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Advocates
  • Kan Singh Govt. Advocate, for Appellant
Judges
  • Mr. L.N. Chhangani
  • Mr. Indernath Modi
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Advocates
  • Kan Singh Govt. Advocate, for Appellant
Judges
  • Mr. L.N. Chhangani
  • Mr. Indernath Modi
Acts
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Smart Summary

Structured Summary of the Opinion (Modi, J.) — Appeal under the Foreigners Act

Factual and Procedural Background

This is an appeal by the State against a judgment and order of the City Magistrate, Kotah dated 28th February 1959 in a case under section 14 of the Foreigners Act, 1946, in which the accused was acquitted.

The prosecution alleged that the accused was a citizen of Afghanistan who entered India on 19/20 August 1955 on an Afghan passport and visa. Initial permission to stay for six months was later extended periodically until 13 August 1957. By a letter dated 2 August 1956, the Government of India required that the accused be served with a notice to wind up his business and leave India within six months of service; the prosecution says the Superintendent of Police served the notice (Ex. P-1) on the accused on 25 September 1956, which would make the last day to quit 25 March 1957. The accused was subsequently charge-sheeted under section 14 of the Act for contravening a quit order.

The accused's defence was that he was both an Afghan and an Indian national who had been living in both countries; that his father had lived in India for about forty years and that the accused had lived in India for about twenty-six years before the case; that he was born in Afghanistan; and that he had travelled between the two countries several times (left India in 1949, returned 1951; went to Afghanistan in 1954 and returned to India in 1955). The accused admitted that he lost his 1955 passport and obtained a duplicate and was uncertain whether he had obtained a registration certificate under the Registration of Foreigners Act 1939 (a certificate on record, Ex. P-5, shows nationality as "Afgan" and place of birth in Afghanistan).

At trial the prosecution called five witnesses; the accused also gave evidence. The City Magistrate acquitted the accused on two grounds: (1) the prosecution failed to prove that the accused was a foreigner, and (2) the prosecution did not prove that the notice to quit India (Ex. P-1) had been duly served on the accused. The State appealed against that acquittal.

Legal Issues Presented

  1. Whether the accused was a "foreigner" within the meaning of the Foreigners Act, i.e., whether he was not an Indian citizen at the commencement of the Constitution or thereafter.
  2. Whether the notice/order to quit India (Ex. P-1) was duly served on the accused (service being a prerequisite to prosecution under section 14 of the Act).
  3. Whether, if the accused is proven to be a foreigner, he could be validly prosecuted under section 14 in view of the proof (or lack thereof) of service of the quit order.

Arguments of the Parties

Appellant (State / Government Advocate)

  • The prosecution's primary case was that the accused was a foreigner and never a national of India.
  • The Government Advocate submitted that although the learned Magistrate was probably right to question proof of service of the notice, the Magistrate's finding that the accused was not a foreigner was incorrect and should be set aside.

Accused (Defence)

  • The accused claimed dual nationality (Afghanistan and India) and asserted long-standing connections with India: his father had lived in India for about forty years and the accused had lived in India for about twenty-six years prior to the case.
  • He stated he was born in Afghanistan, admitted to repeated travel between India and Afghanistan, admitted losing his passport and obtaining a duplicate in 1955, and was unsure whether he had obtained a registration certificate; the registration certificate on record lists him as "Afgan" by nationality and lists an Afghan birthplace.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court undertook a fact-and-law analysis focused on citizenship at the commencement of the Constitution (relying on Article 5 of the Constitution of India) and on the legal burden placed on a person claiming to be not a foreigner (section 9 of the Foreigners Act).

Key steps in the court's reasoning:

  1. The court examined Article 5, which provides that at the commencement of the Constitution a person with domicile in India who satisfies one of three conditions (born in India; either parent born in India; or ordinarily resident in India for at least five years immediately preceding commencement) shall be an Indian citizen. The court noted that the accused did not satisfy any of these three conditions on the material before the court.
  2. The court addressed "domicile": it explained the legal concept of domicile as the permanent place of dwelling (domicile of origin normally being the place of birth). The accused admitted he was born in Afghanistan, so prima facie his domicile of origin was Afghanistan.
  3. The court placed emphasis on the heavy burden that lies on a person who wishes to prove that he abandoned his domicile of origin and acquired a new "domicile of choice." The court referred to the principle (from international law/text authority cited in the opinion) that domicile of origin continues until a domicile of choice is acquired, and that acquisition requires clear proof of intention to make the new country one's permanent home.
  4. The court applied section 9 of the Foreigners Act, which places onus on the person claiming not to be a foreigner to prove that status (notwithstanding the Indian Evidence Act). The combined effect of section 9 and the domicile presumption meant the accused bore a heavy onus to show he had adopted India as his home.
  5. On the evidence, the court found the accused had not discharged that onus: although he gave evidence of residence in India and his father's long residence, the accused never affirmatively stated that he had adopted India as his home or had the requisite animus to constitute a domicile of choice. The registration document (Ex. P-5) recorded his nationality as "Afgan" and place of birth in Afghanistan; he himself stated he considered himself a national of both countries — a position the court said was incompatible with the Constitution's non-recognition of dual citizenship (Article 9 was cited in that context).
  6. For these reasons the court concluded that the learned Magistrate's finding that the prosecution had failed to prove the accused was a foreigner was legally untenable; the appellate court set that particular finding aside and held that, on the material before it, the accused must be regarded as a foreigner within the meaning of section 2 of the Act.
  7. Separately, however, the court noted that the prosecution had not proved that the quit order (Ex. P-1) was duly served on the accused. Because proper service of the order is a necessary precondition to criminal liability under section 14 for contravening a quit order, the lack of proof of service meant the court could not affirm a conviction and sentence under section 14 despite holding the accused to be a foreigner.

Holding and Implications

Holding: The court held that the learned Magistrate's conclusion that the prosecution had failed to prove that the accused was a foreigner was incorrect and that, on the material before the court, the accused must be held to be a foreigner within the meaning of section 2 of the Foreigners Act. At the same time, because the prosecution failed to prove that the quit order (Ex. P-1) was duly served on the accused, the court found it could not convict the accused under section 14.

Final disposition: APPEAL DISMISSED. The appellate court set aside the Magistrate's finding on the accused's foreigner status but, in view of the failure to prove service of the order to quit, dismissed the State's appeal and did not order a conviction under section 14.

Implications:

  • The accused was held, on the appellate court's view of the evidence, to be a foreigner; the Central Government had jurisdiction under section 3 to order him to quit. However, because the required service of the quit order was not proved, the criminal charge under section 14 could not be sustained and no conviction followed.
  • The decision produced no wider declaratory ruling beyond the application of Article 5, the statutory onus under section 9 of the Foreigners Act, and the principle on domicile; the court expressly relied on those legal principles to resolve the case. The opinion does not purport to lay down a new legal precedent beyond applying those principles to the facts of this case.

This summary is prepared exclusively from the contents of the provided opinion. No information not contained in the opinion has been added.

Show full summary ...

    State v. Abdullah Khan

    Modi, J.:— This is an appeal by the State against a judgment and order of the City Magistrate, Kotah, dated the 28th Feb., 1959, in a case under sec. 14 of the Foreigners Act (Act 31 of 1946 hereinafter called the “Act”) by which he has acquitted the accused.

    2. The material facts are these: It is alleged that the accused is a citizen of Afganistan and that under a passport from that Government and a visa obtained in consequence thereof the accused came to India on 19/20th August, 1955. He was originally permitted to stay in India for six months and this permission seems to have been subsequently extended from time to time until the 13th of August, 1957 for certain reasons however which are not disclosed on the record, the Government of India, by its letter dated the 2nd Aug., 1956, (Ex. P-3) to the Chief Secretary to the Government of Rajasthan, required that the accused be served with a notice to wind up his business and to leave India within a period of six months from the date of its service on him, and that in case he failed to do so, he be prosecuted according to law. The case for the prosecution then is that the accused was served with a notice (Ex. P-1) to quit India by the Superintendent of Police, Kotah, which is said to have been served on the accused on 25th of September, 1956. According to this the accused must have left India by the 25th of March, 1957, but he failed to do so. Consequently, the accused was charge sheeted for an offence under sec. 14 of the Act in the Court of the City Magistrate, Kotah.

    3. The defence of the accused put briefly, was that he was a citizen of Afganishtan as well as India and that he has been living in both countries. He further pleaded in this connection that his father had been living in India for a period of about forty years and that he also had been living here for the last twenty-six years preceding the filing of the case against him and that he was also registered as a voter on the electoral rolls of this country. It is further important to note that according to the accused he was born in Afganistan and that he had left India sometime in 1949 under some kind of permit, the particulars of which he has not disclosed, and that he had returned therefrom sometime in 1951, and similarly, he had again gone to Afganistan in 1954 and had came to India in 1955 and that he has throughout been coming and going like this. A definite question was put to the accused whether he had come back from Afganistan under a passport in 1955 and having lost the same he had obtained a duplicate copy thereof, and the accused admitted that was so. A further question was put to him whether the accused had obtained a registration certificate (Ex. P5) under the Registration of Foreigners Act 1939 on the 1st of June, 1956, and curiously enough, his reply was that he did not remember if he had obtained any such certificate. It may be noted that in this certificate the accused had mentioned his nationality as “Afgan” and his place of birth as “Rained Khal, District Gazni”, which is in Afganistan, and in column no. 6 headed as “previous nationality (if any)”, he made no statement whatsoever. He mentioned the purpose of his visiting India as money lending.”

    4. The prosecution produced five witnesses in support of its case and the accused also led evidence in support of his defence, and in the result the learned Magistrate held that the prosecution had failed to prove that the accused was a foreigner and also that it had not been proved that the notice to quit India (Ex. P-1) had been duly served on the accused, and for both these reasons, acquitted the accused. Aggrieved by this decision, the State has come up in appeal.

    5. It has been strenuously contended before us by the learned Government Advocate that although there is some force in the finding of the learned Magistrate that the notice given to the accused to quit India is not proved to have been duly served on him, his other finding to the effect that the accused was not a foreigner was quite wrong and deserved to be set aside. I

    6. Having gone through the entire evidence on record and on a careful consideration of the law relevant to the subject, we are disposed to think that this submission has force. The case of the prosecution is that the accused is a foreigner and was never a national of India. It is admitted that the accused was not in India at the time the Constitution came in force in 1950 and his case is that he had left India earlier in 1949. It is significant, however, that he failed to produce a certified copy of the original passport or to have the original summoned in that connection. Was the accused an Indian citizen at the commencement of the Constitution; For, it is not his case that he had acquired such citizenship latter. Now Article 5 of the Constitution of India reads as follows:—

    “5. At the commencement of this Constitution every person who has his domicile in the territory of India and—

    (a) who was born in the territory of India; or

    (b) either of whose parents was born in the territory of India; or

    (c) who has been ordinarily resident in the territory of India for not less than five years immediately preceding such commencement, shall be a citizen of India.”

    According to this Article before a person could be entitled to have the status of Indian citizenship on the coming into force of the Constitution, he must have had his domicile here, and then he must have had any one of the three qualifications which have been mentioned in that Article, that is,

    (a) he was born in India, or

    (b) that any of his parents were born in India, or

    (c) he had been ordinarily resident in India for not less than five years immediately preceding such commencement.

    It is obvious that on the facts we have mentioned above, the accused does not fulfil any of these three conditions last mentioned, and it is extremely difficult for us to hold on the same material that he had ever his domicile in this country. We may also take this opportunity of pointing out that the word “domicile”, broadly speaking, means the permanent place of dwelling, or home of the person concerned. Every person is supposed to have a domicile in law. This would usually be the place where the person is born, in the absence of any other domicile. But in the present case, we have it from the accused himself that he was born in Afganistan and not in India. It also seems to us that in the absence of anything to the contrary, a person must be deemed to have the place of his birth as his ordinary domicile. Prima facie, therefore, the accused's domicile was and would be in Afganistan. Then in order to induce us to hold that the accused had acquired any other domicile which is usually called a “domicile of choice” and that he intended to live in India as his home and had actually done so, a heavy burden lay upon him to establish that. It is true that the accused has led some evidence to show that he and his father have been living in India, presumably in connection with business, for a few years from time to time but it is highly remarkable that the accused has not had the courage to say that he had ever adopted India as his home or that he had lived in this country with that animus. In this connection, we have to draw attention to two provisions of law, the first being of the Municipal Law and the other of International Law. The former provision is contained in sec. 9 of the Act. It reads as follows:—

    “If in any case not falling under Sec. 8 any question arises with reference to this Act or any order made or direction given thereunder, whether any person is or is not a foreigner or is or is not a foreigner of a particular class or description the onus of proving that such person is not foreigner or of such particular class or description, as the case may be, shall, notwithstanding anything contained in the Indian Evidence Act, 1872, lie upon such person.”

    7. We may also point out here that sec. 8 of the Act can have no application to the present case, the reason being that the accused claims to be an Indian citizen and not a foreigner. The second provision of law, and which is a rule of International Law, is that there is a presumption of continuance of domicile and a domicile of origin continues to adhere to person even after he has abandoned it until such time as he obtains a domicile of choice (see Dicey's Conflict of Laws, Seventh Edition, Pages 90-92). The combined effect of these two provisions, in our mind, can only be that where a person wants it to be held that he had abandoned his domicile of origin, a very heavy onus lies on him and he must lead clear and cogent evidence before he can be held to have discharged that onus. We have carefully considered the evidence led by all the witnesses in this connection whether on the prosecution side or the defence and are categorically of the opinion that this onus has not been discharged. We have no hesitation in saying that mere residence in any other country, even for a number of years, can not be held to be sufficient to give that person a domicile of choice where he has held any other domicile, namely, that of origin and where such residence does not appear to have been attended with the intention of making the other country his home, a condition which, if we may say so, constitutes the very kernel of the matter. At no place has the accused said that he had ever lived in India with the intention of making it his home. On the other hand, we have it from him (accused) that he considers himself a national of both India and Afganistan, a position which to our mind, shatters his claim to Indian citizenship without more. In this connection, we may in passing refer to Art. 9 of the Constitution of India which clearly provides that no person shall be a citizen of India by virtue of Article 5, or be deemed to be a citizen of India by virtue of Article 6 or 8, if he has voluntarily acquired the citizenship of any foreign State. We mention this to show that our Constitution does not accept the concept of dual citizenship and, therefore, where a person says that he claims himself to be a citizen of another country we find ourselves utterly unable to hold that he can at the same time lay claims to citizenship of this country.

    8. In view of the above state of law, we are definitely of the opinion that the finding of the learned Magistrate that the prosecution has failed to prove that the accused was a foreigner, is untenable and we must set it aside. We hold accordingly.

    9. In the view we take, the accused must be held to be a foreigner within the meaning of section 2 of the Act and so it was open to the Central Government under sec. 3 thereof to order him to quit this country, and such a person, where he contravenes the provisions of such an order, would certainly bring himself within the clutches of sec. 14 of the Act. As we have already pointed out above however it has not been duly proved on the record that the order to quit was properly served on the accused, and that being so, we think that inspite of our finding that he has been proved to be a foreigner, we would not be justified in convicting and sentencing the accused under the last mentioned section.

    10. The result, therefore, is that this appeal must fail in the light of the observations we have made above, and we hereby dismiss it.

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    Comments

    State v. Abdullah Khan
    (Feb 19, 1962)