STATE OF RAJASTHAN Vs. ALLAH BUX

JUDGEMENT

(1.) THIS appeal on behalf of the State of Rajasthan arises under the following circumstances.

(2.) RESPONDENT Allah Bux was challaned before the City Magistrate, Jodhpur, with the allegations that he was a Pakistani national and he came to Jodhpur on 23rd June, 1956, having obtained Visa category 'c' No. 16081 dated 21st July, 1956, on passport No. 130355 dated 21st July, 1953, and that period of his stay in India was extended from time to time but he stayed in India without any further extension. It was further alleged that notice Ex. P-1 dated 24th December, 1957, was given to the respondent to leave India on or before 1st January, 1958, by the Police Zone officer, Jodhpur; but in spite of such orders he did not leave India. The respondent was arrested on 17th October, 1950, and was thereafter challaned under sec. 14 of the Foreigners Act, 1946 ( Act No. XXXI of 1946, hereinafter called the Act ). The petitioner pleaded not guilty to the charge framed against him under sec. 14 of the Act. In his statement under sec. 342 Cr. P. C. he stated that he was born at Jodhpur and his father had also been born and died in Jodhpur. He was also married at Jodhpur in 1951. He further stated that on hearing the news about the illness of his sister who had been residing in Pakistan, he went to Pakistan without any passport. On her recovery he wanted to come to Jodhpur but he was not allowed to do so without obtaining a passport. Thereafter he obtained a passport No. 130355 dated 21st July, 1953, and visa No. 16981 dated 21st July, 1956. He got extended the time for his stay in India for three months. Thereafter he did not get the period extended but remained at Jodhpur working in a motor workshop. He produced Mehmood D. W. 1 to show that he was born in the year 1930 in Jodhpur and that his father Kasambux resided at Jodhpur. The learned Magistrate, Jodhpur, held that the respondent was a Pak national as he had obtained Pakistani passport and also the visa to enter India and that the mere fact that prior to the obtaining of Pakistani passport, the respondent was an Indian citizen was not sufficient to rebut the presumption that he was Pakistani national arising from the fact that he had obtained Pakistani passport as laid down in R. 30 of the Indian Citizenship Rules, 1956, framed under the Indian Citizenship Act, 1955. I

(3.) ALL these circumstances and irregularities incline us to take the view that it would be proper for us to send the case back for a retrial so that both the prosecution and the accused may have a fair opportunity to plead their respective cases.