MADINA KHATOON Vs. STATE OF BIHAR

JUDGEMENT

(1.) Heard Mr. Dhananjay Kumar, learned counsel for the petitioners and learned counsel for the State.

(2.) The petitioner, while invoking inherent jurisdiction under Section 482 of the Code of Criminal Procedure, has prayed for quashing of the order dated 23.1.1998 passed in G.R. No.640 of 1974, Trial No.672 of 1998 by the Chief Judicial Magistrate, Gopalganj. By the said order, the learned Magistrate had taken cognizance of the offence under Section 14 of the Foreigner Act.

(3.) Learned counsel for the petitioners, while challenging this order, submits that unless the matter relating to citizenship is decided by the Central Government, no proceeding can be initiated against a person for offence under Section 14 of the Foreigner Act. At this very point, he has relied upon a judgment of the Supreme Court (State of U.P. v. Rahmatullah, 1971 AIR(SC) 1382) and also 1991 Cr. Law Journal 2921. Learned counsel for the petitioners has further tried to impress upon the court by referring to several annexures to the petition, which are Annexures 4 to 9A. He submits that Annexure-4 is a khatiyan, which shows that father of the husband of petitioner no.2 was resident of Gopalganj. Similarly, he has referred to several certificates, which have been enclosed as annexures to the petition. He also refers to Annexure-8 to the petition whereby a certificate was granted by Election Officer in favour of petitioner no.1 to show that she was elected as Member Panchayat in the year 2001. Learned counsel for the petitioners further submits that it is true that at the time of partition, husband of the petitioner no.1 was employed in railway and he was posted in East Pakistan and he submits that the husband of petitioner no.1 never accepted the citizenship of Bengladesh and on these grounds, he has made prayer for quashing of order of cognizance. Learned counsel has also informed the court that the husband of the petitioner no.1 is no more and as such criminal case instituted against him, had already abated long time. So far as decision of Honble Supreme Court, which has been relied upon by the petitioner is concerned, I am of the view that in the said case, facts and circumstances was not similar to the present case. In the case of Rahmatullah , he had over stayed in India though he was citizen of Pakistan and in that view of the matter, the judgment was passed in that case. Similarly, the case referred to by learned counsel for the petitioners i.e. 1991 Criminal Law Journal 2921 is concerned, that case was also decided on the point of over stay, which is not the position in the present case.