The State v. Mst. Bashiran

Bapna, J.:— This is an appeal by the State against the acquittal of Mst. Bashiran on a charge under sec. 5 of the Influx from Pakistan (Control) Act, 1949.

2. The facts are not disputed. Mst. Bashiran entered India from West Pakistan under a temporary permit dated the 22nd of September, 1948, and the duration of visit was one month.

3. She was permitted to stay in India from 24th September, 1948, to 23rd October, 1948. She, however, did not return to Pakistan, and a chalan was presented on the 29th October, 1949, that she had violated the provisions of the Rule 19 of the Permit System Rules of 1949 framed under sec. 4 of the Influx from Pakistan (Control) Act, 1949 (Act No. XXIII of 1949), inasmuch as she stayed in India after the date of the expiry of the permit. Only certain formal evidence was produced on behalf of the prosecution, and Mst. Bashiran was examined on the close of the prosecution case. She admitted that Page: 368she had come to Jaipur from Pakistan under a temporary permit, Ex. P.1, on 2nd of October, 1949. She also admitted that she did not go back to Pakistan as she should have done under the terms of the permit, Ex. P.1, and had been staying at Jaipur after the 24th October 1948. She was asked if she had anything further to say, and she replied that her husband had died, and she was living with her father. The trial court acquitted the accused on the ground that the law applicable on the date of the return of the accused was the Influx from West Pakistan (Control) Ordinance, 1948 (Ordinance No. XVII of 1948), promulgated by the Governor General, and the first Rules framed on 4th September, 1948, did not provide for any punishment for staying in India beyond the period allowed by the permit, and the subsequent Rules (Permit System Rules, 1948) framed by the Central Government on the 7th of September 1948, did not, according to the Magistrate, come into operation before the 1st of December, 1948, when they were published in the Jaipur Rajpatra. According to the learned Magistrate, no offence had been committed by the accused by overstaying beyond the 24th of October, 1948, as Rule 12, which prohibited the stay in India after the date of expiry of the permit, came into force when the accused was already in India. The State has filed the appeal against the order of acquittal.

4. The view taken by the learned Magistrate is wrong for more than one reason. In the first plate, the Influx from West Pakistan (Control) Ordinance, 1948 (No. XVII of 1948) was promulgated by the Governor General and extended to the whole of India, and became the law of India as soon as it was published in the Gazette of India. Originally a few rules regarding permit system between West Pakistan and India were framed along with the Ordinance, but they were made elaborate on the 7th of September, 1948. On this date, the Central Government in exercise of the power conferred by sec. 3 of the Ordinance framed Rules known as the Permit System Rules, 1948, and they became the law in India irrespective of the fact that they were published in the Jaipur Rajpatra later on, on 1st December, 1948. The publication which was important was the publication in the Gazette of India, and the learned Government Advocate has pointed out that they were so published on the 7th of September, 1948. This is not disputed by the learned counsel appearing for the accused. The lower court was, therefore, not right in holding that these Permit System Rules, 1948, came into force on the 1st of December, 1948.

5. Even assuming, for the sake of argument, that the Rules came into force after the accused had come to India, Rule 12 said that

“No person holding a temporary permit shall stay in India after the date of expiry of such permit”.

and a contravention of the Rules was made an offence by sec. 4 of the Ordinance. That section was as follows:—

“Any person who contravenes the provisions of sec. 3 or of any rule made thereunder shall be punishable with imprisonment which may extend to one year, or with fine which may extend to one thousand rupees, or with both such imprisonment and fine”.

6. Now if the Permit System Rules, 1948, came into force on the 1st of December, 1948, she became guilty by staying thereafter, although her previous stay may not form the subject of charge. This is, however, only on the supposition that the Permit System Rules, 1948 came into force on the 1st of December, 1948; but as we have said above, our view is that they came into force immediately on their publication in the Gazette of India. Ordinance No. XVII of 1948 was superseded by Ordinance No. XXXIV of 1948, and the latter Ordinance by the Influx from Pakistan (Control) Act (No. XXIII of 1949). This Act was published in the Page: 369Gazette of India on the 23rd of April, 1949. The Rules framed under sec. 4 of Act No. XXIII of 1949 were called Permit System Rules, 1949, and Rule 19 thereof is a verbatim reproduction of Rule 12 of the Permit System Rules of 1948. As the chalan was presented in October 1949, the charge naturally mentioned contravention of Rule 19 of the Permit System Rules of 1949. The order of acquittal was thus erroneous.

7. Learned counsel for the accused argued that Rule 19 was ultra vires the Legislature, as it contravened Article 19(1)(e) of the Constitution. It was contended that the accused was a citizen of India, and had the right to reside and settle in any part of the territory of India, and had committed no offence by staying in India after the expiry of the date of the permit. Learned counsel relied on Shabbir Husain v. The State of U.P A.I.R 1952 All. 257. In that case it was held that a citizen of India, if he came back from Pakistan on a temporary permit, was entitled to stay in India even after the expiry of the permit, and he could notice, deported, and that Rule 19 of Permit System Rules, 1949, would only apply to persons who were not citizens of India. The plea was not taken in the lower court, and learned counsel was permitted to state the plea and the, facts in support of it so that, if necessary, the case could be remanded for further evidence. The petition presented by him, however, shows that this case is not on all fours with the case of Shabbir Husain A.I.R 1952 All. 257, referred to above. It is stated in the petition that she had been residing at Jaipur since her birth, and had gone to Pakistan some time in June, 1948, for the temporary purpose of meeting her relations there, and returned to India on a temporary permit because she failed to obtain a permanent permit. In the case of Shabbir Husain, an affidavit had been filed before the Deputy High Commissioner of India prior to his visit to Pakistan that he was going to Lahore (Pakistan) for a short period in connection with his lousiness, it was also proved that he had made an application for a permanent permit, but was unable to secure one. It was also proved that h? had not migrated to Pakistani, meaning thereby that he had not gone to Pakistan with the intention of living there permanently. In the present case, the temporary permit Ex. P.1, which is admitted and which was issued, oil application by the accused herself discloses that she was coming to India only temporarily, as her mother was seriously ill, and she wanted to take her to Pakistan. There is no allegation that she did anything while in Pakistan to obtain a permanent permit or that she was desirous of settling permanently in India. In the circumstances, no useful purpose will be served by taking further additional evidence. The Appellant is guilty under, sec. 5 of the Influx from Pakistan (Control) Act, 1949.

8. Learned counsel urged that Mst. Bashiran was a girl under 18 years of age, and had now remarried a citizen of India, as her previous husband had died, and this fact may be taken into consideration while awarding punishment.

9. The appeal is allowed, and the respondent, Mst. Bashjran, is convicted under sec. 5 of the Influx from Pakistan (Control) Act, 1949, and sentenced to pay a fine of Rs. 200/-. In default of payment of fine, she will suffer rigorous imprisonment for one month. Fifteen days' time is allowed to pay the fine, which will be deposited in the trial court.