YAKUB MOLLA Vs. UNION OF INDIA

JUDGEMENT

(1.) THE petitioner Yakub Molla was a resident of Jahangirpur within Kotwali Police Station in the district of Nadia. In the early part of 1950 he along with the members of his family consisting of his wife, sons, etc. went to Eastern Pakistan. According to the petitioner, he was compelled to do so because his properties in Jahangirpur were forcibly occupied by the refugees and he was forced out of his house and native village Jahangirpur along with other Muslims. He began to reside at Damurhada in the district of Kusthia in Eastern Pakistan. According to him he came for some time to India in 1951, but this is not admitted. Any how, the visit must have been a short one. The Passport Act (XXXIV of 1920) came into operation on the 15th October, 1952. This purported to amend the existing Passport Rules and made it compulsory to have a passport for persons belonging to Pakistan, if they intend to come to India. On the 21st February, 1953 the petitioner took out a Pakistani passport. On the 3rd March, 1953 he applied for a visa for visit to India. In that application he stated that he was a Pakistan citizen. The application form requires the date of migration to be given and this has been as the 16th Chaitra, 1362 B. S. The application was verified by a declaration stating that the statements and information given therein were true to the best of the petitioner's knowledge and also there was a declaration that he was aware of the fact that any false statement therein would make the visa liable to cancellation and subject him to penalty prescribed by law. On the 16th March, 1953 on the strength of this application, an Indian visa was granted. It is thereafter that the petitioner came to India with the intent of staying there. On the 15th September, 1954 he purported to surrender his passport to the Pakistan authorities in India and made an affidavit before the Magistrate, Krishnagar, Nadia, to the effect that he was a citizen of the Indian Union, that he had gone to East Pakistan for temporary shelter and that he would never claim Pakistan citizenship and so forth. This affidavit is dated the 5th September, 1954. On the 21st September, 1954 the petitioner made an application for the issue of an Indian passport, to be accurate, an India-Pakistan passport. In that application he declared that he was a citizen of India and that he wished to visit Pakistan for seeing his daughter at Goswami Durgapur, Kusthia, in Eastern Pakistan. On the 27th October, 1954 on the strength of this application and the declarations contained therein, verified by a solemn declaration that all facts stated therein were true, an Indian passport was issued to him on the 27th October, 1954, On the 13th December, 1954 the assistant sub-inspector. Kotwalli Police Station, District Nadia, seized the passport. On the 21st December, 1954 the passport was cancelled. On the 29th November, 1954 the Additional District Magistrate of Nadia lodged a complaint before the S. D. O. Sadar Krishnagar, against the petitioner for having committed an offence under section 182 of the Indian Penal Code. It is alleged that several statements made in the application for the issue of an India-Pakistan passport made by the petitioner on the 21st September, 1954 were false. The statements are that the petitioner had not voluntarily acquired the citizenship of any foreign State, that he had not otherwise lost Indian citizenship and that he had not previously held or applied for any passport whatever for himself. Section 182 of the Indian Penal Code lays down that whoever gives to any public servant any information which he knows or believes to be false, intending thereby to cause, or knowing it to be likely that he will thereby cause, such public servant to do or omit anything which such public servant ought not to do or omit if the true state of facts respecting which such information is given were known by him, etc. shall be punished with imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both. It is after this complaint was filed that the petitioner came up to this court and this Rule was issued on the 16th February, 1955 calling upon the opposite parties to show cause why a writ in the nature of certiorari should not be issued and why the order of seizure of the passport should not be cancelled and why the passport of the petitioner should not be restored. It will be noted that in the Rule as issued, there is no relief asked for to set aside and//or quash the criminal proceedings. The Rule is entirely directed towards quashing the seizure, although in the petition there is a prayer for an interim order for stay of the prosecution, coming to the application for the passport, a copy whereof is annexed to the petition and marked as annexure "c," we find that the application itself contains a clause, namely, clause 17, the relevant part thereof being as follows:

(2.) THE argument that has been made before mc by Mr. Dutt is however based on the assumption that the petitioner continues to be a citizen of India and therefore the passport has been validly issued to him and could not be impounded and that the criminal prosecution is misconceived. Mr. Dutt argued that his client is a citizen of India as a result of the provisions of Article 5 of the Constitution. He was born in the territory of India, his parents were born in the territory of India and he has been ordinarily resident in the territory of India ever since his birth. Consequently, under Article 10 the petitioner must be deemed to be a citizen. The first difficulty that the petitioner is faced with, is his own application for in Indian visa made in March, 1953, wherein he has solemnly declared that he was on that date a Pakistan citizen. Mr. Dutt argues that a passport is no conclusive evidence of the citizenship of any person. He has quoted several Indian and American authorities. It is laid down there that a passport is by itself not a conclusive evidence of the nationality of a person but it is taken as evidence because of the comity of nations and as a matter of fact, and according to international practice. It may not be conclusive evidence, but a man's admission which he makes upon a solemn declaration cannot be lightly brushed aside and it must constitute prima-facie evidence of his nationality. To take a lenient view of the solemn declaration in this case would mean putting a premium upon a deliberate falsehood made, because the person making it states that at the time he made it, it suited his convenience. This is a position which it is impossible to countenance in a court of equity. Besides the admission being there, a heavy onus lies upon the petitioner to disprove the fact, and that can only be done upon the faking of evidence, and I do not see how that can be done in this jurisdiction. If the statement made in the petition of March, 1953 and the solemn declaration made therein be true, then indeed the criminal action that has been commenced was inevitable. In that action, the petitioner might adduce evidence about his nationality, but I do not see how and in what way it is possible for me to consider such evidence in this application. Since however there has been an argument raised, I shall briefly deal with the law upon the subject.

(3.) REFERENCE has been made to Article 5 of the Constitution. Undoubtedly, so far as Article 5 is concerned, the petitioner would be an Indian citizen. But, as has been held in the Supreme Court case to which I shall presently refer, Article 5 is subject to the provisions of Article 7. That Article runs as follows: