# ABDUL RAHIM ISMAIL RAHIMTOOLA v. THE STATE OF BOMBAY

- **Citation:** [1960] 1 S.C.R. 285
- **Court:** Supreme Court of India
- **Decided:** 1957-07-04
- **Case number:** CRIMINAL APPELLATE JtrRISDICTION: Criminal Appeal No. 182 of 1957
- **Bench:** JAFElt IMAM, J. L. Kapur
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/abdul-rahim-ismail-rahimtoola-v-the-state-of-bombay-1756
- **Pages:** 6

## Headnote

Criminal Trial-Entry into India without passport-Conviction
- Interpretation of statute and rules-Reference to constitutional
Bench, if and when necessary-Constitution of India, Art. z45(3)-
-Indian Passport Rules, z950, rr. 3 and 4-Indian Passport Act
(34 of z9zo), s. 3.
The appellant an Indian citizen entered India without a
passport after and on the basis of the decision of the Supreme
Court. The appellant's contention was that s. 3 of the Indian
Passport Rules, 1950, were ultra vires the Constitution and that
on a proper interpretation, the provisions of the section and rules
did not apply to an Indian citizen ; and that when a case involves
a constitutional question, it should be referred to a Bench of five
Judges, described as "Constitution Bench."
Held: Where there is a binding decision of the Constitution
Bench of this Court on the question of law as to the interpretation
of the Constitution, and if the same question is raised in another
matter then it cannot be said that any substantial question of law
arises regarding the interpretation of the Constitution and the
matter need not be referred to a Constitution Bench.
On. a reasonable interpretation of s. 3 of the Act and rr. 3 and
4 of the rules, which say that "persons" entering India shall be
in possession of a valid passport, there can be no manner of doubt
that the provisions apply to all persons entering India including
Indian citizen.
The Act of entry into India without a passport was in
contravention of the Rules and the appellant was rightly
convicted.
Ebrahim Vazir Mavat v. The State of Bombay, [1954] S.C.R.
933, followed.
-
CRIMINAL
APPELLATE
JtrRISDICTION:
Criminal
Appeal No. 182 of 1957.
Appeal from the judgment and order dated July 4,
1957, of the Bombay High Court, in Criminal Application for Revision No. 278 of 1956, arising out of the
judgment and order dated the 3rd January, 1956, of
the Presidency Magistrate 16
Court,
Esplanade,
Bombay, in Criminal Case No. 1913/P 6f 1955.
0. N. Srivastava and J. B. Dadachanji, for the appellant.
G. 0. Mathur and R. H. Dhebar, for the respondent.
I959
Mayx4.
286
SUPREME COlJRT REPORTS
[1960(1)]
r959
1959. May 14. The Judgment of the Court was
delivered by
,
Abdul Rahim
Ismail Rahimtoola
IMAM J.-The appellant was convicted under r. 6(a)
v.
of the Indian Passport Rules, 1950, hereinafter referred
The State of
to as the Rules, made under s. 3 of the Indian PassBombay
port Act, (34of1920), hereinafter referred to as the Act,
Imani ].
and was sentenced to pay a fine of Rs. 100.
The High
Court in exercising its revisional jurisdiction upheld
the conviction but reduced the sentence to a fine of
Rs. 25. It granted a certificate to the appellant that
the case was a fit one for appeal to this Court.
It is beyond dispute now that the appellant is a
citizen of India. Admittedly he entered the territories
of India without a passport. The sole question for
determination is whether his act in so entering the
territories of India amounted to an offence punishable
under r. 6(a) of the Rules.
The Act was passed in 1920 and has been the subject
of amendment and modification tnereafter. Its preamble states " whereas it is expedient to take power to
require passports of persons entering India, it is hereby
enacted as follows."
"Passport " has been defined as
a passport for the time being in force issued or renewed
by the prescribed authority and satisfying the conditions prescribed relating to the class of passport to
which it belongs. Section 3 states :
(1) The Central Government may make rules requiring that persons entering India shall be in possession of passports, and for all matters ancillary or
incidental tci that purpose.
(2) Without prejudice to the generality of the forego'ing power such rules may-
(a) prohibit the entry into India or any part
thereof of any person who has not in his
possession a passport issued to him ;
(b) prescribe the authorities by whom passports
must have been issued or renewed, and the
conditions with w

## Text

S.C.R.
SUPREME COURT REPORTS
ABDUL RAHIM ISMAIL RAHIMTOOLA
v.
THE STATE OF BOMBAY
(JAFElt IMAM and J. L. KAPUR, JJ.)
Criminal Trial-Entry into India without passport-Conviction
- Interpretation of statute and rules-Reference to constitutional
Bench, if and when necessary-Constitution of India, Art. z45(3)-
-Indian Passport Rules, z950, rr. 3 and 4-Indian Passport Act
(34 of z9zo), s. 3.
The appellant an Indian citizen entered India without a
passport after and on the basis of the decision of the Supreme
Court. The appellant's contention was that s. 3 of the Indian
Passport Rules, 1950, were ultra vires the Constitution and that
on a proper interpretation, the provisions of the section and rules
did not apply to an Indian citizen ; and that when a case involves
a constitutional question, it should be referred to a Bench of five
Judges, described as "Constitution Bench."
Held: Where there is a binding decision of the Constitution
Bench of this Court on the question of law as to the interpretation
of the Constitution, and if the same question is raised in another
matter then it cannot be said that any substantial question of law
arises regarding the interpretation of the Constitution and the
matter need not be referred to a Constitution Bench.
On. a reasonable interpretation of s. 3 of the Act and rr. 3 and
4 of the rules, which say that "persons" entering India shall be
in possession of a valid passport, there can be no manner of doubt
that the provisions apply to all persons entering India including
Indian citizen.
The Act of entry into India without a passport was in
contravention of the Rules and the appellant was rightly
convicted.
Ebrahim Vazir Mavat v. The State of Bombay, [1954] S.C.R.
933, followed.
-
CRIMINAL
APPELLATE
JtrRISDICTION:
Criminal
Appeal No. 182 of 1957.
Appeal from the judgment and order dated July 4,
1957, of the Bombay High Court, in Criminal Application for Revision No. 278 of 1956, arising out of the
judgment and order dated the 3rd January, 1956, of
the Presidency Magistrate 16
Court,
Esplanade,
Bombay, in Criminal Case No. 1913/P 6f 1955.
0. N. Srivastava and J. B. Dadachanji, for the appellant.
G. 0. Mathur and R. H. Dhebar, for the respondent.
I959
Mayx4.
286
SUPREME COlJRT REPORTS
[1960(1)]
r959
1959. May 14. The Judgment of the Court was
delivered by
,
Abdul Rahim
Ismail Rahimtoola
IMAM J.-The appellant was convicted under r. 6(a)
v.
of the Indian Passport Rules, 1950, hereinafter referred
The State of
to as the Rules, made under s. 3 of the Indian PassBombay
port Act, (34of1920), hereinafter referred to as the Act,
Imani ].
and was sentenced to pay a fine of Rs. 100.
The High
Court in exercising its revisional jurisdiction upheld
the conviction but reduced the sentence to a fine of
Rs. 25. It granted a certificate to the appellant that
the case was a fit one for appeal to this Court.
It is beyond dispute now that the appellant is a
citizen of India. Admittedly he entered the territories
of India without a passport. The sole question for
determination is whether his act in so entering the
territories of India amounted to an offence punishable
under r. 6(a) of the Rules.
The Act was passed in 1920 and has been the subject
of amendment and modification tnereafter. Its preamble states " whereas it is expedient to take power to
require passports of persons entering India, it is hereby
enacted as follows."
"Passport " has been defined as
a passport for the time being in force issued or renewed
by the prescribed authority and satisfying the conditions prescribed relating to the class of passport to
which it belongs. Section 3 states :
(1) The Central Government may make rules requiring that persons entering India shall be in possession of passports, and for all matters ancillary or
incidental tci that purpose.
(2) Without prejudice to the generality of the forego'ing power such rules may-
(a) prohibit the entry into India or any part
thereof of any person who has not in his
possession a passport issued to him ;
(b) prescribe the authorities by whom passports
must have been issued or renewed, and the
conditions with which they must comply, for
the purposes of this Act; and
(c) provide for the exemption, either absolutely
or on :111y condition, of any person or class of
persons from any provision of such rules.
S.C.li.
SUPREME COUH.T HEPOliTS
287
(3) Rules made under this section may provide that
1959
any contravention.thereof or of any order issued
Abdul Rahim
under the authority of any such rule shall be Ismail Rahimtoola
punishable with imprisonment for a term which
v.
may extend to three months, or with fine or with
The State of
both.
Bombay
(4) All rules made under this section shall be published in the Official Gazette and shall thereupon
have effect as if enacted in this Act.
Rule 3 of the Rules states:
"Save as provided in rule 4, no person, proceeding
from any place outside India, shall enter, or
attempt to enter, India by water, lan_d or air unless
he is in possession of a valid passport conforming
to the conditions prescribed in rule 5."
Rule 4 specifies the persons who shall be exempted
from the provisions of r. 3. Clause (b) of r. 4 exempts
members o'f the Naval, Military or Air Forces of India
on duty, and members of the family of any such
person when accompanying such person to India on a
Government transport. Clause (c) exempts persons
domiciled in India proceeding from any of the :French
establishments in India (other than Pondicherry. in
Kairakal) or from any of the Portuguese establishments
_in India or Pakistan. Clause (f) exempts persons
domiciled in India entering India by land or by air
over the Napalese or Tibetan ]frontier. Clause (h)
exempts bonafide Mohamedan pilgrims returning from
Jeddah or Basra and clause (i) exempts other persons
or classes of persons specified by general or special
orders of the Central Government.
The date of the appellant's entry into India is not
known. He was certainly arrested on February 26,
1955, and it is his case that he entered India sometime
after the decision of this Court in the case of Ebrahim
Vazir Mavat v. The State of Bombay.(1)
The judgment
of this Court in tha~ case was delivered on February 15,
1954. On that basis the appellant entered India sometime after February 15, 1954 and before :February 26,
1955. It is unnecessary to specify in great detail the
(r) [1954] S.C.R. 933·
Imam].
288
SUPREME COURT REPORTS [1960(1)]
r959
moyements of the appellant between November 19,
.
1948, when he went to Karachi for the first time, and
Abdul R~h•m his arrest on February 26, 1955, as his movements
I smao/ Rahimtoo/a d .
th.
. d
t
l
t .
d
. .
v.
urmg
is per10
are no re evan m
etermmmg
Th• state of
whether the appellant has committed an offence punish.
Bombay
able under r. 6(a) of the Rules. The case must be
Imam],
'
decidlld on the footing that sometime before his arrest
on February 26, 1955, the appellant entered India
without a passport.
Two contentions were raised on behalf of the appellant (l) that r. 3 of the Rules and s. 3 of the Act were
'l.dtra vires the Constitution in so far as they purported
to affect the right of an Indian citizen to enter India
without a passport and (2) that on a proper interpretation of the provisions of s. 3 of the Act and r. 3 of
the Rules, these provisions did not apply to an Indian
citizen. They applied only to non-Indian citizens.
As to the "first contention it was urged that s. 3 of
the Act and r. 3 of the Rules in so far as they purported to relate to an Indian citizen were ultra vires the
Constitution, as they offended against the provisions
of Art. 19(l)(d) and (e).
Article 19(l)(d) confers the
fundamental right on all Indian citizens " to move
freely throughout the territory of India" and Art. 19(1)
(e) "to reside and settle in any part of the territory
of India." This fundamental right, however, is subject
to reasonable restrictions under clause (5) of Art. 19.
In the case of Ebrahim Vazir Mavat v. The State of
Bombay (supra)(') the majority judgment of this Court
held that an Indian citizen visiting Pakistan for any
purpose whatsoever and returning to India may be
required to produce a permit or a passport as the case
may be before he can be allowed to enter India, and
this requirement may well be regarded as a proper
restriction upon entry. This Court, however, held that
it was quite a different matter to .say that if he enters
India without a permit he may on conviction for such
offence be ordered to be removed from India. It was
the order directing his removal from India which was
held by this Court to be tantamount to taking away
his fundamental l"ight guaranteed under Art. 19(1) (c),
(1) (1954] S,C,R. 933.
(
s.c.R.
SUPREME COURT REPORTS
289
"to reside a.nd settle in a.ny pa.rt of' the territoPy of
r959
~ndia.". It~ clear, therefore, ~ha.t so fa.r a.s this.Court
Abdul Rahim'
is concerned it ha.s a.lrea.dy dE?Cided .. tha.t to reqmre an Ismail Rahimtoola
Indian citizen to "produce a passport. before. he ca.n be
v.
allowed to enter India. may be regarded as· a proper
The Stat• of
restriction upon entering India.
This decision is
Bombay
binding on us and we must follow the decision of this
Court in the case referred to. It was, however, urged
that as a constitutional question has been raised this
IIJ&tter cannot be decided by judges less tha.n five in
number. Therefore, the case should be referred to
what is described as the Constitution Bench. Article
145(3) · 0f the Constitution . states that the minimum
number of Judges who are to ·sit for the purpose of·
deciding any case involving a substantial question oflaw
a.s to the interpretation of the. Constitution or for the
purpose of hearing a.ny reference under Article 143 shall
be five. It is clear that no substantial question of law
as to the interpretation of the ·Constitution arises in
the present case as the very question raised has been
decided by a Bench of this Court consistjng of five
Judges. As . the question raised before us has been
already decided by this Court it c~nnot be said that
any substantial question of law arises regarding the
· interpretation of the Constitution.
As to the second submissi(>n made we have no hesitation in ~aying that the words used in s. 3 of the Act
and rr. 3 and 4 of the Rules make it quite clear that
they apply to every person including an Indian citizen.
Under s. 3(1) of the Act the word" Persons" has been
stated without any qualification. Under s. 3(2)(a) the
words employed are "any person" and in i'. 3 the
words employed are "no person".
Cl~use (b) of r. 4
obviously applies to Indian citizens but those mentioned in that clause have been specifically exempted
from the operation of r. 3. Cle.use (h) of r. 4(1) can
apply to Indian citizens who are by religion Mohomedan. They have been exempted. · Therefore, on a
reasonable interpretation of s. 3 of the Act and rr. 3
and 4 of the Rules there can be no manner of doubt
that these provisions apply to all persons includini
Indian citizens.
~1
Imam].
290
SUPREME COURT REPORTS [1960(1)]
r959
In our opinion, there oan be no manner of doubt
that the appellant's entry into India without a passAbdul Rahim
t
·
t
t"
f
3 f th R 1
d
1
.1 R h" 1 1 por was m con raven ion o r.
o
e
u es an
smat
a imooa
.
1
v.
therefore pumshable under r. 6(a) at>.d the appel ant
Tiu siatenf
was rightly convicted.
The appeal is accordingly
Bombay
dismiBBed.
Imam].
r959
May I4.
Appeal dismissed.
S. GANGOLI
v.
THE STATE OF' UTTAR PRADESH
(and connected appeal)
(B. P. SINHA, P. B. GAJENDRAGADKAR and
K. N. WANCHOO, JJ.)
Prevention of Corruption-Railway Servant under the Government-If a public servant under the Act-Prevention of Corruption
Act, I947 (II of I947), s. 2-Indian Railways Act, I890 (9 of I890),
s. I37(4)-lndian Penal Code (45 of I86o), s. 2I.
The two appellants, who were railway servants under the
Government, were put up on trial under s. l20B of the Indian
Penal Code and s. 5(2) read with s. 5(1}(c} and 5(1)(d) of the
Prevention of Corruption Act, 1947. The Sessions Judge who
tried the case found, in agreement with the unanimous opinion of
the assessors, the appellants guilty and sentenced appellant No. l
to rigorous imprisonment for three years and appellant No. 2 to
rigorous imprisonment for two years. The High Court on appeal
affirmed the order of conviction and sentences passed on the
appellants. It was contended on behalf of the appellants in this
court that the order of conviction and the sentences passed on
them were illegal as they were not public servants under s. 2 of
the Prevention of Corruption Act, 1947.
Held, that it was apparent from the words "for any of the
purposes of that Code " used by s. 137(4) of the Indian Railways
Act, 1890, as it stood prior to its amendment in 1955. that the bar
created by that sub-section applied, and was confined, to the
purposes of the Indian Penal Code and could not be extended
beyond its provisions. In respect of offences other than .those
under the Code, therefore, neither sub-s. (1) of s. 137, which
applied only to offences under Ch. IX of the Code, nor sub-s .. (4)
of that section could apply and the question whether a railway
servant charged with offences under the Prevention of Corruption
Act, 1947, was a public servant or not must be decided under s. z
of that Act.