Fateh Mohd, Son Of Nathu vs Delhi Administration

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

Court: Supreme Court of India

Case Number: Criminal Appeal No. 121 of 1961

Decision Date: 27 November, 1962

Coram: K. Subbarao, Syed Jaffer Imam, N. Rajagopala Ayyangar, J.R. Mudholkar

In the matter of Fateh Mohd, Son of Nathu versus Delhi Administration, the Supreme Court heard arguments on 27 November 1962. The judgment was delivered by a bench comprising Justice Subbarao, Justice Syed Jaffer Imam, Justice N. Rajagopala Ayyangar and Justice J.R. Mudholkar. The case is reported in 1963 AIR 1035 and 1962 SCR Supl. (2) 560, with a citator reference to R 1974 SC 28 (2). The statutory provisions discussed included sections 3 and 14 of the Foreigners Act, 1916 (31 of 1946), section 2(a) of the Foreigners Laws (Amendment) Act, 1957 (11 of 1957), and Article 5 of the Constitution of India. The factual background recorded that the appellant entered India on 9 May 1956 using a Pakistani passport and was granted a visa valid for three months, requiring departure on or before 8 August 1956. He remained in the country beyond that date, and on 19 November 1959 the Delhi Administration served him a notice under section 3(2) of the Foreigners Act, as amended in 1957. The appellant failed to comply with the notice, was prosecuted under section 14 of the Foreigners Act, and was convicted. His subsequent appeal and revision were dismissed, and the matter reached the Supreme Court by way of special leave. The appellant contended that he was not a foreigner under the definition applicable at the time of his entry and that the amended definition should not apply to him.

The Court held that the appellant became a foreigner under the amended definition that took effect on 19 January 1957, even though he was not a foreigner when he entered India. The amended definition broadened the concept of foreigner to include any person who was not a citizen of India, superseding the earlier rule that regarded a person born within His Majesty’s Dominion and owing allegiance as an Indian citizen. Consequently, an order issued by the Central Government under section 3 of the Act after the amendment imposed a legal duty on such a foreigner to obey it, and failure to do so constituted an offence under section 14. While the appellant could not be convicted for conduct occurring before the amendment, the offence for which he was punished arose from his non‑compliance with an order served after the amendment had taken effect. The burden of proving that he was not a foreigner rested on the appellant, and he failed to discharge that burden. Accordingly, the Court affirmed that the appellant’s conviction was valid because the offence was committed after the amendment when he was legally deemed a foreigner.

In this case the Court observed that the responsibility to prove that the appellant was not a foreigner rested on the appellant and that he had not met that burden. The Court further stated that the legality of any act performed by a person must be assessed according to the law that was in force at the time the act was carried out. The Court referred to Union of India v. Ghaus Mohammad, [1962] 1 S.C.R. 744, as a guiding authority and noted that the decision in Fida Hussain v. State of Uttar Pradesh, [1962] 1 S.C.R. 776, was distinguished on the facts. The matter before the Court was a criminal appeal numbered 121 of 1961, filed by special leave against a judgment and order dated 26 May 1961 of the Punjab High Court, Circuit Bench at Delhi, which had dismissed a revision petition that challenged the order of the Additional Sessions Judge, Delhi. The appellant had been represented by counsel, while the respondent, the State, was represented by other counsel. The judgment was delivered on 27 November 1962 by Justice Subba Rao.

The factual background disclosed that the appellant had entered India on 9 May 1956 using a Pakistan passport dated 11 February 1956. He possessed a visa on that passport which authorised his stay for a period of three months, requiring him to depart India on or before 8 August 1956. Because he failed to leave within the stipulated time, the Delhi Administration served on him, on 19 November 1959, a notice issued under section 3(2) of the Foreigners Act, 1946, as amended in 1957. The notice directed the appellant to appear personally before the Foreigners Regional Registration Officer at Taj Barracks, Janpath, New Delhi, between eleven a.m. and twelve noon each day, and required him to execute a personal bond of five thousand rupees together with two sureties, each of ten thousand rupees, to ensure compliance with the movement restrictions imposed upon him. The appellant did not obey the directions contained in the notice.

Consequent upon his non‑compliance, the appellant was prosecuted under section 14 of the Act for violating the provisions of section 3. The prosecution was instituted before the Sub‑Divisional Magistrate, Delhi. In his defence, the appellant contended that the notice had never been served upon him and that he was a citizen of India. The learned magistrate, after evaluating the evidence, concluded that the notice had indeed been served and that the appellant was not an Indian citizen but a foreigner within the meaning of the Act. Accordingly, the magistrate held that the appellant had committed an offence by failing to obey the notice, convicted him under section 14 of the Act and sentenced him to six months of rigorous imprisonment.

The appellant appealed this conviction. The Sessions Judge, Delhi, affirmed the findings of the magistrate and dismissed the appeal. The Sessions Judge reiterated that the onus was on the appellant to establish that he was not a foreigner and observed that the appellant had failed to discharge that onus. He also rejected the appellant’s plea that the notice had not been served and that he was an Indian citizen.

In this appeal, the petitioner argued that at the time he entered India he was not a foreigner as defined by the definition then in force, and consequently could not be convicted for an offence that was prosecuted after that definition had been amended. The High Court, however, affirmed both the conviction and the sentence imposed on him, and that affirmation gave rise to the present appeal. Counsel for the appellant presented two submissions before the Court. First, he contended that the appellant was not a foreigner under the definition that existed on May 9, 1956, the date on which he entered India, and therefore the High Court erred in sustaining the conviction. Second, he argued that even under the amended definition the appellant should not be treated as a foreigner. To examine the first submission, it is necessary to refer to the relevant provisions of the Foreigners Act, 1946. Section 3 of that Act provides that the Central Government may, by order, make provision, either generally or with respect to all foreigners or with respect to any particular foreigner or any prescribed class or description of foreigner, for prohibiting, regulating or restricting the entry of foreigners into India or their departure therefrom or their presence or continued presence therein. The section further states that, without prejudice to the generality of this power, orders made under it may prescribe conditions that a foreigner shall comply with, such as residing at a particular place, adhering to movement restrictions, or entering into a bond with or without sureties for the observance of any prescribed restrictions or conditions. The definition of “foreigner” as it stood in 1953 read: “Foreigner” means a person who is not a natural‑born British subject as defined in sub‑sections 1 and 2 of section 1 of the British Nationality and Status of Aliens Act, 1914. Section I(1) of that 1914 Act declares that a natural‑born British subject includes, inter alia, “any person born within His Majesty’s Dominion and allegiance.” The definition was later replaced by the Foreigners Laws (Amendment) Act, 1957 (Act 11 of 1957), which came into force on 19 January 1957. Under the amended provision, a “foreigner” means a person who is not a citizen of India. Section 14 of the Foreigners Act provides that any person who contravenes the provisions of the Act, any order made thereunder, or any direction issued under the Act or the order, shall be punished with imprisonment for a term which may extend to five years and shall also be …

The Court explained that Section 14 of the Act prescribed that any person who violated the Act, any order made under it, or any direction issued pursuant to it, would be liable to imprisonment for up to five years and also to a fine. The provision further stated that if the offender had entered into a bond under clause (f) of Sub‑section (2) of Section 3, that bond would be forfeited, and any person bound by the bond would have to pay the penalty or satisfy the convicting Court why the penalty should not be imposed.

The Court then summarized the operative portion of the legislative scheme. Under the definition of “foreigner” existing in 1953, before the 1957 amendment, any person born within His Majesty’s Dominion and allegiance was deemed a citizen of India. The Foreigners Laws (Amendment) Act 1957, which came into force on 19 January 1957, replaced that definition and stated that a “foreigner” meant any person who was not a citizen of India. Consequently, after that date, when the Central Government issued an order under Section 3 of the Act directing a foreigner to observe certain conditions for his stay, the foreigner was legally obliged to comply, and non‑compliance constituted an offence punishable under Section 14.

Applying these provisions to the facts, the Court noted that the appellant entered India in 1956 using a Pakistani passport, with a visa that permitted him to remain until 8 August 1956. On 19 November 1959, the Delhi Administration served him with an order imposing specific restrictions on his stay and requiring compliance with certain conditions. The appellant failed to obey those restrictions, thereby committing an offence within the meaning of Section 14. The appellant contended that because he was not a foreigner at the time of his entry, he could not be convicted on the basis of the later definition of foreigner. The Court rejected this argument, observing that while the appellant was indeed not a foreigner when he entered India under the pre‑amendment definition, the amendment of 19 January 1957 subsequently rendered him a foreigner. The Court emphasized that the offence for which he was charged arose from his non‑compliance with an order issued after the amendment, when he was already classified as a foreigner. Therefore, the appellant could be lawfully convicted for the violation of that post‑amendment order.

In light of the amended definition, the appellant was a foreigner at the time he committed the act that formed the basis of the charge. Accordingly, under the law as it stood after the amendment, he committed an offence, and his argument that he was not a foreigner according to the earlier definition cannot succeed. The Court must assess the legality of his conduct according to the law in force at the time the act was performed, because the act occurred after the amendment became effective. The appellant relied on the Court’s earlier decision in Fida Hussain v. State of Uttar Pradesh (1) to argue that, having not been a foreigner when he entered India, he could not be convicted on the ground that he was a foreigner. However, the factual circumstances of that case differ markedly from those in the present appeal, and the earlier decision is clearly distinguishable. In the Fida Hussain case, the individual was born in Allahabad when the territory was part of His Majesty’s Dominion. He had left India for Pakistan but returned on a passport issued by the Government of Pakistan on 16 May 1953. The Indian authorities had endorsed his passport with a visa permitting a three‑month stay, which was later extended to November 1953. Paragraph 7 of the Foreigners Order 1948, made under section 3 of the Foreigners Act, required every foreigner entering India on a visa to obtain a permit indicating the period of authorized residence and to depart before that period expired unless an extension was obtained. The appellant remained in India after 15 November 1953 without such a permit and was therefore prosecuted for breaching that order. Those facts show that the offence for which he was prosecuted occurred before the Amending Act of 1957 came into force on 19 January 1957. The Court, applying those facts, held that the appellant could not be convicted for violating Paragraph 7 because he was not a foreigner at the relevant time and therefore could not have breached the order. That determination, however, does not apply to an offence committed by a person who falls within the amended definition of foreigner after the Amending Act took effect. The Court expressly left open the question of the impact of the amended definition, stating at page 1523 that no issue concerning the effect of the amended definition on the appellant’s status was decided because the focus was solely on his status in 1953, and noting that no order had been made under section 3(2)(c) in that case. The unresolved issue raised in the earlier decision must be considered in the present appeal, where the appellant, now a foreigner under the amended definition, has committed an act that occurred after the amendment became operative.

In the present case the appellant was served with an order after the amendment that re‑defined the term “foreigner.” By refusing to obey the directions contained in that order, which were issued by the Delhi Administration, the appellant committed an act that fell within the scope of section 14 of the Foreigners Act. The respondent therefore contended that the appellant had committed an offence as defined by the statute. The appellant, however, asserted that he was an Indian citizen and consequently could not be classified as a foreigner under the amended definition. To examine this contention, the Court referred to the relevant constitutional provision and to the Citizenship Act of 1955. Article 5 of the Constitution provides that, at the commencement of the Constitution, a person who had his domicile in the territory of India and who either was born in India, had a parent born in India, or had resided ordinarily in India for at least five years immediately before the commencement, would be deemed a citizen of India. Section 9 of the Citizenship Act states that whenever a question arises as to whether a person is a foreigner, the burden of proving that the person is not a foreigner rests on that person, notwithstanding any rule of evidence to the contrary. Consequently, the appellant bore the onus of demonstrating that he satisfied the criteria laid down in Article 5(a) and that he therefore was a citizen of India and not a foreigner within the meaning of the amended definition.

The Court observed that, because the onus lay on the appellant, he was required to produce sufficient proof of his citizenship in the manner prescribed by the Constitution and the Act. The Court cited the decision in Union of India v. Ghaus Mohammad, wherein it was held that the burden of proving non‑foreign status could not be shifted to the Union and that doing so would be a legal error. Applying that principle, the magistrate evaluated the appellant’s evidence, both oral and documentary, and concluded that the appellant had failed to establish his citizenship. The learned Additional Sessions Judge, after noting that the statutory burden rested on the appellant, examined the same body of evidence and likewise found that the appellant had not discharged the burden of proof. Accordingly, the judge held that the appellant could not be considered a citizen of India for the purposes of the case and therefore remained liable under section 14 of the Foreigners Act.

In the appeal the Court observed that the appellant had not discharged the legal burden placed upon him. The Court further stated that there was no suggestion, nor any basis, for holding that the finding of the Additional Sessions Judge was impaired by any error of law. Nevertheless, the appellant argued that the Additional Sessions Judge was not justified in ignoring the testimony of respectable witnesses who affirmed that the appellant was born in India and continued to reside in India at the date when the Constitution came into force and thereafter. The Court noted that the learned Additional Sessions Judge, acting as a trier of fact, examined the evidence in the light of probabilities together with the documentary material and concluded that the evidence of those witnesses was not worthy of credence. The High Court, on a revision application, refused to interfere with that finding of fact. The present Court saw no permissible ground for disturbing that finding in a petition filed under Article 136 of the Constitution. No other point was raised before this Court. Consequently, the appeal failed and was dismissed.