STATE Vs. DUKHTARI

JUDGEMENT

(1.) THE respondents were prosecuted under Section 5, Influx from Pakistan (Control) Act, 1949, (Act No. 23 of 1949) but were acquitted by the learned Magistrate. The State has filed these appeals and the point urged on behalf Of the State is that the order of acquittal was incorrect.

(2.) THE facts are really not in dispute. The respondents were all residents of various villages in haldwani, district Naini Tal presumably of parents who were also residents there. In the year 1948 Samvat Dukhtari, who is the respondent in Government Appeal No. 374 of 1952, went from Haldwani to West Pakistan. She went with her parents and left behind her husband in haldwani. The other respondents in the other six cases left in May 1950, except Nabi Raza Khan who left in July 1950. All the seven accused persons admittedly went to West Pakistan without a permit and then came back to India 'via' East Pakistan. Four of them, namely, Smt. Dukhtari, nabi Jan Khan, Abdul Rauf and Smt. Rais, wife of Abdul Rauf, returned to India on 8-11-1950, while three of them viz. Abdul Hamid, S. K. Ifran and Nabi Raza Khan returned to India in october, 1950. They were prosecuted on the ground that having entered Indian Union without a valid permit, as required by Section 3 of the Act and the rules framed there under, the respondents were guilty under Section 5 of the Act.

(3.) THE learned magistrate acquitted them as he was of opinion that the accused were not persons domiciled in India to whom Clause (d) of Rule 31 (2) applied. The magistrate's reasoning was that they were not persons domiciled in India as they had not acquired a domicile by residence but by birth. In other words, the learned magistrate was of the opinion that the words "persons domiciled in India" did not include persons whose "domicile of origin was India". On behalf of the State it is argued that there is no warrant for this interpretation and the decision of the learned magistrate is, therefore, wrong.