HABIJUDDIN AND ORS. Vs. THE STATE

JUDGEMENT

(1.) THESE four references arise out of four Criminal cases Nos. C. R. 68, 70, 66 and 67 of 1959 in which the first class Magistrate, Kamalpur sentenced the 4 accused persons (one in each case) under Rule 6(a) of the Indian. Passport Rules and sentenced each of them to a fine of Rs. 25/ -. As the facts and the prosecution evidence to the four cases are more or less similar and as the Sessions Judge has made the references on the same ground in all the cases, I am dealing with them in one common order.

(2.) THE two constables Sona Sinha and Nepal Sarker arrested the 4 persons concerned in these references on 5 -6 -1959 at Muktabil on the ground that they were Pakistanis and produced them before Shri B.B. Paul the Officer -in -charge of Kamalpur Police station. The said officer is said to have interrogated them and found that they were Pakistanis who could not produce any valid travel document; He submitted reports for the prosecution of the 4 persons under Rule 6(a) of the Indian Passport Rules and the Sub -divisional Magistrate, Kamalpur took cognizance of the four cases on 5 -6 -1959 itself. In all the four cases, the plea of the accused persons was that they were Indian nationals living in India for very many years and that they have not contravened any provisions of the Indian Passport Rules. They examined very many witnesses in each of the cases to support their defence that they were Indian nationals.

(3.) THE learned Sessions Judge was not satisfied with the way in which, the cases were dealt with by the Magistrate. According to him, the arrests of the 4 persons by the two constables were without authority as Section 4 of the Indian Passport Act provided that the power of arrest cannot be exercised by a Police Officer below the rank of a Sub -Inspector. Apart from that, the Sessions Judge found that the Magistrate had thrown the burden in the cases on the accused to prove their innocence. The Sessions Judge felt that the prosecution had to prove that the accused had entered India from outside after the introduction of the Passport Rules in 1952 and he found that the prosecution had not proved this in any of the cases. He has therefore made these four references for setting aside the conviction and sentence in the four cases.