ALI HUSSAIN Vs. STATE

JUDGEMENT

(1.) This and the companion applications are directed against orders passed by a Magistrate before whom the applicants are being fried under Section 14 of the Foreigners Act for infringement of Rule 7 of the Foreigners Order, 1948, refusing to stay proceedings in the cases. All the applicants were citizens of India under Article 5 of the Constitution on 26-1-1950, went to Pakistan in April, 1950 and returned to India in 1955 or 1956 after obtaining passports from the Pakistan Government as citizens of Pakistan. The passports were endorsed with visas by the Indian Diplomatic Authority in Karachi limiting the period of their stay in India. They failed to depart from India before the expiry of the periods mentioned in their visas and are now being prosecuted for their failure under Section 14 of the Foreigners Act. Applications were made on their behalf for stay of the proceedings in the cases on the grounds that they could not he held to be foreigners unless they were held to have acquired the citizenship of Pakistan and thereby lost the citizenship of India, that the question whether they had acquired the citizenship of Pakistan or not was to be decided by the Central Government under Section 9 (2) of the Citizenship Act, 1955 and that they were referring the question to the Central Government for its decision. The trial court dismissed the applications observing that there was no provision under which it was bound to stay the proceedings in order to enable the applicants to obtain a decision from the Central Government on the question whether they had acquired the citizenship of Pakistan or not. It also observed that the applications were not bona fide and that the applicants had ample time to move the Central Government for its decision if they were so minded.

(2.) It may be assumed that the applicants became citizens of India on 26-1-1950 and continued to be so under Article 10 subject to the provisions of any law that may be made by the Parliament. The Citizenship Act was enacted by Parliament to provide for acquisition and termination of citizenship. In these cases, I am concerned with termination of citizenship. Section 9(1) lays down that any citizen of India who voluntary acquires, after 26-1-1950, the citizenship of another country shall, upon the acquisition or upon the commencement of the Act, cease to be a citizen of India. In sub-sec. (2) of the section it is laid down that if any question as to whether, when or how any person has acquired the citizenship of another country arisen, it shall be determined by such authority in such manner, and having regard to such rules of evidence, as may be prescribed in his behalf. In Rule 30 of the Citizenship Rules, 1956 made by the Central Government in exercise of the power conferred by Section 18 of the Act, it is laid down that if a question referred to in Section 9(2) of the Act arises, the authority to determine it shall, "for the purposes of Section 9 (2)" be the Central Government and that it shall determine it with due regard to the rules of evidence specified in Schedule III." Rule 3 of Schedule III is to the effect that the acquisition by a citizen of India of a passport from the Government of any other country, shall be conclusive proof of his having voluntarily acquired the citizenship of that country before the date of the acquisition.

(3.) If the applicants, when they came to India from Pakistan, were citizens of India, they were not governed by the Foreigners Act. The case for the prosecution was that by obtaining passports from the Pakistan Government is citizens of Pakistan, they acquired the citizenship of Pakistan and thereby lost the citizenship of India. The contentions of the applicants are that this question whether they have acquired the citizenship of Pakistan could be determined only by the Central Government and that the trial Court should stay the proceedings so long as it is not so determined.