ELAHI Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) IN this criminal revision, the petitioner invoking inherent jurisdiction of this Court, challenged his prosecution under section 14 of the Foreigners act, in connection with the G. R. Case No. 44/08 now pending before the learned Metropolitan Magistrate, 14th Court, Kolkata arising out of burrabazar Police Station Case No. 8 dated January 9, 2008 and prayed for quashing of the said proceedings.

(2.) MR. Amitava Ghosh, the learned Advocate, appearing in support of this application vehemently urged before this Court that the petitioner has been falsely implicated in the aforesaid case by the police. He further urged that the impugned proceeding under section 14 of the Foreigners act, having been initiated against the petitioner without determination of the question of his citizenship in accordance with Section 9 (2) of the citizenship Act read with Rule 30 of the citizenship Rules by the Central government, the competent authority is patently illegal and not tenable. In support of his submission mr. Ghosh vehemently relied on a decision of our High Court in the case of Haridas roy and Anr. v. Stafe of West Bengal, reported in 2000 Calcutta Criminal Law Reporter (Cal) 418. He draws the observation of this Court in Paragraphs-8 and 10 of the said decision and same are quoted below:-

(3.) SIMILARLY Mr. Ghosh relied another decision of our High Court in the case of Mrs. Raushan Ara @ Suraiya v. State of West Bengal, reported in 1996 Calcutta Criminal Law Reporter (Cal)223 for our case the observation of the Court in Paragraphs-9 and 11 of the said decision and same is quoted below:-"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 document 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 mere 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 section 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 Section 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 LJ 1103 and also 1963 supreme Court Appeals, 649 on the basis of the said decisions it has been argued that in the absence of a determination in accordance with Section 9 (2)of the Citizenship act read with Rule 30 of the 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 communicate by the enquiring authority to her. On the other hand, she was put under arrest after she was called to attend the Office of a Police officer and a Criminal Case under Section 14 of the Foreigners Act was started against her. It is contended on the basis of Articles 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", (para 9)