Citation Codes

Equivalent Citations

citation codes

Case Number

???

Attorney(S)

Pradip Kumar Ghosh
A.R.Saha
Tapandeb Nandi

Judges

Asish Baran Mukherjee, J.

Acts

s. 9(2) of the Citizenship Act read with Rule 30 of the Citizenship Rules
s. 9(2) of the Citizenship Act read with Rule 30 of Citizenship Rules,
SECTION 14 FOREIGNERS ACT
s. 9(2) of the Citizenship Act.
s. 14 of the Foreigners Act

See more information ...

Smart Summary

Judgment Summary — Asish Baran Mukherjee, J. (Revisional Application under ss. 401 & 482 Cr. P.C.)

Factual and Procedural Background

The revisional application under s. 401 and 482 Cr. P.C. sought to quash C.G.R. Case No. 3116 of 1995 (arising out of Section 'Y' Case No. 216 dated 19.9.95) and to set aside the order dated 4.4.96 passed by the Sub-Divisional Judicial Magistrate (S.D.J.M.), Alipore.

The petitioner was born in Calcutta on 2.12.1971 and claimed Indian citizenship by birth. She married a Pakistani national on 9.10.1993 and moved to Karachi, initially on an Indian passport (C-058173 dated 20.8.87). While in Karachi, she alleged severe physical and mental torture by in-laws and, after surrendering her Indian passport, obtained a Pakistani passport (A-231761 dated 26.9.94). Using that passport and a visa she entered Calcutta in November 1994, stayed for six months, and returned to Karachi in May 1995. Thereafter, due to family circumstances, she obtained a fresh Pakistani passport (B-013400 dated 18.6.95), obtained a visa, and re-entered India (New Delhi 12.7.95; Calcutta 14.7.95), recording her arrival with the authorities.

The petitioner applied for extension of her visa before its expiry (applications and communications with the Visa Extension Office, Special Officer, Home (Passport) and other government officials described). She alleges the authorities received her application(s) but did not reply; instead she was telephonically summoned to a Police Officer's office on 19.9.95 whereupon Section 'Y' Case No. 216 of 1995 was started and she was arrested and later enlarged on bail by the S.D.J.M., Alipore. Subsequent communications with Special Branch officers and the Home Secretary are recorded in the text.

The Government of West Bengal later sought to withdraw the criminal prosecution by filing an application under s. 321 Cr. P.C. (filed 20.3.96 and another on 22.3.96). The S.D.J.M. rejected the prayer for withdrawal by order dated 4.4.96. The petitioner challenges the initiation and continuance of prosecution under s. 14 of the Foreigners Act, arguing that her citizenship status has not been determined by the Central Government under s. 9(2) of the Citizenship Act (read with Rule 30 of the Citizenship Rules) and that prosecution is therefore untenable.

Legal Issues Presented

Whether a criminal prosecution under s. 14 of the Foreigners Act can be validly initiated and continued against a person who claims to be an Indian citizen by birth in the absence of a prior determination by the Central Government under s. 9(2) of the Citizenship Act read with Rule 30 of the Citizenship Rules that the person has lost Indian citizenship.
Whether acquisition of a foreign passport (here, a Pakistani passport), including where it is alleged to have been obtained under compulsion, automatically leads to loss of Indian citizenship or whether such loss must be determined by the Central Government in accordance with s. 9(2) of the Citizenship Act and Rule 30.
Whether initiation of criminal proceedings under the Foreigners Act amounts to an abuse of the process of the court where the alleged foreign national applied for visa extension before expiry, received no adverse determination from the relevant authority, and was nevertheless prosecuted.

Arguments of the Parties

Petitioner's Arguments

The petitioner asserts she is an Indian citizen by birth (born and resident in Calcutta until marriage) and did not lose citizenship merely by migrating to Pakistan after marriage.
Acquiring a Pakistani passport was compelled by her in-laws and thus cannot operate to take away her Indian citizenship.
Determination of citizenship loss or acquisition of foreign nationality must be made by the Central Government under s. 9(2) of the Citizenship Act read with Rule 30 of the Citizenship Rules; no such determination had been made.
She entered India on a valid Pakistani passport and visa and applied for visa extension before expiry; despite cooperating and producing relevant documents the authorities did not decide the visa-extension request and instead initiated criminal proceedings under s. 14 of the Foreigners Act.
Article 7 and Article 9 of the Constitution were invoked to contend that her citizenship cannot automatically come to an end under the facts of this case.
In absence of Central Government determination, initiation of criminal proceedings is bad in law and an abuse of process.
Reliance was placed on authorities (reported at 1971 Cr. L.J. 1103 and 1963 SCA 649) supporting the proposition that a prior determination is required.

State's Arguments

The Learned Advocate for the State supported the prosecution but could not properly explain the decision of the Government of West Bengal to withdraw the case, which prompted the A.P.P. to file an application under s. 321 Cr. P.C. seeking withdrawal.
The State produced the case diary reflecting the Government decision that prompted the A.P.P. to seek withdrawal, but no detailed argumentation refuting the petitioner's contention regarding the necessity of a prior Central Government determination is recorded in the opinion.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
1971 Cr. L.J. 1103	That a determination by the Central Government under s. 9(2) of the Citizenship Act (read with Rule 30 of the Citizenship Rules) is a condition precedent to commencing proceedings under the Foreigners Act, and that a subsequent determination during an ongoing criminal proceeding does not fulfill this requirement.	The court relied on this authority to conclude that initiation of prosecution under the Foreigners Act without a prior Central Government determination was untenable and to quash the criminal proceeding.
1963 SCA 649	Relied upon for the proposition that loss of Indian citizenship or acquisition of foreign citizenship is a matter for determination by the Central Government under the prescribed statutory scheme.	The court noted reliance on this decision (along with 1971 Cr. L.J. 1103) in the petitioner's submissions to support the necessity of a prior administrative determination before criminal proceedings could be sustained.

Court's Reasoning and Analysis

The court's analysis proceeded by applying the statutory framework and the facts presented by the petitioner without delving into the merits of the S.D.J.M.'s rejection of the application under s. 321 Cr. P.C. Key steps in the reasoning were:

The court accepted as undisputed that the petitioner was originally an Indian citizen by birth and that she migrated to Pakistan in October 1993 after marriage.
The court noted that the petitioner's entries into India were not clandestine: she entered on the strength of a Pakistani passport and a visa granted by the Government of India, and she applied for visa extension before expiry and cooperated with enquiring authorities by producing documents (including ration cards).
The court observed that, despite the petitioner's applications and cooperation, the relevant authority neither granted nor rejected the visa extension and instead initiated criminal proceedings under s. 14 of the Foreigners Act and caused her arrest.
The court identified s. 9(2) of the Citizenship Act read with Rule 30 of the Citizenship Rules as prescribing that the Central Government is the authority to determine loss or acquisition of citizenship; such determination was a condition precedent to treating the petitioner as a foreigner for purposes of prosecution under the Foreigners Act.
Relying on the cited authorities (including 1971 Cr. L.J. 1103), the court held that a determination made during the continuance of criminal proceedings does not satisfy the statutory requirement that the Central Government's determination precede initiation of prosecution.
Given the absence of any prior Central Government determination that the petitioner had lost Indian citizenship, the court concluded that initiation and continuance of the prosecution under the Foreigners Act against her were not tenable and constituted an abuse of the process of the court.

Holding and Implications

Holding: The revisional application is allowed and the criminal proceeding C.G.R. Case No. 3116 of 1995 pending before the S.D.J.M., Alipore is quashed.

Directions and immediate consequences:

The State of West Bengal is directed to hand over to the petitioner the Pakistani passport on the basis of which she entered India (the passport that had been in custody).
The petitioner is at liberty to leave India within 30 days from the date of handing over of that passport.
Her stay in India during that 30-day period shall be in accordance with law and the Government shall not curtail her liberty in any manner during that period.
The revisional petition is allowed on contest; the court expressly quashed the prosecution and gave directions to the State concerning the passport and the petitioner's liberty to depart.

Implications regarding precedent and broader law:

The court's order rests on the proposition—supported by cited authorities—that a prior administrative determination by the Central Government under s. 9(2) of the Citizenship Act (and Rule 30 of the Citizenship Rules) is a statutory condition precedent before criminal proceedings under the Foreigners Act may be validly initiated. The opinion quashes the prosecution on that basis and does not purport to create any broader legal principle beyond applying the existing statutory scheme and precedent to the facts of this case. In other words, the direct effect is to terminate the specific prosecution and to restore the petitioner's immediate liberty to leave India; the opinion does not record the creation of a new precedent beyond reliance on existing authorities.

Show full summary ...

In Re v. Raushan Ara

Asish Baran Mukherjee, J.:—This revisional application preferred under s. 401 and 482 Cr. P.C has been filed in order to quash the C.G.R Case No. 3116 of 1995 arising out of Section ‘Y’ Case No. 216 dated 19.9.95 as also to set aside the order dated 4.4.96 passed by the Ld. Sub-Divisional Judicial Magistrate, Alipore in the said case.

2. The case of the petitioner in short is that her father is an Indian citizen having his permanent place of residence in Calcutta. The petitioner was born in Calcutta on 2.12.71 and as such she is a citizen by birth and was also a permanent resident of Calcutta. Her marriage was celebrated on 9.10.93 with one Pakistani national, Mr. Zahid Ahmed of Karachi and therefore, she left with her husband in Karachi to lead a matrimonial life. She left India on the basis of an Indian passport being C-058173 dated 20.8.87 issued by the Regional Passport Office in Calcutta.

3. While staying at Karachi the petitioner was insisted upon by her in-laws and under severe physical and mental torture by them she had to acquire a Pakistani passport being A-231761 dated 26.9.94 after surrendering the Indian Passport.

4. On the strength of the Pakistani passport she visited Calcutta in November, 1994 and stayed for six (6) months and in May, 1995 she returned to Karachi. On reaching there she found that her in-laws had already left for Bahrein and her husband had also arranged to leave for Soudi Arabia for a job. Even after repeated request she was not allowed to accompany her husband who left alone in June, 1995 leaving the petitioner at Karachi. Due to mis-behaviour of two adult brothers of her husband, she with the help of some well-wishers at Karachi obtained a new Pakistani passport as the original one was detained by her in-laws being passport No. B-013400 dated 18.6.95 After obtaining visa she came to New Delhi on 12.7.95 and from there to Calcutta on 14.7.95 She also recorded her arrival to the concerned authority. Being asked by F.R.R.O Office, Theatre Road was explained the reason for acquiring a new passport instead of the old one.

5. Her visa was due to expire on 10.8.95 and as the petitioner wanted to extend her stay in Calcutta, she went to the Visa Extension Office of the Deputy Secretary, Home (Passport) on 31.7.95 for extension of visa. Later she applied for an extension in the prescribed form supplied by the said office. She also approached the Special Officer, Home (Passport) Department for extension of her visa. Her application reached the said office on 9.8.95 By letter dated 8.8.95 she informed the Deputy Secretary, Home (Political), Government of West Bengal and also several other Government officials including the Commissioner of Police, Calcutta requesting all of them to arrange extension of visa. Since no reply was received, she again sent an application on 28.8.95 supported by documents including Indemnity Bond to the Special Officer Home (Passport), that application was duly received by the authority. But it was not replied. Instead she received a telephonic call asking her to see a Police Officer in his Office at 34A, Theatre Road on 19.9.95 for an enquiry in connection with tong term visa. She accordingly went there, where upon the Section ‘Y’ Case No. 216 of 1995 was started and she was put under arrest. She was enlarged on bail by the S.D.J.M, Alipore on the said date. Later another telephonic massage asked her to meet another Officer of the Special Branch on 13.10.95 She met him produced all relevant papers but till date result of the enquiry was not communicated to her. On 24.10.95 she wrote to the Home Secretary, Government of West Bengal with the request for a long term visa. She also wrote to the Deputy Commissioner of Police, Special Branch on 17.11.95

6. In the meantime, there was a change of the circumstances in the house of the in-laws through the intervention of some friends and relatives and her husband and parent-in-law agreed to take her back as soon as possible. The petitioner is also ready and willing to go to Karachi to lead her normal matrimonial life but due to the pendency of the C.G.R Case under section 14 of the Foreigners Act she is unable to leave India as per condition imposed in the bail order.

7. On 4.12.95 she wrote to the Home Secretary requesting him to ignore her application but to allow her to leave India for Karachi by using her Pakistani Passport. Ultimately, Government agreed to withdraw that case against her and on 20.3.96 the A.P.P filed an application under s. 321 Cr. P.C before the S.D.J.M, Alipore praying for withdrawal of the present case. The petitioner filed another application also on the same day with the same prayer. On 22.3.96 the A.P.P filed another application under s. 321 Cr. P.C but after hearing the A.P.P the S.D.J.M rejected the prayer for withdrawal by order dated 4.4.96

8. It is alleged that the fact that she applied for extension of visa before the expiry of period mentioned in the earlier visa was not considered by the Court. The fact that at no point of time she was served with a notice by the Central Government for her alleged over-stay in Calcutta was not also considered. It is contended that in the absence of such action on the part of the Central Government the starting of the Criminal Case is not in accordance with law and its continuance is an abuse of process of the Court. It is alleged that her status has not yet been determined by the Central Government and in accordance with s. 9(2) of the Citizenship Act. She being an Indian citizen whether in the aforesaid facts and circumstances she has lost the same as a matter to be determined by the Central Government being the only authority for the purpose and in the absence of such determination no case can be started against her. With this prayers she has preferred the revisional application.

9. I have heard the Learned Advocate appearing for the petitioner and also the Learned Advocate appearing for the State. On the point of fact Learned Advocate appearing for the petitioner has produced xerox copies of number of documents to show that since her birth in Calcutta, she is perusing her studies in Calcutta till she left the same for Karachi on her marriage on 9.10.93 It has been argued that the petitioner being an Indian citizen, the citizenship was not lost merely by her migrating to Pakistan after her marriage. It is contended that more acquisition of a Pakistani passport under compulsion by her in-laws cannot take away her citizenship in India. It is also argued that the question of petitioner continuing to remain an Indian citizen or acquiring citizenship of another country in this case Pakistan can be determined by the Central Government alone in accordance with s. 9(2) of the Citizenship Act read with Rule 30 of the Citizenship Rules. It is contended that such determination has not been made as yet and as such initiation of a Case under s. 14 of the Foreigners Act is bad in law. In support of his contention the Learned Advocate amongst others has relied on decisions reported in 1971 Cr. L.J, 1103 and also 1963 SCA 649 on the basis of the said decisions it has been argued that in the absence of a determination in accordance with s. 9(2) of the Citizenship Act read with Rule 30 of Citizenship Rules, it cannot be state that she has lost her citizenship in India or she has acquired citizenship of Pakistan. It has also been contended that she came to India on the basis of a valid passport and visa and before the expiry of the period mentioned in the visa she applied to the proper authority for extension of the same and inspite of repeated sittings no decision was taken or communicated by the enquiring authority to her. On the other hand, she was put under arrest after she was called to attend the Office of the Police Officer and a Criminal Case under s. 14 of the Foreigners Act was started against her. It is contended on the basis of Article 7 and 9 of the Constitution of India that her citizenship cannot automatically come to an end in the facts and circumstances of the case.

10. The Learned Advocate appearing for the State while supporting the prosecution could not properly explained his stand vis-a-vis the decision of the Government of West Bengal to withdraw the case against her which prompted the concerned A.P.P to file an application under s. 321 Cr. P.C for withdrawal of the criminal case against her. He however, produced the case diary of concerned case which reveals the decision of the Government which prompted to A.P.P to pray for withdrawal.

11. After giving my careful consideration to the submissions of both the sides and having regard to the law as laid down by the cited decision it can at once be said without going into the merit of rejection of an application under s. 321 Cr. P.C in this particular case that the initiation of a proceeding under the Foreigners Act against the petitioner is not at all tenable in law. That the petitioner is originally a citizen of India by birth cannot be disputed. It is true, that in October, 1993 she migrated to Pakistan to her matrimonial home following her marriage with a Pakistani national. During her stay in the matrimonial home she visited Calcutta on the strength of a Pakistani passport and visa allowed by the Govt. of India and stayed in India for six(6) months. In the present case her entrance to India is not a clandestine affair but she came on the strength of a valid Pakistani passport and a visa granted by the Government of India. She applied for extension of the visa before its expiry and fully co-operated with the enquiring authority by producing documents including Ration Cards in her favour. The said authority neither rejected nor allowed the prayer for extension but started a case under the Foreigners Act against her put her behind the bar. There being no determination by the Central Government being the only authority in accordance with s. 9(2) of the Citizenship Act read with Rule 30 of the Citizenship Rules that she has lost Indian citizenship and that she is a Foreign nationals, her Indian citizenship stands good and as such no criminal prosecution can lie against her in accordance with the Foreigners Act. As such the continuance of such a proceeding is absolutely an abuse of process of the Court.

12. The determination by the Central Government as per Rules cited above is a condition precedent before starting of a case under the Foreigners Act. Such a determination even if made during continuance of a criminal proceeding under the Foreigners Act does not satisfy the requirement of law as has been held by the Supreme court in 1971 Cr. L.J 1103. As such without going into merits of the rejection of the prayer for withdrawal preferred by the Govt. of West Bengal through the A.P.P before the Sub-Divisional Judicial Magistrate, Alipore it is concluded that the prosecution being C.G.R Case No. 3116 of 1995 pending before the S.D.J.M, Alipore should be quashed.

13. Accordingly, the Criminal Case being C.G.R Case No. 3116 of 1995 pending before the Ld. S.D.J.M, Alipore is quashed the opposite party, namely, State of West Bengal is directed to hand over Pakistani passport on the basis of which the petitioner entered India to the petitioner immediately. The petitioner will be at liberty to leave India within the period of 30 days from the date of such handing over of the Pakistani passport and her stay during the aforesaid period in India shall be in accordance with law and in course of her stay, her liberty cannot be curtailed by the Government in any manner. The revisional application is accordingly allowed on contest.

Application allowed.

Proceeding quashed. Direction given.

T.D.N

In Re v. Raushan Ara

Judgment Summary — Asish Baran Mukherjee, J. (Revisional Application under ss. 401 & 482 Cr. P.C.)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioner's Arguments

State's Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

In Re v. Raushan Ara

Comments