STATE OF ASMM v. JILKADAR ALI

Under Art. 7, notwithstanding anything in Art. 5, a person, wh<? ha~ alter the first day of March 1947, migrated from the temtory of India to the territory included in Pakistan shall not be deemed to be a citizen of India. If Art. 7 applied to this case, (I) (1962] I s.c.R. 776. 688 SUPRBMI! COURT REPORTS [1973] 1 S.C.R. the respondent would not bo deemed to be a citizen of India It notwithstanding his complying with the conditions of Art. 5. ii quite clear from H.P. v. Pear Mohammad(1) t.hat it would bie Art. 7 and not the Citizenship Act, 1955 which would apply to a case where a person has migrated to Pakistan between March l, 1947 and January 26, 1950 when the Constitution came into If Art. 7 were to apply it is clear that the court and not force. the Central Government or its delegate which would have juris diction to deal with the question whether th·~ person concerned is a foreigner to be dealt with under the Foreigners Act. . The crucial point in the case, therefore, was whether the res pondent had migrated to Pakistan between March 1, 1947 and January 26, 1950. If he did, then notwithstand.ing his comply ing with the requirements of Art. 5, his case WO!lld fall under Art. 7 and he would be deemed not to be a citizen even on the date of his entry in India on April 4, 1955. What then is the connotation of 1he word 'migrated' within the meaning of Art. 7 in Kulathit Manrmu v. Kerala( 2 ), this Court interpreted Art. 7 and held that the word 'migrated' was capa)Jle of two meanings. In its narrower connotation it meant going from one place to another with the intention of residing permanently in the fatter place; in its wider connotation it simply meant going from one place to -another whether or not with the intention of permanent residcuce in the latter place. In A~t. 7 the word was used in its wider sense though it did not take in movement which was in voluntary or for a specific purpose and for a short and limited period. Considering the facts of the present case, viz., the option exe•cised by the respondent for Pakistan service, his having secured release from Indian service as a constable, his going to Pakistan and obtaining service there as a peon in the sub-registrar's office, his staying there thereafter for a long period, his obtaining Pakistani passport and visas declaring therein that he had acquired Pakistani citizenship and domicile, there can be no doubt that he had gone to Pakistan permanently. His movement to Pakistan thus. was neither involuntary nor for a short. or limited period, but was clearly with the definite intention of having a permanent place of abpde there. His case thus fell within Art. 7 and there fore on his entry in India on April 4, 1955 he was a person who was deemed not to be a citizen of India. In Fida Hussain v. U.P. (1 ), the question of the applicability of Art. 7 did not arise and was not considered presumably because it was not contended that Fida Hussain had migrated to the terri tory which fell within Pakistan between March 1, 1947 and Jl!lluary 26, 1950. The Court, therefore, conside~ed only cl. (1) of s. 2(1) of the Foreigners Act, 1945 and not us cl. (3) as 1t (2) [1966] 3 S.C.R. 706. A B c D E F G H ASSAM v. JILKADAR ALI (She/at, !.) 689 A B c D stood before its amendment in 1957. It appears >that the only date available there was the date of his entry in 1953, when the It could not, therefore, be said unamended definition prevailed. there that he had migrated from India between March 1, 194 7 and January 26, 1950, and that therefore, he would be deemea not to be a. citizen of India under Art. 7. In our view, the High Court could not have relied on Fida Hussain's case (supra) for its conclusion that, the respondent was not a foreigner in April 1955, and that therefore, cl. 7 of the Foreigners' Order could not apply to him. Cl. 7 of the Foreigners' Order 1948 by its 'ub-cl. (1) requires every foreigner who enters India on the authority of a visa to oQ!ain a permit from the relevant authority indicating the period during which he is authorised to remain in India. The visa obtained by the respondent permitted him to stay in India If he wanted to stay beyond that period, till. January 26, 1956. it was incumbent on him as provided by sub-cl. (3) of cl. 7 to obtain from the relevant authority thereunder an extension of the period mentioned in the visa. In the absence of such an exten · sion he was bound to depart from India on January 26, 1956. Admittedly he did not, but on the contrary contihued to remain in India until he was detected in 1964. Dr. Mahmood, however, relied on the Registration of Foreigners (Exemption) Order, 1957. But whether the respon- E • dent was exempted under that order or not is entirely irrelevant for the purposes of cl. 7 of the Foreigners Order, 1948, whose purpose clearly is to see that a foreigner entering India under a visa does not overstay beyond the period for which the visa per mits him to stay in this country. By overstaying. here without t~e required extension the respondent clearly yiolated the provi- s~ons of cl. 7(1) a!1d (3) of the Foreigners' Order, 1948 in view of our conclus10n that he was a person who was deemed not to be a cittz~~ of this country, and therefore, a foreigner even under the. defimt10n of a foreigner in sec. 2 of the Foreigners Act before it was .amended in 1957. F . G H The decision in State v. Ibrahim Nabiji(1) referred to by CO)-lnsel . ":!so .does not assist as it did not have to deal with the pomt ansmg m the present appeal, that is with regard to a person who, notwithstanding Art. 5, is to be deemed not to be a citizen undef Art. 7, and th~refore, a foreigner within the meaning of sec. 2(a) of the Foreigners Act as it stood in 1955. The State ) another decision relied on by Dr. Mahmood, merely v., Akub( laid down that .persons who are sought to be brought within the scope and ambit of cl. 7 of the Foreigners' Order, 1948 are 2 (!) A.I.R. 1959. Born. 526. (2) A.I.R. 1961 All. 428. •90 SUPREME COURT REPORTS [1973] 1 S~C.R. persons who are not citizens of India, and that that dause did not apply to those who were not foreigners at the date of their entry although they may become foreigners alter their entry by reason of the amendment of the definition in 1957. This deci- sion again cannot assist the respondent in view of our ~nclu- sion with regard to Art. 7 ·by reason of which the .respondent even at the date of his entry in 1955 was deemed not to be a citizen of India. A B In our view the respondent· was a foreigner when he entered India in April 1955 as the definition of foreigner then stood, and by overstaying beyond the period permissible under the visa on the strength of which he had entered India he clearly committed breach of cl. 7 of the Foreigners' Order, 1948 and was Hable to C be punished under s. 14 of the Foreigners Act, 1946, He was, therefore, rigntly convicted and sentenced by the Trial Magis- trate. The High Court, in our view, erred in setting aside that order of conviction and sentence. The appeal by the State is, therefore, allowed and the order of the Trial Court is restored. s.c. Appeal allowed. • '·