Ibrahim vs State Of Rajasthan

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

Court: Supreme Court of India

Case Number: Criminal Appeal No. 14 of 1963

Decision Date: 24 March, 1964

Coram: N. Rajagopala Ayyangar, M. Hidayatullah

In this case the Supreme Court of India delivered its judgment on 24 March 1964 in Ibrahim versus State of Rajasthan. The opinion was written by Justice N. Rajagopala Ayyangar and Justice M. Hidayatullah sat with him on the bench. The judgment is reported at 1965 AIR 618 and 1964 SCR (7) 441. The statutes that formed the basis of the dispute were sections 2(a), 3, 9 and 14 of the Foreigners Act, 1946, together with section 9(2) of the Citizenship Act, 1955. The factual background was that the appellant, a Pakistani national, first entered India on a Pakistani passport supported by a visa. He remained in the country beyond the period allowed by the visa and was consequently deported on 21 April 1957. After his deportation he was later discovered again living in India and was charged with the offence of entering India without a passport in violation of section 2(2)(a) of the Foreigners Act, 1946. The appellant’s defence asserted that he had been resident in India since his birth and that the individual who had been deported in 1957 was a different person, not himself. The trial court accepted this defence and acquitted the appellant. The State appealed the acquittal to the Rajasthan High Court, which reversed the trial court’s finding and convicted the appellant of the charge. The appellant then sought special leave to appeal before this Court. The first ground of appeal contended that the High Court erred in overturning the trial court’s finding on the question of the appellant’s identity. The second ground argued that, pursuant to section 2(2) of the Foreigners Act as it stood before the amendment that took effect on 19 January 1957, the appellant, although a Pakistani citizen, was not a “foreigner” and therefore his entry into India prior to that date could not constitute an offence. A further submission claimed that the courts lacked jurisdiction to decide whether the appellant was a foreigner under the provision of section 9(2) of the Citizenship Act, 1955. The Court held that the appellant was indeed the person who had been deported on 21 April 1957 and that the High Court’s finding on his identity was therefore correct. The Court further held that if a person is a “foreigner” as defined in the Act at the time the offence is committed, an earlier status of not being a foreigner is immaterial and provides no excuse. Accordingly, because the appellant had been deported in April 1957 and subsequently re‑entered India without a passport, he was a foreigner under the amendment that came into force on 19 January 1957 and therefore committed an offence under section 3 of the Foreigners Act. Finally, the Court observed that the onus of proving that a person is not a foreigner rests on the accused, and the provisions of section 9(2) of the Citizenship Act are only relevant where a person who was originally an Indian citizen is alleged to have lost that citizenship by acquiring foreign nationality, a situation that did not arise in the present case.

In this matter the Court explained that under the Foreigners Act the burden of proof lies with the person who is charged under the Act to demonstrate that he is not a foreigner. The provision of section 9(2) of the Citizenship Act becomes relevant only when there is proof that a person was originally a citizen of India and it is alleged that he has lost his Indian citizenship by acquiring the nationality of a foreign State. The present appellant was a Pakistani national who first entered India on a Pakistani passport. After his deportation in April 1957 he returned to India without any passport, and therefore he could not invoke section 9(2) of the Citizenship Act. Consequently, the Court held that he had committed an offence punishable under section 3(2)(a) of the Foreigners Act.

This appeal, filed by special leave, is Criminal Appeal No. 14 of 1963 and challenges the judgment and order dated 9 November 1962 of the Rajasthan High Court in D.B. Criminal Appeal No. 502 of 1961. Counsel for the appellant and counsel for the respondent were instructed, and the judgment was delivered on 24 March 1964 by Justice Ayyangar. The appeal questioned the legality of the appellant’s conviction for contravening section 3 of the Foreigners Act, Act XXXI of 1946, which is an offence under section 14 of the same Act. The Court quoted the relevant portion of section 3, which authorises the Central Government to make provisions, generally or specifically, for prohibiting, regulating or restricting the entry of foreigners into India, their departure, or their presence in the country, and may prescribe conditions of entry, routes, ports and times. Section 14 was also reproduced, stipulating that any person who violates the provisions of the Act, any order made thereunder, or any direction issued under the Act, shall be liable to imprisonment for a term which may extend to five years and to a fine; if the person has entered into a bond under clause (f) of subsection (2) of section 3, such bond shall be forfeited and the bound person shall pay the penalty unless the convicting Court is satisfied that the penalty should not be imposed.

The factual background presented by the prosecution indicated that the appellant, Ibrahim, son of Miru, a resident of Rajgarh in Bikaner Division, was a Pakistani national who originally came to India on a Pakistani passport issued in 1954 and on the basis of a visa granted in December 1956. He was found to have overstayed in India from 18 February 1957, leading to a deportation order in March 1957. The order was executed on 21 April 1957, when he was taken across the Pakistan border at the Munabao check post by Indian police officials. After his deportation, the appellant managed to re‑enter India clandestinely at an unknown date, without a passport, which gave rise to the present proceedings.

In this case the appellant Ibrahim, son of Meeru, was a resident of Rajgarh in the Bikaner Division and held Pakistani nationality. He had originally entered India on a Pakistani passport that had been issued to him in 1954 and he was then permitted to remain in the country on the basis of a visa that was granted in December 1956. The authorities later discovered that Ibrahim had continued to stay in India beyond the period authorized by his visa, with the over‑stay beginning on 18 February 1957. Consequently the government issued an order in March 1957 directing that he be deported. The deportation order was executed on 21 April 1957 when Indian police officials escorted Ibrahim to the Munabao Check Post and escorted him across the border into Pakistan.

Subsequent to that deportation, and on a date for which the prosecution had no specific information, the appellant is alleged to have entered India again by clandestine means, without the knowledge of the Indian authorities. The Station House Officer of Rajgarh filed a report stating that the individual who had been deported had managed to cross the border at the Ganganagar side and had re‑entered Indian territory. Acting on that report, the police apprehended the appellant and charged him with the offence of entering India without a passport, contrary to section 3(2)(a) of the Foreigners Act.

The defence advanced a simple denial. The appellant asserted that he had been residing in India continuously since his birth, had never travelled to Pakistan, and therefore could not have entered India in 1957 on a Pakistani passport or been deported at that time. In other words, he maintained that he was not the same person who had allegedly entered India in 1957, been identified as Ibrahim, and subsequently deported in April 1957.

To support its case, the prosecution produced the official government order that directed the deportation of “Ibrahim, son of Meeru of Rajgarh.” That order contained a reference to his arrival in India on a passport and to the fact that he had overstayed the period permitted by his visa. The prosecution also introduced the general diary of the Emigration Check Post at Munabao dated 21 April 1957, which recorded that on that date the deportee Ibrahim was escorted by a Head Constable and that the deportation order was carried out. In addition, an entry from the deportation register of the same check post was produced, showing the date, the number of the Pakistani passport, the authority that issued the deportation order, and the details of the actual deportation.

To establish that the appellant before the court was the same Ibrahim mentioned in those documents, the prosecution called two witnesses. The first witness, Shiv Rattan, was the Police Inspector who was in charge of the Munabao Check Post on the relevant date and is identified as PW 2 in the trial record. The second witness, Govind Singh, was a peon posted at the police lines at Churn who had accompanied Head Constable Dube Singh when Ibrahim was taken to the check post for deportation. Both witnesses identified the appellant standing before the court as the individual they had seen being deported at Munabao.

The witnesses who had escorted the appellant from Rajgarh to the check post at Munabao for deportation were called to identify the man who appeared before the court. Both of these witnesses stated that the appellant, who was present in the courtroom, was the same individual named Ibrahim whom they had personally seen being sent off at the border check post in execution of the deportation order. The learned magistrate, however, expressed doubts about the adequacy of this identification. He reasoned that the two prosecution witnesses, identified as P.W. 2 and P.W. 3, were offering recollections after a lapse of four years, and therefore their memory of the appellant’s identity could not be trusted. In addition, the magistrate observed a discrepancy in one of the documents produced by the prosecution: the father’s name of the Ibrahim recorded in that document did not correspond with the name of the appellant’s father. Relying on these observations, the magistrate concluded that the identity of the appellant could not be established beyond reasonable doubt and consequently acquitted the accused. The State, dissatisfied with the acquittal, filed an appeal before the High Court. The learned judges of the High Court held that there was no doubt that P.W. 2 and P.W. 3 had correctly identified the appellant as the Ibrahim they had deported, and they set aside the magistrate’s order of acquittal. The High Court then convicted the appellant of the charge and imposed a term of imprisonment. The present appeal before this Court arises from that High Court judgment and was filed after the appellant obtained leave to appeal.

The first ground raised by counsel for the appellant challenged the identification of the appellant as the Ibrahim who had been deported. After reviewing the material, the Court is satisfied that the High Court’s assessment of the evidence was correct. Both witnesses, P.W. 2 and P.W. 3, were public servants, and there is no indication that they would give false testimony against the appellant. The documents produced by the prosecution, which were not contested, recorded the deported person’s name as Ibrahim, listed his father’s name as Miru, and stated his age as twenty‑seven, all of which correspond with the appellant’s description. Counsel for the appellant pointed out that in Exhibit P‑1, the deportation register at the check post recorded the father’s name as “Murra” rather than “Miru.” The Court explained that this apparent discrepancy could be the result of an inaccurate transliteration from Urdu into English, a possibility that counsel did not pursue further during argument. Consequently, the Court finds no merit in the appellant’s contention that the identification was doubtful. The second argument presented by counsel concerned the applicability of section 2(a) of the Foreigners Act, 1946, as originally enacted, which held that a citizen of Pakistan who was a member of the British Commonwealth was not deemed a “foreigner” within the meaning of that Act. The Court notes this submission for consideration in the context of the statutory interpretation that follows.

The Court observed that citizens of Pakistan became “foreigners” only after the amendment introduced by Central Act XI of 1957, which took effect on 19 January 1957. The argument presented on this basis asserted that a person could be convicted under section 3 of the Foreigners Act only if he was a “foreigner” at the time of the alleged offence. Counsel for the appellant relied on the prosecution’s own statement that the appellant had entered India on a Pakistani passport dated 1954, accompanied by a visa issued in December 1956. From these facts, the argument concluded that the appellant must have crossed the border before 19 January 1957. On that earlier date, the appellant would not have been a “foreigner” because, although Pakistani, he was a citizen of a Commonwealth country. Consequently, the argument claimed that he could not later acquire the status of “foreigner” and therefore no legal action could be based on such a later change of status.

The Court found no merit in this submission. A straightforward reading of the Foreigners Act indicates that if, at the time the offence is committed, a person is classified as a “foreigner” under the Act, it is irrelevant for him to assert that he was not a foreigner on some previous date. The Court, however, deemed it unnecessary to pursue this point further because the record did not contain any proof that the appellant had entered India before 19 January 1957. Even assuming, for the sake of argument, that he had entered earlier, this would merely imply that the deportation order issued in March/April 1957 was erroneous. That question was not before the Court, since it was unanimously accepted that, once the appellant’s identity was established, he had been deported to Pakistan in April 1957. Accordingly, any subsequent entry into India could only have occurred after that April deportation, and it was also undisputed that such an entry was made without a passport. Because the earliest possible date of re‑entry was after April 1957, by which time section 2(a) of the Foreigners Act—defining “foreigner”—had already been amended, the appellant was legally a foreigner when he entered India without a valid passport and visa, thereby violating section 3 of the Act. The Court therefore concluded that the appellant’s alleged status at the time of entry satisfied the statutory definition of “foreigner,” and the argument raised no substantive defence.

The Court further addressed the contention that the judiciary lacked jurisdiction to determine whether the appellant was a “foreigner,” alleging that section 9(2) of the Citizenship Act 1955 barred such a determination. The Court held that this submission was based on a misunderstanding of the law. Under section 9 of the Foreigners Act, the burden of proof lies on the person accused under that Act to establish that he is not a foreigner. Consequently, the Court affirmed that it possessed the requisite authority to examine the appellant’s status under the Foreigners Act, and that the provisions of the Citizenship Act did not preclude the Court from making such a determination.

The Court observed that the appellant’s argument that he could not be identified with the individual who was deported in April 1957 was rejected, and therefore it could not be asserted that the appellant had ever been an Indian citizen. The Court explained that a question under section 9(2) of the Citizenship Act arises only when there is proof that a person was initially a citizen of India and it is alleged that he subsequently lost that citizenship by acquiring the nationality of a foreign State. The present case did not meet that situation. The prosecution’s case was that the appellant was a Pakistani national who entered India in 1957 on a valid Pakistani passport, was lawfully deported in April 1957, and thereafter re‑entered India without the required travel documents, thereby contravening section 3(2)(a) of the Foreigners Act. Consequently, the Court found no circumstance in which section 9(2) of the Citizenship Act would be invoked or become relevant.

The Court noted an additional contention raised by counsel, which it did not permit to be argued. Counsel contended that the order under consideration had been issued by the State Government and that there was no evidence showing that the Central Government had delegated the requisite authority to the State Government. The Court held that this argument lacked substance because the offence charged was already defined by the terms of section 3(2)(a) of the Foreigners Act, as previously extracted, and the issue of delegation under section 12 of the Act had never been raised before the lower courts. No evidence was presented to establish any such delegation, and because the point was not raised in the earlier proceedings, the Court declined to allow it to be introduced at this stage. In affirming the findings of the lower judges, the Court concluded that the prosecution had successfully proved the offence charged against the appellant. The appeal was therefore found to have no merit, was dismissed, and the order of dismissal was confirmed.