Abdul Sattar Haji Ibrahim Patel vs State Of Gujarat
Rewritten Version Notice: This is a rewritten version of the original judgment.
Court: Supreme Court of India
Case Number: Appeal (crl.) 153 of 1961
Decision Date: 17 February 1964
Coram: P.B. Gajendragadkar, A.K. Sarkar, K.N. Wanchoo, K.C.D. Gupta, N.R. Ayyangar
In this appeal, Abdul Sattar Haji Ibrahim Patel challenged the decision of the Gujarat High Court that had convicted him under section 14 of the Foreigners Act, 1946, and sentenced him to one year of rigorous imprisonment together with a fine of one thousand rupees, with the provision that default of the fine would result in an additional year of rigorous imprisonment. The matter was heard by a five‑judge Bench of the Supreme Court consisting of Chief Justice P B Gajendragadkar, and Justices A K Sarkar, K N Wanchoo, K C D Gupta and N R Ayyangar. The judgment was delivered on 17 February 1964 and is reported in the 1965 volume of the All India Reporter at page 810.
The appellant had been tried before the Judicial Magistrate (First Class) at Godhra on the allegation that he had committed an offence punishable under section 14 of the Foreigners Act. According to the prosecution, the appellant was a foreign national of Pakistan who possessed Pakistani passport number 351544 issued on 11 August 1955 and a ‘C’ Visa numbered 22144, dated 5 October 1957. The prosecution further asserted that, using that passport and visa, the appellant entered India on 13 October 1957 and subsequently obtained a residential permit numbered 322/57 that was initially valid until 12 December 1957. The same permit, the prosecution said, was extended periodically until 12 April 1958, after which the appellant remained in India despite the expiration of the permit. Consequently, the prosecution argued that the appellant had contravened clause 7 of the Foreigners Order, 1948, thereby incurring liability under section 14 of the Foreigners Act.
In response to the charge, the appellant contended that he had never travelled to Pakistan before August 1954 and that his parents were born in Godhra, where all his brothers also resided continuously. He maintained that he was an Indian citizen, denying any foreign status. The appellant explained that his marriage took place in Godhra and that he had received his education there. He further narrated that in March 1948 his father‑in‑law, Yusuf Haji Ismail, travelled to Pakistan together with his wife. In 1954, the appellant alleged that he needed to go to Pakistan to bring his own wife back to India; for that purpose he applied for and obtained an Indian passport numbered C. 041323, dated 8 April 1954. After travelling to Karachi on this Indian passport, the appellant claimed that his passport was deliberately seized or destroyed by his father‑in‑law in an attempt to compel him to remain in Karachi, leaving him with no choice but to obtain a Pakistani passport in order to return to India. The central issue raised by the appellant in his defence, therefore, was whether he retained Indian citizenship at all relevant times.
The Court observed that the appellant’s passport had been taken away or destroyed by his father‑in‑law in order to force him to remain in Karachi. Consequently, the appellant claimed that he was compelled to obtain a Pakistani passport so that he could return to India. He reported that he had been advised that without a Pakistani passport he would be unable to travel back to India. The appellant therefore argued that the central issue in his defence, as framed by the learned Magistrate, was whether he had been an Indian citizen at all relevant times. The prosecution, on the other hand, sought to establish its case principally by relying on the passport that the appellant had obtained after making statements in his passport application. According to the prosecution, the appellant had expressly admitted that he was a Pakistani citizen and that he had secured a Pakistani passport, and the prosecution asserted that this admission had been made well before the year 1954. In response, the appellant produced evidence showing that he remained in India until 1954. He explained that his decision to acquire a Pakistani passport was made because, while he was in Karachi, he found himself helpless and believed that obtaining such a passport was the only possible way for him to return to India.
The learned Magistrate who tried the case concluded that the prosecution had not proven the charge against the appellant beyond reasonable doubt. After assessing the evidence presented, the Magistrate held that the charge under Section 14 could not be said to be established, and therefore the appellant was acquitted under Section 251‑A (11) of the Criminal Procedure Code. The State of Gujarat, as respondent, subsequently filed an appeal against the acquittal. The appellant contended before the High Court that the High Court should not interfere with the trial magistrate’s order of acquittal. Nonetheless, the High Court considered the legal question to be of importance, examined the parties’ evidence, and held that the charge had been proved. Accordingly, the High Court set aside the acquittal and convicted the appellant under Section 14. The appellant then obtained a certificate from the High Court permitting him to approach this Court, and the present appeal was filed on the basis of that certificate. The Court noted that the legal position concerning the citizenship status of a person such as the appellant is clear. Article 5 of the Constitution states that any person who had his domicile in the territory of India at the commencement of the Constitution and who satisfies any one of the three conditions enumerated in clauses (a), (b) and (c) shall be a citizen of India.
In this case, the Court observed that the three conditions listed in Article 5 of the Constitution are alternatives rather than cumulative requirements, so satisfaction of any one of them is sufficient to deem a person a citizen of India provided the individual also had his domicile in the territory of India on 26 January 1950. The Court emphasized that the foundational condition is the existence of domicile in India at the moment the Constitution came into force; once that condition is established, the person must demonstrate either his birth in India, the birth of either parent in India, or that he had been ordinarily resident in India for a period of not less than five years immediately preceding that commencement date.
The Court then turned to Article 7, which it explained disqualifies a person from Indian citizenship if, after 1 March 1947, he migrated from India to the territory now forming Pakistan, regardless of whether he satisfies any of the three conditions of Article 5. A proviso to Article 7 exists, but the Court noted that the proviso was irrelevant to the present appeal. The Court reiterated the settled position that the migration referred to in Article 7 must have occurred between 1 March 1947 and 26 January 1950, as affirmed in the decision of State of Madhya Pradesh v. Peer Mahomed (1963 AIR SC 645). The Court further explained that any migration occurring after 26 January 1950 falls under Article 9, which provides that a person cannot be a citizen of India by virtue of Article 5, Article 6, or Article 8 if he has voluntarily acquired the citizenship of a foreign State. The Court stressed that the concept of migration requires the intention to reside permanently in Pakistan; a casual departure from India for a specific purpose, without the intention of permanent settlement, does not constitute migration, as held in Smt. Shanno Devi v. Mangal Sain (1961 AIR SC 58). Finally, the Court indicated that matters governed by Article 9 require reference to the Citizenship Act 1955 and the rules made thereunder, and it cited Izhar Ahmad Khan v. Union of India (1962 AIR SC 1052) where it was held that Rule 3 of Schedule III, framed under Section 9(2) of the Act, is valid, granting exclusive jurisdiction to the Government of India to decide whether a person has acquired foreign citizenship.
The authority to decide whether a person has acquired the citizenship of a foreign country rested solely with the Government of India. In exercising that authority, the Government could act according to the rules that apply and could reach its decision based on Rule 3 of Schedule III. The Court also noted that, where the Government of India had not yet determined the question of foreign citizenship for a person in accordance with the prescribed rules, no State could prosecute that person on the ground that he had lost Indian citizenship and become a citizen of another country. Such a governmental decision was a condition precedent, as explained in Government of Andhra Pradesh v. Mohd. Khan, 1962 AIR (SC) 1778.
The appellant was charged under Section 14 of the Foreigners Act, 1946 (XXXI of 1946). To decide whether the appellant qualified as a “foreigner” within the meaning of that Act, the Court had to keep Section 9 of the same Act in mind. Section 9 applied to all proceedings under the Act that did not fall within Section 8, and the present case did not fall under Section 8, making Section 9 relevant. Under Section 9, the legislature placed the burden of proof on the person accused of an offence punishable under Section 14. The provision specifically stated that whenever a question arose concerning whether a person was a foreigner, the onus of proving that the person was not a foreigner lay on that person, notwithstanding any rule of the Indian Evidence Act. Consequently, in the present proceedings, the appellant himself had to prove that he was an Indian citizen within the meaning of Article 5 of the Constitution. This required him to demonstrate that he was domiciled in the territory of India on 26 January 1950 and that he satisfied one of the three conditions set out in clauses (a), (b) or (c) of that article. The trial, therefore, had to proceed on the basis that the appellant bore the burden of establishing his citizenship status.
Turning to the material facts, the principal issue for determination was whether the appellant met the requirements of Article 5. The appellant asserted that his domicile was in India on 26 January 1950 and that he satisfied the tests prescribed by clauses (a) and (b) of Article 5. There was no dispute that the appellant was born at Godhra and that his parents were also born at Godhra. In fact, it is common ground that the family of the appellant
In this case the Court observed that the appellant’s family continued to be domiciled in India and that his brothers and parents still enjoyed the status of Indian citizens. The prosecution, however, alleged that the appellant had departed India in 1948, which would render Article 5 inapplicable to him and require his case to be determined under Article 7. The Court explained that if the appellant were shown to have lost his domicile in India on 26 January 1950, Article 5 would indeed not apply and the matter would have to be decided under Article 7. Conversely, if the appellant could demonstrate that he remained in India until 1954, the case would fall within Article 5. The Court further noted that for the prosecution to treat the appellant as a foreigner, it would be necessary for the prosecution to initiate proceedings under the relevant provisions of the Citizenship Act read with Article 9. Since no such action had been taken, the Court found it unnecessary to consider any facts that might support that approach.
The narrow issue before the Court was whether the appellant could establish that he was domiciled in India and residing there on 26 January 1950. To address this question, the appellant presented oral testimony and documentary evidence that had been examined by both the Trial Judge and the High Court. The Trial Judge was at least partially impressed by the evidence, but the High Court rejected it, making a definitive finding that the appellant had failed to prove that an Indian passport had been issued to him in 1954 or at any other time. The High Court also made observations concerning the scope and effect of Articles 5, 7 and 9, observations which the Court considered not to represent the correct legal position. Nonetheless, the Court declined to comment on those observations because it was satisfied that the appellant should be given an opportunity to prove that he remained in India until 1954 and left on an Indian passport issued that year. Accordingly, the Court refrained from expressing any opinion on the evidence adduced by either party at this stage and directed that the matter be referred back to the learned Magistrate for fresh consideration in light of additional evidence that the appellant would be permitted to produce.
During the trial the appellant sought to establish that he had obtained an Indian passport in 1954 by examining certain witnesses. On 21 January 1960 he filed a list of witnesses, which included as witness No. 6 the clerk of the Departmental Foreign Office serving as Assistant Secretary of the Political and Services Department. The appellant requested that this witness produce either the original or a copy of Indian Passport No. C. O. 41323 dated 8 April 1954, together with all applications made by the appellant in respect of that passport. The summons to the sixth witness was dispatched through the Chief Secretary to the Government of Bombay. However, due to circumstances beyond the appellant’s control, the witness did not appear, the passport was not produced, and, as previously noted, the High Court did not accept the remaining evidence presented by the appellant.
According to the record, the appellant had applied for an Indian passport numbered C. O. 41323, which was dated 8 April 1954, and he had also made various applications relating to that passport. In the list of witnesses that the appellant filed, witness number six was identified as the clerk of the District Foreign Office, who was the assistant Secretary of the Political and Services Department. A summons for that witness was issued through the Chief Secretary to the Government of Bombay. The witness, however, did not appear in court, and consequently the passport itself was not produced. The Court noted that this failure to appear was not attributable to any negligence or default on the part of the appellant. In addition, the Court reiterated that the other evidence presented by the appellant had previously been rejected by the High Court.
When the appeal was argued before the Court, counsel for the appellant explained that an earlier order of this Court had directed that the record concerning the appellant’s Indian passport be sent to the Court, and he requested an opportunity to demonstrate that the record fully proved his case. Accordingly, although the appeal was fully argued on 17 December 1963, the Court ordered that the matter be treated as partially heard and allowed counsel to revisit the issue after the record’s receipt. A portion of the record was subsequently received and the case was again argued. The material that arrived did not include the actual Indian passport on which the appellant relied, but it appeared, at first glance, to favor his position. The documents indicated that the appellant had applied for a passport in March 1954, and that following the application’s receipt by the District Magistrate of Panchmahal, a standard enquiry was conducted. The specific questions posed in that enquiry and the corresponding endorsements are reproduced in the document. The endorsements reveal that on 13 March 1954, the sub‑inspector of police at Godhra, after his own investigation, concluded that the appellant intended to travel to his aunt and to his father‑in‑law, who were residing in Pakistan after the Godhra riots. The sub‑inspector further recorded that the appellant was a citizen of India as of that date and found no objection or reason to deny him an Indian passport. If these documentary statements are proved, the Court would have no difficulty linking the appellant’s identity with the person described in the record. Consequently, the appellant’s claim that he remained an Indian citizen up to March 1954 and obtained a passport around that time would receive substantial corroboration. Such official documentary evidence would considerably strengthen the appellant’s case when considered alongside the other evidence he has already produced, and the Court therefore expressed an inclination toward that conclusion.
In this case, the Court held that the appellant must be allowed to present the documentary evidence referred to, and that the matter should be reheard taking into account that evidence together with any additional material that either side may produce subsequently, as well as the evidence already on record. The Court observed that the appellant had persistently claimed Indian citizenship over many years and that he had, in fact, applied for an Indian passport in March 1954. Accordingly, the Court found no justification for denying him a chance to establish his claim, especially because the official witness’s failure to appear before the Court in time could not be attributed to any fault on the part of the appellant. Consequently, the Court set aside the conviction and sentence imposed by the High Court and ordered that the case be remitted to the Judicial Magistrate First Class at Godhra. The remand direction required the magistrate to give both the appellant and the prosecution the opportunity to adduce further evidence on the disputed issues, to consider the entirety of the evidence, and then to record findings based on that comprehensive review. The final disposition was that the appeal was allowed, the orders of conviction and sentence were vacated, and the matter was sent back to the trial magistrate for disposal in accordance with law, guided by the present judgment.