# April 5776 SUPltEME COU:lt'l' ltEPOltTS (1962] FIDA HUSSAIN v. STATE OF UTTAR PRADESH

- **Citation:** [1962] 1 S.C.R. 776
- **Court:** Supreme Court of India
- **Decided:** 1960-03-09
- **Case number:** Criminal Appeal No. 129 of 1960
- **Bench:** B. P. Sinha, s. K. DAS, A. K. Sarkar, K. C. Das Gupta, N. Rajagopala Ayyangar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/april-5776-suplteme-cou-lt-l-ltepoltts-1962-fida-hussain-v-state-of-uttar-2086
- **Pages:** 4

## Headnote

Foreigner-Pakistani entering India in r953-Whether a
foreigner-Foreigners Act, r946 (Jr of r946), s. z (a),
The appellant was born in India before the partition. He
left for Pakistan and returned lo India in 1953 on a Pakistani
passport and Intlian visa. He did not return to Pakistan before
the expiry of the period for which he was permitted to stay in
India under the visa. He was convicted for a breach of paragraph 7 of the Foreigners Order, 1948, which required every
"foreigner" entering India to depart from India before the
expiry of the period during which he was authorised to remain
in India.
Held, that the appellant was not a foreigner on the date
of his entry into India and his conviction was bad. On the
relevant date the appellant was a natural born British subject
withins. r(1)(a) of the British Nationality and Status of Aliens
Act, 1914, and consequently was not a foreigner as defined in
s. z(a) of the Foreigners Act, 1946, as it then stood.
CRIMINAL
APPELLATE
JURISDICTION:
Criminal
Appeal No. 129 of 1960.
Appeal by special leave from the judgment and
order dated March 9, 1960, of the Allahabad High
Court in Criminal Revision No. 697 of 1959.
N aunit Lal, for the appellant.
•
G. G. Mathur and G. P. Lal, for the respondent.
1961. April 5.
The Judgment of the Court was
delivered by
SARKAR, J.-The appellant who had earlier left
India, returned on a passport granted by the Government of Pakistan on May 16, 1953. He had a visa
endorsed on his passport by the Indian authorities
permitting him to stay in India for three months and
this permission was later extended upto November 15,
1953. He did not, however, return to Pakistan within
that date upon which he was convicted under s. 14 of
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1 s.c.R. StJPREME COURT REPORTS
777
the Foreigners Act, 1946, by a Sub-Divisional Magistrate on March 14, 1959, and sentenced to rigorous
imprisonment for one year. His appeal to a Sessions
Judge was dismissed and the High Court at Allahabad,
on being moved in revision, refused to interfere with
the order of the Sessions Judge. This appeal is against
the judgment of the High Court.
The appellant had been convicted for breach of
paragraph 7 of the Foreigners Order of 1948, issued
under s. 3 of the Foreigners Act.
That paragraph
requires that every foreigner entering India on the
authority of a visa issued in pursuance of the Indian
Passport Act, 1920, shall obtain from the appropriate
authority a permit indicating the period during which
he is authorised to remain in India and shall, unless
that period is extended, depart from India before its
expiry. As earlier stated, the visa on the appellant's
passport showed that he had permission to stay in
India till November 15, 1953 but he stayed on after
that date. Hence the prosecution.
It is contended on behalf of the appellant that he
could not be convicted of a breach of paragraph 7 of
the Foreigners Order for that paragraph applies to a
"foreigner" entering India on the authority of a visa
issued in pursuance of the Indian Passport Act and
overstaying the period for which he is permitted to
stay in India. It is contended that the foreigner contemplated in this paragraph is a person who was a
foreigner on the date of his entry into India. The
appellant says that on that date he was not a foreigner and, therefore, the provisions of the paragraph
do not apply to him. This contention of the appellant
is plainly correct. The paragraph contemplates a
foreigner entering India, and therefore, a person who
at the date of the entry was a foreigner.
Now, the word "foreigner" in paragraph 7 has the
same meaning as that word has in the Foreigners Act.
The word "foreigner" is defined in that Act in s. 2(a) .
That definition has changed from time to time, but
we are concerned with the definition as it stood in
98
r96r
Fida f--1_ussain
v.
S!afc of
Vitar r•radesh
Sarkar ].
r961
Fida liussain
v.
State of
Uttar Pradesh
Sarliar ],
778
SUPREME COURT REPORT

## Text

April 5776
SUPltEME COU:lt'l' ltEPOltTS
(1962]
FIDA HUSSAIN
v.
STATE OF UTTAR PRADESH
(B. P. SINHA, c. J., s. K. DAS, A. K. SARKAR,
K. C. DAS GUPTA and
N. RAJAGOPALA AYYANGAR, JJ.)
Foreigner-Pakistani entering India in r953-Whether a
foreigner-Foreigners Act, r946 (Jr of r946), s. z (a),
The appellant was born in India before the partition. He
left for Pakistan and returned lo India in 1953 on a Pakistani
passport and Intlian visa. He did not return to Pakistan before
the expiry of the period for which he was permitted to stay in
India under the visa. He was convicted for a breach of paragraph 7 of the Foreigners Order, 1948, which required every
"foreigner" entering India to depart from India before the
expiry of the period during which he was authorised to remain
in India.
Held, that the appellant was not a foreigner on the date
of his entry into India and his conviction was bad. On the
relevant date the appellant was a natural born British subject
withins. r(1)(a) of the British Nationality and Status of Aliens
Act, 1914, and consequently was not a foreigner as defined in
s. z(a) of the Foreigners Act, 1946, as it then stood.
CRIMINAL
APPELLATE
JURISDICTION:
Criminal
Appeal No. 129 of 1960.
Appeal by special leave from the judgment and
order dated March 9, 1960, of the Allahabad High
Court in Criminal Revision No. 697 of 1959.
N aunit Lal, for the appellant.
•
G. G. Mathur and G. P. Lal, for the respondent.
1961. April 5.
The Judgment of the Court was
delivered by
SARKAR, J.-The appellant who had earlier left
India, returned on a passport granted by the Government of Pakistan on May 16, 1953. He had a visa
endorsed on his passport by the Indian authorities
permitting him to stay in India for three months and
this permission was later extended upto November 15,
1953. He did not, however, return to Pakistan within
that date upon which he was convicted under s. 14 of
t •
I
~
I
· 1
l I
I
~
~ •
I
C'.
'•,
~
.
1
..
' '
I
'
•
•
I
1 s.c.R. StJPREME COURT REPORTS
777
the Foreigners Act, 1946, by a Sub-Divisional Magistrate on March 14, 1959, and sentenced to rigorous
imprisonment for one year. His appeal to a Sessions
Judge was dismissed and the High Court at Allahabad,
on being moved in revision, refused to interfere with
the order of the Sessions Judge. This appeal is against
the judgment of the High Court.
The appellant had been convicted for breach of
paragraph 7 of the Foreigners Order of 1948, issued
under s. 3 of the Foreigners Act.
That paragraph
requires that every foreigner entering India on the
authority of a visa issued in pursuance of the Indian
Passport Act, 1920, shall obtain from the appropriate
authority a permit indicating the period during which
he is authorised to remain in India and shall, unless
that period is extended, depart from India before its
expiry. As earlier stated, the visa on the appellant's
passport showed that he had permission to stay in
India till November 15, 1953 but he stayed on after
that date. Hence the prosecution.
It is contended on behalf of the appellant that he
could not be convicted of a breach of paragraph 7 of
the Foreigners Order for that paragraph applies to a
"foreigner" entering India on the authority of a visa
issued in pursuance of the Indian Passport Act and
overstaying the period for which he is permitted to
stay in India. It is contended that the foreigner contemplated in this paragraph is a person who was a
foreigner on the date of his entry into India. The
appellant says that on that date he was not a foreigner and, therefore, the provisions of the paragraph
do not apply to him. This contention of the appellant
is plainly correct. The paragraph contemplates a
foreigner entering India, and therefore, a person who
at the date of the entry was a foreigner.
Now, the word "foreigner" in paragraph 7 has the
same meaning as that word has in the Foreigners Act.
The word "foreigner" is defined in that Act in s. 2(a) .
That definition has changed from time to time, but
we are concerned with the definition as it stood in
98
r96r
Fida f--1_ussain
v.
S!afc of
Vitar r•radesh
Sarkar ].
r961
Fida liussain
v.
State of
Uttar Pradesh
Sarliar ],
778
SUPREME COURT REPORTS
[1962]
1953 when the appellant entered India, which was in
these terms:
,,c
.
''
h
1ore1gner means a person w o ........ .
(1) is not a natural-born British subject as defined
in suli-sections (1) and (2) of Section 1 of the British
Nationality and Status of Aliens Act, 1914, or
(2) has not been granted a certificate of naturalisation as a British subject under any law for the
time being in force in British India, or
(3) is not a citizen of India.
The appellant's contention is that he was not a foreigner because he came within cl. (I) of the definition as
he was a natural-born British subject withins. 1(1),
(a) of the British Nationality and Status of Aliens
Act, 1914. Now that provision is in these terms:
S. 1. (1) The following persons shall be deemed to
be natural-born British subjects, namely,-
( a) any person born within His Majesty's Dominion and allegiance.
That the appellant was born at Allahabad at a time
when it was within his Britannic Majesty's Dominion
is not in dispute. That being so, we think that it must
be held that at the date of his entry into India the
appellant was a natural-born British subject and,
therefore, not a foreigner.
He could not have committed a breach of paragraph 7 of the Foreigners
Order.
In the result we allow the appeal and set aside the
conviction of the appellant and sentence passed on
him.
Before leaving this case we think it right to make a
few more observations. The definition of a foreigner
in the ]foreigners Act was amended with effect from
January 19, 1957, by Act 11 of 1957. The definition
since that date is as follows: " "foreigner" means a
person who is not a citizen of India". Under s. 3(2),
(c) of the Foreigners Act, the Central Government has
power to provide by order made by it that a foreigner
shall not remain in India. We wish to make it clear
that we have said nothing as to the effect of the
amended definition of a "foreigner" on the status of the
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1 S.C.R. SUPREME COURT REPORTS
779
appellant. No question as to the effect of the amended definition on the appellant's status fell for our decision in this case for we were only concerned with his
status in 1953. We would also point out that no order
appears to have been made concerning the appellant
under s. 3(2)(c) and we are not to be understood as
deciding auy question as to whether such an order
could or could not have been made against the appellant.
Appeal allowed.
AKBAR KHAN ALAM KHAN AND ANOTHER
v.
THE UNION OF INDIA AND OTHERS
(B. P. SINHA, c. J., s. K. DAS, A. K. SARKAR,
K. C. DAS GUPTA and N. RAJAGOPALA AYYANGAR, JJ.)
Citizenship-Suit for declaration of rights as Indian Citizens-
]urisdiction of Civil Court-Citizenship Act, r955 (57 of r955),
s. 9(2).
The only question that a civil court is precluded from
determining under s. 9(2) of the Citizenship Act, 1955, read with
r. 30 of the Rules framed under the Act is the question as to
whether, \Vhen or how any person has acquired the citizenship
of another country. They are not prevented from determining
other questions concerning the nationality of a person.
Where, therefore, a suit brought for a declaration that the
appellants were Indian Citizens, where they the1nselves had
raised the question of acquisition of foreign citizenship, \Vas
resisted on the ground that they had never been Indian Citizens, and the courts below dismissed the suit in its entirety,
Held, that the courts below were in error in holding that
the suit was barred in its entirety bys. 9(2) of the Act.
They should have decided the question as to whether the
appellants had ever been citizens ot India and, if the finding
was in their favour, should have stayed the suit till the Central Governrnent had decided whether such citizenship was
renounced and if the finding was against the appellants dismissed the suit.
Fida Hussain
v.
State of
U ttar Pradesh
Sarkar ].
April 5.