MOHD IQBAL ALIM UDDIN Vs. STATE

JUDGEMENT

(1.) THIS is a petition for quashing a charge framed by Shri M. L. Grover, Sub-Divisional Magistrate, against the petitioner for contravention of the provisions of paragraph 7 (2) of the Foreigners Order, 1948, punishable under Section 14 of the Foreigners Act 1946. The charge was as follows:-" that you, on or about the 5th day of October, 1961 being a foreigner and a Pakistan national and having entered India on the authority of Pakistani Passport via Attari Road Immigration check post on 31-5-1956 and, having subsequently obtained extension of stay in India up to 3u-11-1956 from the Delhi Administration, Delhi and thereafter did not return to Pakistan and continued unauthorised stay in India in contravention of Rule 7 (2) of the Foreigners Order 1948 as amended up to date whereby you were required to obtain residential permit on or before 5-1-60 from the Registration Officer, Delhi and in contravention of that you continued staying in Delhi without obtaining the requisite residential permit on or before 5-1-1960. and were apprehended on 5-10-1961 without possessing any residential permit from the Registration Officer, Delhi and thereby contravened the provisions of Section 7 (2) of the Foreigners Act as amended up to date which is punishable under Section 14 of the Foreigners Act 1946 and within my cognizance. And I hereby direct that you be tried by me on the said charge. " The learned Additional Sessions Judge rejected the revision petition and that is why the petitioner has ccme up to this Court.

(2.) MR. Anthony, the learned counsel for the petitioner, submits that the charge deserves to be quashed for various reasons. He has invited my attention to the report sub-milled to the Magistrate under Section 173 of the Code of Criminal Procedure on the basis of which the charge has been framed. It is stated therein that the accused had migrated to Pakistan from India in 1947. He began to reside permanently at Lahore and started doing business of buying and selling cattle. He adopted Pakistani nationality. As a Pakistan citizen he obtained a passport dated 27th March 1954 valid up to 26th March 1959 from the Pakistan Government. On 20th April 1954 he submitted an application to the Indian Mission at Lahore for securing a visa for a temporary visit to his parents in India. Along with his application he submitted the said passport. He was given a visa dated 27th April 1954 for stay in Delhi. He entered mala from Pakistan through Attari on 2nd May 1954. After coming to Delhi, he made various applications for the extension of his visa and he was granted extension up to 2nd April 1955. He left India for Pakistan on 25th March 1955. On the second occasion he again came to India on a temporary visit after obtaining from the Indian Mission in Pakistan a visa dated 14th May 1955. He came to Delhi via Attari on 5th July 1955. He made applications on various dates in the years 1955 and 1956 for the extension of his Visa. He was granted extensions. He left on 21st May 1956. On the third occasion he obtained a visa dated 25th May 1956 from the Indian High Commission for coming to Delhi to see his parents. He came to India from Pakistan on 31st May 1956. He submitted three applications for the extension of his visa at Deihi and the same were granted up to 30th, November 1956. The Delhi Administration returned his Pakistani passport to him on 13th November 1956 in order to enable him to return to Pakistan. He did not go but continued to stay in India without authority after the expiry of his visa. On 11th July 1957 he was arrested under rules 3 and 6 of the Indian Passport Rules, 1950 for the offence that he had entered India from Pakistan without a passport. He was challenged but he was acquitted by Shri Baldev Raj Magistrate 1st Class Delhi, on 31st July 1957. After that he did not go to Pakistan and continued to stay in India, in 1959 an amendment was made in paragraph 7 (2) of the Foreigners Order of 1948 according to which all foreigners were required to obtain residential permits by 5th January1960. The petitioner should have obtained a residential permit but he did not do so. He was arrested on 5th October 1961. In the visa applications which he had submitted to the Indian Mission in Pakistan he had voluntarily stated that he migrated from India to Pakistan in 1947. He was consequently liable for contravention of paragraph 7 of the Foreigners Order punishable under Section 14 of the Foreigners Act

(3.) MR. Anthony contends that in one of the documents-which had been produced along with the report under section 173 the date of birth of the petitioner is given to be 1933. He was, therefore, a minor when he is said to have migrated to Pakistan in 1947. It is further pointed out that the whole tenor of the report shows-that the parents of the petitioner were Indian citizens and reside in Delhi. If he was a minor at the time he migrated to Pakistan he could not change his nationality which was Indian, it is further submitted that if, as has been alleged he has adopted Pakistani nationality when originally he was an Indian citizen, that is a matter which cannot be decided by the Courts and it is the Central Government alone that can decide whether he has lost his Indian citizenship by virtue of having adopted Pakistani nationality. On the first point my attention has been invited to my own decision in Mohd. Rafiq v. Administration of Delhi Civil Writ No. 25-D of 1959, D/- 17-11-1959 (Punj) in which reference has been made to various text books wherein it is stated that when a person is not sui juris his domicile cannot for the time being be changed at all. In Cheshire's. Conflict of Law it is stated at page 184 that before reaching full age an infant is utterly incapable of acquiring by his own act an independent Domicile of choice and he is powerless to alter his civil status. It has been urged before me that even if it be assumed that the petitioner went to Pakistan in 1947, his domicile remained Indian and as his parents were Indian, he was a citizen of India within the meaning of Article 5 of the Constitution. A similar contention was advanced in the above case decided by me and I observed: