SYED MAHBOOB IMAM Vs. STATE OF BIHAR

JUDGEMENT

(1.) - In this application, the petitioner Syed Mahboob Imam has prayed for quashing the entire prosecution initiated against, the petitioner in Phulwari Sharif P.S. Case No. 39 of 1995 for the offences punishable under Section 14 of the Foreigners Act. The Sub-Inspector of Police. Special Branch lodged the First Information Report on 8th February, 1995 before the Officer in-charge, Phulwart Sharif Police Station alleging therein, inter alia, that the accused petitioner having the passport of Pakistan bearing No. D-849161 dated 27th July, 1968 which was valid up to 26tui of July, 1993. The accused petitioner came to India on 16th August, 1988 and since then he is residing in Village-Isopur in contravention pf the provisions of the Foreigners Act. The learned Counsel for the petitioner submits that the Government of Bihar, Home, Special Department permitted the accused-petitioner to stay in India up to 18th of March, 1992. Meanwhile, the petitioner had filed two petitions, one for extension of the date and another for grant of Indian citizenship. However, the period of the Visa expired on 26th of July, 1993. It is, further submitted that the Government of India had not passed any order on the aforesaid two petitions filed by the petitioner. It is, further alleged that on 8th July, 1998, petitioner filed a petition for the renewal of the passport but even after lapse of one year, no order has been passed either rejecting and/or allowing the prayer of the petitioner for grant of extension and/or revival of the passport.

(2.) LEARNED Counsel for the petitioner has challenged the very initiation of the proceeding against the petitioner for alleged Violations of the provisions of the Foreigners Act on the ground that the petitioner was born in India on 20th of December. 1953 but because of some unavoidable reason he went to Pakistan in 1967. Again, he came back to India on 16-9-1988 on Pakistani passport. It is, further stated that after he came back from Pakistan he married in India and out of the wedlock one son is born. It is further stated that the petitioner has filed a petition for extension of the period of Visa and also filed a petition for grant of citizenship. Ultimately it appears that the Government of Bihar by its Memo No. Cl IPV 10108/ 88/100/C dated 14-7-1995 extended the overstay of the petitioner from 18-3-1993 to 18-3-1996. It is submitted that though a petition - from of citizenship has been filed during the period but no order has been passed either rejecting the petition or granting the citizenship to the petitioner and in anticipation of the order he overstayed in India. As stated above, the petitioner has filed a petition for renewal of his licence but till date no order has been passed either renewing the passport or rejecting the same. It is submitted that since the period of overstay has been regularsed by the Government itself the petitioner cannot be prosecuted for the same period of overstaying in India. It is further, submitted that since the petitioner has already applied for the grant of Indian citizenship and unless and until the specific order is passed on the request made by the petitioner he cannot be prosecuted for violation of the provisions of the Foreigners Act. In support of his contention learned Counsel has relied upon a decision on the case of State of U.P. V. Rahmatullah wherein in almost similar situation it, has been held that till the Central Government determines the question of the Pakistani Nattonality he cannot be treated as a foreigner and no penal action can be initiated. The question of grant of Indian citizenship of the petitioner is still sub-judiced before the Government of India. Further the petitioner has been allowed to stay in India till 1996 he cannot be prosecuted for such offences, and. in my View the very initiation of the:proceeding initiated against the petitioner for the alleged offence is an abuse of the process of the Court. However ultimately, if the Government of India refused to grant citizenship in that event the petitioner will immediately leave India without any further delay failing which he shall be liable to be prosecuted under the appropriate provisions of the Foreigners Act. Accordingly the prosecution initiated against the petitioner is quashed and consequently the application is allowed. In the facts and circumstances of the case, it is desirable that the Government of India must consider the prayer of the petitioner for grant of Citizenship in accordance with law as early as possible preferably within three months from the date of receipt/ production of a copy of this order. Application allowed.