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Mohd. Hanif Khan v. State
Factual and Procedural Background
The applicant was convicted under Section 14 of the Foreigners Act for allegedly contravening Rule 7 of the Foreigners Order, 1948 by failing to depart India before the expiry of his visa period dated 20-8-1954. The applicant was born in British India, served in the Indian Army, and after partition moved to Karachi. He resigned from the Army in 1948 and returned to India in 1954 on a Pakistani passport with a visa permitting stay until 20-8-1954. The courts below convicted him for not leaving India within the visa period.
Legal Issues Presented
- Whether the applicant committed an offence under Section 14 of the Foreigners Act by not departing India before the expiry of the visa period mentioned on his passport.
- Whether Rule 7 of the Foreigners Order, 1948 applies to the applicant given the absence of a permit and the timing of his entry into India.
- Whether the applicant was a "foreigner" under the Foreigners Act at the time of his entry into India in 1954, considering the definition of "foreigner" before and after the 1957 amendment.
Arguments of the Parties
The opinion does not contain a detailed account of the parties' legal arguments.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Ali Sher v. The State, 1959 A.L.J R. 833 | Whether a person who was not a foreigner at the time of entry but became a foreigner later by amendment to Section 2 of the Foreigners Act is bound by Rule 7 of the Foreigners Order. | The court respectfully disagreed with the precedent, holding that Rule 7 applies only if the person was a foreigner at the time of entry, and thus the precedent was not followed or referred for reconsideration. |
Court's Reasoning and Analysis
The court examined the distinction between a 'visa' and a 'permit' under Rule 7 of the Foreigners Order, 1948. Rule 7 mandates that a foreigner must depart India before the expiry of the period specified in a permit, not a visa. Since the applicant did not hold a permit, there was no proof of a limited authorized stay period under Rule 7. The court further analyzed the definition of "foreigner" under Section 2 of the Foreigners Act as it stood in 1954, concluding that the applicant was not a foreigner at the time of entry because he was a natural born British subject. The 1957 amendment to Section 2 expanded the definition of "foreigner," but this change was prospective and did not apply retroactively to the applicant's 1954 entry. Consequently, Rule 7 did not govern the applicant's stay, and he could not be convicted under Section 14 for failing to depart by the visa expiry date. The court also addressed a conflicting precedent but chose not to refer the matter to a larger bench since the applicant was acquitted on other grounds.
Holding and Implications
The court allowed the application, set aside the applicant's conviction and sentence, and acquitted him.
The direct effect of this decision is the applicant's release and discharge of his bail bonds. The court did not establish any new precedent, explicitly declining to reconsider the conflicting precedent cited. The ruling clarifies that under the Foreigners Act and Order as they stood in 1954, the obligation to obtain a permit and depart accordingly applies only to persons who were foreigners at the time of entry, not to those who became foreigners due to later amendments.
Desai, J.:— The applicant has been convicted under Sec. 14 of the Foreigners Act for contravention of R. 7 of the Foreigners Order, 1948. He was born in the British India and his parents were residents of British India. He was employed in the Indian Army and after the partition of India, he went to Karachi with his platoon. He resigned from the Army in 1948 and came to India under a passport obtained as a Pakistani national in 1954. Under the visa he was entitled to stay in India upto 20-8-1954. He did not depart from India for Pakistan on or before 20-8-1954 and has been convicted by the courts below under Sec. 14 of the Foreigners Act for the alleged contravention of R. 7 of the Foreigners Order 1948.
2. Under Sec. 14 of the Foreigners Act, a person is punished for contravening the provisions of the Act or of any Order made thereunder. The Foreigners Order, 1948 was made by the Central Government in exercise of the powers conferred by Sec. 3 of the Act. R. 7 of the Order reads as follows:—
“Every foreigner who enters India on the authority of a Visa……..shall obtain ……..a permit indicating the period during which he is authorised to remain in India and shall…….. depart from India before the expiry of the said period:
Provided that this requirement shall be deemed to have been complied with by a foreigner who enters India as a Tourist and is granted a certificate of Registration in Form D…………..”.
3. Now the applicant is said to be guilty of infringement of R. 7 by not departing from India on or before 20-8-1954. There is no, evidence that he entered India as a tourist, his case is, therefore, not covered by the proviso. There is no evidence that he obtained any permit in compliance with R. 7 and if there is no evidence of any permit, there is no evidence of the period limiting his stay in India or before the expiry of which he was bound to depart from India. R. 7 requires a foreigner to depart from India on the expiry of the period mentioned in the permit and not on the expiry of the period mentioned, if at all in the visa.
4. The period mentioned in the visa is irrelevant and no offence of infringement of R. 7 is committed by his not departing from India before its expiry. He certainly continued to stay in India after the expiry of the period mentioned in the visa but this act is not prohibited by R. 7 and does not render him punishable under Sec. 14 of the Act. A ‘permit’ is different from a ‘visa’ and whatever is laid down in R. 7 in respect of a permit cannot be applied to a visa. In the absence of proof of the period fixed for his stay in a permit he could not be convicted under Sec. 14. There is an explanation for his not obtaining a permit because as I shall show presently he was not governed by R. 7 when he came to India.
5. There is another reason also for setting aside the applicant's conviction and it is that when he entered India in 1954, he did not enter as a foreigner. According to the definition of a ‘foreigner’ in Sec. 2 of the Foreigners Act, as it was in force in 1954, he was not a ‘foreigner’ because he was a natural born British subject. R. 7 of the Foreigners order applies to a person, who is a foreigner at the time of entry into India and not to a person who was not a foreigner at the time of entry but becomes a foreigner by a subsequent change in the law. The definition contained in Sec. 2 of the Foreigners Act was amended in 1957 and under the amended definition any person who is not a citizen of India, is a foreigner. It may be assumed that the applicant had migrated from India and therefore, was not a citizen of India and consequently has become a foreigner under the amended definition but he has become a foreigner only with effect from 1957 when the amendment came into force. Upto 1957 he was not a foreigner and was not governed by the Foreigners Order, 1948. He was not required to obtain a permit on entry into India and if he was not required to obtain a permit on entry into India there was no question of his departing from India on the expiry of the period mentioned in the permit and no question of his being guilty under Sec. 14 by refraining from so departing. He could not possibly have become subject to the provisions of R. 7 because that rule could apply only if it was applicable at the time of entry and not otherwise. I was referred to a contrary decision by my brother D.S Mathur in Ali Sher v. The State 1959 A.L.J R. 833.. With great respect, I disagree that a person, who was not a foreigner at the time of his entry into India, came under the obligation of R. 7 of the Foreigners Order on his becoming a foreigner by amendment of Sec. 2 of the Foreigners Act and that he was bound to depart from India as soon as he become a foreigner or on the expiry of the period mentioned in the visa. Since the applicant deserves to be acquitted on another ground, I do not think it necessary to refer the case to a Bench for considering whether the case of Ali Sher v. The State was correctly decided or not.
6. I allow the application, set aside the applicant's conviction and sentence and acquit him. His bail bonds are discharged.
7. Revision allowed.
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