Abdul Rahim Ismail Rahimtoola vs The State Of Bombay

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Criminal Appeal No. 182 of 1957

Decision Date: 14 May 1959

Coram: Syed Jaffer Imam, J.L. Kapur

In this case the Supreme Court of India delivered its judgment on 14 May 1959 in the matter of Abdul Rahim Ismail Rahimtoola versus the State of Bombay. The judgment was authored by Justice Syed Jaffer Imam and the bench comprised Justice Syed Jaffer Imam together with Justice J. L. Kapur. The citation for the decision is 1959 AIR 1315 and 1960 S.C.R. (1) 285. The case concerned a criminal trial for entry into India without a passport, the interpretation of the Indian Passport Act of 1920 and the Indian Passport Rules of 1950, and the question of whether a constitutional reference to a larger bench was necessary. The headnote records that the appellant, an Indian citizen, entered India without a passport relying on a prior decision of the Supreme Court. He argued that section 3 of the Indian Passport Rules, 1950, was ultra-vires the Constitution and, properly interpreted, should not apply to an Indian citizen; furthermore, he submitted that any case involving a constitutional question should be referred to a bench of five judges, a “Constitution Bench.” The Court held that where a binding decision of a Constitution Bench of this Court already exists on a constitutional question, the same question raised in another matter does not create a substantial new issue of law, and therefore need not be referred to a Constitution Bench. On a reasonable construction of section 3 of the Act and rules 3 and 4 of the Rules, which require that “persons” entering India be in possession of a valid passport, the Court found no doubt that the provisions apply to every person entering India, including Indian citizens. Accordingly, the appellant’s entry without a passport contravened the Rules and his conviction was proper, following the precedent set in Ebrahim Vaziy Mavat v. The State of Bombay, [1954] S.C.R. 933. The judgment fell under criminal appellate jurisdiction, being Criminal Appeal No. 182 of 1957, an appeal from the judgment and order dated 4 July 1957 of the Bombay High Court in Criminal Application for Revision No. 278 of 1956, which itself arose from the judgment and order dated 3 January 1956 of the Presidency Magistrate Court, Esplanade, Bombay, in Criminal Case No. 1913/P of 1955. Counsel for the appellant appeared, as did counsel for the respondent. The Court noted that the appellant had been convicted under rule 6(a) of the Indian Passport Rules, 1950, made under section 3 of the Indian Passport Act (34 of 1920), and was sentenced to pay a fine of Rs 100. The High Court, exercising its revisional jurisdiction, upheld a fine of

The High Court affirmed the conviction but reduced the fine imposed on the appellant to Rs 25. It also issued a certificate declaring that the case was suitable for appeal before the Supreme Court. The record shows beyond any doubt that the appellant is an Indian citizen. He admittedly entered Indian territory without possessing a passport. Consequently, the only issue requiring resolution was whether his entry, undertaken without a passport, constituted an offence punishable under rule 6(a) of the Indian Passport Rules.

The Indian Passport Act, originally enacted in 1920, has since been amended and modified. Its preamble declares that it is expedient to obtain the power to require passports of persons entering India, and therefore it is enacted accordingly. The term “passport” is defined as a passport presently in force, issued or renewed by the authority prescribed, and satisfying the conditions prescribed for the class of passport to which it belongs. Section 3 of the Act provides that the Central Government may make rules requiring persons entering India to be in possession of passports, and to address all matters ancillary or incidental to that purpose. Section 3 further authorises the government, without limiting that general power, to make rules that may (a) prohibit the entry into India or any part thereof of any person who does not have a passport issued to him, (b) poresscribe the authorities by whom passports must be issued or renewed and the conditions that must be complied with for the purposes of the Act, and (c) provide for the exemption, either absolutely or on any condition, of any person or class of persons from any provision of such rules. The section also stipulates that any contravention of those rules or of any order issued under the authority of any such rule may be punishable by imprisonment for a term which may extend to three months, or by a fine, or by both. All rules made under this section are required to be published in the Official Gazette and thereafter have the effect as if enacted in the Act.

Rule 3 of the Passport Rules provides that, except as allowed by rule 4, no person coming from any place outside India shall enter, or attempt to enter, India by water, land, or air unless he is in possession of a valid passport conforming to the conditions prescribed in rule 5. Rule 4 lists the persons who are exempted from the provisions of rule 3. Clause (b) of rule 4 exempts members of the Naval, Military or Air Forces of India who are on duty, as well as members of the families of such persons when they accompany them to India on government transport. Clause (e) exempts persons domiciled in India who are proceeding from any of the French establishments in India (other than Pondicherry in Kairakal) or from any of the Portuguese establishments in India or Pakistan. Clause (f) exempts persons domiciled in India who enter India by land or by air over the Nepalese or Tibetan frontier. Clause (h) provides further exemptions, the specifics of which are detailed in the rule itself.

In this matter the Court observed that the regulations exempt bona-fide Mohammedan pilgrims returning from Jeddah or Basra, and also exempt other persons or classes of persons that may be specified by general or special orders of the Central Government. The precise date on which the appellant entered India was not recorded; however, it was clear that he was arrested on 26 February 1955. The appellant therefore must have entered India sometime after the decision rendered in the earlier case of Ebrahim Vazir Mavat v. The State of Bombay, which was delivered on 15 February 1954, and before his arrest on 26 February 1955. The Court expressed that a detailed reconstruction of the appellant’s movements between 19 November 1948, when he first travelled to Karachi, and his arrest on 26 February 1955 was unnecessary, because those movements were irrelevant to the question of whether he had committed an offence punishable under rule 6(a) of the Rules. Consequently, the case had to be decided on the premise that, at some point prior to his arrest, the appellant entered India without possessing a passport. Two principal submissions were advanced on behalf of the appellant. First, it was contended that rule 3 of the Rules and section 3 of the Act were ultra vires the Constitution insofar as they attempted to affect the right of an Indian citizen to enter India without a passport. Second, it was submitted that, when properly interpreted, the provisions of section 3 of the Act and rule 3 of the Rules applied only to non-Indian citizens and not to Indian citizens. Regarding the first submission, the Court noted that the argument relied upon the contention that the provisions violated article 19(1)(d) and article 19(1)(e), which guarantee every Indian citizen the right to move freely throughout the territory of India and to reside and settle in any part thereof. While acknowledging that these fundamental rights are subject to reasonable restrictions under clause (5) of article 19, the Court referred to its earlier decision in Ebrahim Vazir-Mavat, wherein the majority had held that requiring an Indian citizen who had visited Pakistan to produce a permit or passport before being allowed to enter India constituted a proper restriction on entry, though the imposition of a removal order for entry without a permit would constitute a different and impermissible deprivation of the constitutional right.

The Court noted that requiring a passport from an Indian citizen before entry into the country infringes the fundamental right guaranteed under Article 19(1)(c), namely “to reside and settle in any part of the territory of India”. It recalled that a previous decision of this Court, reported at (1) [1954] S.C.R. 933, had already held that the passport requirement may be treated as a proper restriction on entry and is therefore constitutionally permissible. That earlier judgment is binding on the present bench, and the Court affirmed that it must follow the precedent. Subsequently, counsel argued that because a constitutional question was raised, the matter should be decided by a Constitution Bench of at least five judges, as mandated by Article 145(3) of the Constitution. The Court examined this submission and observed that no substantial question of law concerning the interpretation of the Constitution arose, since the precise issue had already been settled by a five-judge Bench of this Court. Consequently, the requirement of a Constitution Bench was rejected, the matter being fully decided by the existing precedent.

The Court then turned to the second contention, which concerned the scope of Section 3 of the Act and Rules 3 and 4. It observed that the language of the statute uses the terms “persons”, “any person” and “no person” without any limitation, indicating that the provisions apply to every individual, including Indian citizens. Rule 4(b) expressly relates to Indian citizens, but those mentioned therein have been specifically excluded from the operation of Rule 3. Rule 4(h) may also apply to Indian citizens who are of the Mohammedan faith, although they too are exempted. On this basis, the Court held that a reasonable construction of Section 3 and Rules 3 and 4 leaves no doubt that they are operative against all persons, irrespective of nationality. Accordingly, the appellant’s entry into India without a passport violated Rule 3 and attracted liability under Rule 6(a). The conviction was therefore upheld, and the appeal was dismissed.