Supreme Court Upholds State Appeal and Convicts Respondent Under Foreigners Act, 1946 for Overstaying Visa. Person Who Migrated to Pakistan Post-Partition and Opted for Pakistani Service Deemed Non-Citizen Under Article 7 of Constitution Despite Article 5 Birthright.

Criminal appeal against acquittal in a prosecution under Section 14 of the Foreigners Act, 1946 read with Clause 7 of the Foreigners Order, 1948 for overstaying a visa.

The State of Assam appealed to the Supreme Court seeking to set aside the High Court's acquittal and restore the conviction and sentence of the respondent for being a foreigner who overstayed in India without a permit.

The respondent entered India on a visa, overstayed beyond the permitted period without obtaining an extension, and was detected and prosecuted under the Foreigners Act and Foreigners Order.

The Additional District Magistrate, Silchar convicted the respondent and sentenced him to six months' rigorous imprisonment with a direction for deportation. The Sessions Judge, Silchar upheld the conviction and sentence. The High Court of Assam and Nagaland in Criminal Revision No. 73 of 1968 reversed the conviction and acquitted the respondent. The State appealed to the Supreme Court.

Whether the respondent was a foreigner under Section 2(a) of the Foreigners Act, 1946 as it stood before the 1957 amendment. Whether Article 7 of the Constitution of India applied to deem the respondent not a citizen of India despite satisfying Article 5. Whether the High Court erred in relying on Fida Hussain v. U.P. without considering the respondent's migration to Pakistan. Whether 'migrated' in Article 7 included voluntary permanent movement to Pakistan for service. Whether overstaying the visa period without extension violated Clause 7 of the Foreigners Order, 1948.

The respondent contended that he was born in India, owned house and lands in India, was a natural born British subject, and thus a citizen under Article 5 of the Constitution; therefore he was not a foreigner under the pre-1957 definition of the Foreigners Act. The respondent relied on Fida Hussain v. U.P. and argued that before the 1957 amendment, a natural born British subject was excluded from the definition of foreigner, and he was not required to obtain a permit under Clause 7. The respondent's counsel also relied on the Registration of Foreigners (Exemption) Order, 1957, but the Court held this was irrelevant to Clause 7's requirement against overstaying. The State argued that the respondent had opted for Pakistan service, obtained release from Indian service, went to Pakistan, obtained Pakistani passport and visas declaring Pakistani citizenship, and thus had migrated permanently, attracting Article 7 and making him a foreigner.

Article 7 of the Constitution of India overrides Article 5. A person who migrated from the territory of India to the territory included in Pakistan after March 1, 1947, is deemed not to be a citizen of India, notwithstanding compliance with Article 5. The word 'migrated' in Article 7 has a wider connotation, covering voluntary movement with the intention of permanent residence, though not involuntary or short-term movement. The court, not the Central Government, has jurisdiction to determine whether a person is a foreigner under the Foreigners Act when Article 7 is invoked. A person who opts for Pakistan service, obtains Pakistani passport and visas declaring Pakistani citizenship, and stays there permanently is deemed non-citizen and is a foreigner under Section 2(a) of the Foreigners Act as it stood before the 1957 amendment. Overstaying a visa without extension violates Clause 7 of the Foreigners Order.

The crucial point in the present case, was whether the Respondent had migrated to Pakistan between 1947 and 1950. If he did, then notwithstanding his complying with the requirement of Art. 5, his case would fall under Art. 7 and he would be deemed not to be a citizen even, on the date of his entry in India in 1955. Considering the facts of the present case, viz., the option exercised by the respondent for Pakistan service, his having secured release from Indian service, as a constable, his going to Pakistan and obtaining service there as a peon, his staying there for a long period; his obtaining Pakistani passport and visas declaring therein that he had acquired Pakistani citizenship and domicile etc; there could be no doubt that he had gone to Pakistan permanently. His case thus fell within Art. 7 and therefore, at his entry in India in 1955 he was a person who was deemed not to be a citizen of India. By overstaying here without the required extension the respondent clearly violated the provisions of cl. 7(1) and (3) of the Foreigners’ Order, 1948 in view of our conclusion that he was a person who was deemed not to be a citizen of this country, and therefore, a foreigner even under the definition of a foreigner in sec. 2 of the Foreigners Act before it was amended in 1957. In Fida Hussain v. U.P., the question of the applicability of Art. 7 did not arise and was not considered presumably because it was not contended that Fida Hussain had migrated to the territory which fell within Pakistan between March 1, 1947 and January 26, 1950.

The respondent was prosecuted before the Additional District Magistrate, Silchar, who convicted him under Section 14 of the Foreigners Act, 1946 read with Clause 7 of the Foreigners Order, 1948, and sentenced him to six months' rigorous imprisonment with a direction for deportation after sentence. The Sessions Judge, Silchar, upheld the conviction and sentence. In Criminal Revision No. 73 of 1968, the High Court of Assam and Nagaland reversed the conviction and acquitted the respondent, relying on Fida Hussain v. U.P. The State appealed to the Supreme Court in Criminal Appeal No. 176 of 1969.

• Foreigners Act, 1946: Section 14, Section 2(a)
• Foreigners Order, 1948: Clause 7(1), Clause 7(3)
• Constitution of India: Article 5, Article 7
• Citizenship Act, 1955:
• British Nationality and Status of Aliens Act, 1914: Section 1(1), Section 1(2)
• Registration of Foreigners (Exemption) Order, 1957: