HARI KHAN Vs. STATE

JUDGEMENT

(1.) THIS is a criminal revision filed by Hari Khan and his son Hakim Maeos against the judgment of learned Sessions Judge, Bharatpur, dated October 25, 1967, maintaining their conviction under Section 14 read with Section 3 of the Indian Foreigners Act, 1946, as also under Rule 6 read with Rule 3 of the Indian Passport Rules 1950, made by Sub -Divisional Magistrate, Deeg.

(2.) THE prosecution story is that the accused Hari Khan left India sometime in the year 1947 for Pakistan He came back to India with his son Hakim with passport No SSC -008225, dated August 20, 1956 and visa No. 156050, dated December 26, 1960. His entry into India was recorded at the Check -post -Riilway Station, Amritsar, on February 8, 1961 vide entry No. 2/247 -C. Residential permit No. DSB/BPR/RP/51, dated February 10, 1961, was issued to him from the office of the Superintendent of Police, Bharatpur, as required under para 7 of the Foreigners Order, 1948, authorising him to stay in the village Faraska, Police Station, Nagar, upto May 6, 1961. Before the expiry of this period both the petitioners left India for Pakistan on April 7, 1961: vide exit entry dated April 7, 1961, made at the Amritsar Railway Station, Check post, on the back of Ex. P. L, Later on, in September, 1964, Hari Khari and his son Hakim were found living in village Faraska, within the jurisdiction of the Police Station, Nagar, District Bharatpur. They had no valid travel documents with them. They were prosecuted in the court of Sub -Divisional Magistrate, Deeg, on a challan put up by the Police. They were convicted under the said provisions of laws and were sentenced to undergo 7 days simple imprisonment and to pay a fine of Rs. 25/ -, each, in default of payment of fine to further suffer simple imprisonment for a period of 3 days. It was further directed that the petitioners, should be deported to Pakistan. An appeal is filed against the above judgment in the court of learned Sessions Judge Bharatpur, but the same was dismissed. Hence this revision.

(3.) COMING now to the facts of the present case it is obvious that the petitioner Hari Khan voluntarily entered the territory of Pakistan in the course of partition of India during the year 1947 His case, therefore, is not governed by Section 9 of the Indian Citizenship Act, 1955, as that section would apply only with respect to the persons who migrated from India after January 26, 1950, and not with respect to those persons who migrated prior to the promulgation of the Constitution. In that view of the matter, the petitioners cannot be heard to say that their case should be determined in accordance with the provisions of Section 9 of the Citizenship Act In other words, judicial courts are empowered to decide the question whether the petitioners are Indian citizens or foreigners, and Section 9 of the Citizenship Act, 1955, will not stand as a bar to it.