLJ1103 . Such determination would not have the effect of retrospectively rendering a penal offence an act which was not so at the time of its alleged commission. If that be so, none of these prosecutions can be maintained and allowed to survive any further. As observed by the Supreme Court in State of Gujarat v. Yacub Ibrahim, : 1974CriLJ597 , the State would be left free to prosecute the petitioners if and when a decision is obtained against them from the appropriate authority in accordance with law. As further observed therein, the authority will, no doubt, consider all the relevant facts including the total period of the stay of the petitioners in this country, as compared with the period of their stay in other countries from where they had obtained foreign passports. It will, of course, be open to the Central Government, after a decision is rendered by the competent authority and in the event of it being against the petitioners, to take such suitable action against them under the Foreigners Act or under any other provision of law which may be applicable to them for the purpose of either deporting them or otherwise dealing with them as may be thought fit. All these petitions are allowed with the observations aforementioned and the proceedings in C.C. Nos. 447 of 1986, 448 of 1986, 449 of 1986 and 446 of 1986 on the file of the Chief Judicial Magistrate, Kanyakumari at Nagercoil, shall stand quashed.

15. Petitions allowed.