# FATEH MOHD, SON OF NATHU v. DELHI ADMINISTRATION

- **Citation:** [1963] Supp. 2 S.C.R. 560
- **Court:** Supreme Court of India
- **Decided:** 1961-05-26
- **Case number:** Criminal Appeal No. 121 of 1961
- **Bench:** S. J. Imam, K. SuBBA RAo, N. Rajagopaj, A Ayyangar, J. R. Mudholkar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/fateh-mohd-son-of-nathu-v-delhi-administration-2788
- **Pages:** 10

## Headnote

Foreigna-De.finition-A1t1end>ne11t,
Effect of-Offence
committed hy fordgner aftrr n111en,fo><nt-On1t• of proofFol'eigners hi, 194G, (•11 of I.?4fi), ""· .1, 74-Tlte For,ignu•
fo10.• (Amen!l11mit) Act, 19•i7 (11of1.957), s . . ? (a)-Cmi.,titution of b!dia, Ari. 5.
The appellant entered India on May 9, 1956, on a
Pakistani passport.
He had a visa permitting him to stay in
India for three months.
He had to leave India on or before
August 8, 1956. As he failed to do so, a notice under s. 3 (2)
of the Foreigners .i\ct, 1946, as amended in 19:l7, was served on
him on November 19, 1959, by the Delhi Administration. As
he did not comply with the requirements of the notice, he was
prosecuted under s. 14 of the Foreigners Act and convicted.
His appeal and revision were dismissed.
He came to this court
by specir I leave.
His contention was that he was not a foreigner within the meaning of the definition of a foreigner as it
existed at the time he entered India, and he was not a foreigner
even under the amended definition.
}/Pld, that the appellant was a forcjgner under the amended definition and he had committed a bre:Lch of the order served
on him after the ·11nen<lcd definition of foreigner came into
force.
In disobeying the directions given to him by the Delhi
Administration, he had conunitted an offence within the meaning of s. 14 of the Foreigners Act. Before the amendment of the
definition in 1957, a person born
within
His
Majesty's
Dominion and owing allegiance was a citizen of India, but after
the amendment inJanuary, 1957 a person who was not a citizen
of India became a foreigner.
After that date, if all order was
issued by the
Central Government in exercise of powers
conferred on it under s. 3 of the Act, it was the duty of such a
foreigner to obey that order and if he did not do so, he committed an offence within the m•aning of s. 14 of the Act. The
appellant was certainly not a foreigner when he entered India,
but in view of the amendment of the definition, he became a
foreigner after January 19, 1957. He could not be convicted for
.an offence for an act done by him before the amendment on the
2 s.c.R.
StJl'REME COURT REPORTS
661
basis that he was a foreigner, but in the present case he had
been punished for not complying with an order passed after the
amendment.
The burden of proving that he was not a foreigner \Vas on
the appellant an<l he had failed to discharge that bunle11.
Tl1c
legality of an acl done by a person 1nust be judgc<l on the basis
of the existing law at the thne the act is done.
Uni<m of India v. G!taus JJ!ohammad, [l9G2J I S.C.R. 714
followed
Fida Hussain v. State of Uttar Pradcslt 1.1962]
I S.C.R. 776, distinguished.
CmMINAL APl'ELLA'rE .JumsDI<.J'l'IUN : Criminal
Appeal No. 121 of 1961.
Appeal by special leave from the judgment and
order dated May 26, 1961 of the Punjab High Court,
Circuit Bench at Delhi in
Criminal
Revision
No. 159-D of 1961.
Nur·iul-d·in Ahrned and N1mnit Lal, for the
appellant.
V. JJ.
.}/,,,/uijcrn
and
l'. D.
1lfenon
for
R. N. Saol!they, for the respondent.
H.162. November :l7.
The Judgment
of the
Court was delivered by
SUBBA RAO, J.~This appeal by special leave is
directed against the order of the Punjab High Court
dismissing the Revision petition filed against.the order
of the Additional Sessions Judge, Delhi.
The appellant entered India on May !J, l!J5ti,
on a Pakistan passport dated February 11, l!l56.
He
had a visa endorsed on the said passport permit tinghim to stay in India for three months.
Under that
visa he had to leave India ou or before August 8,
l!J56i As he failed to do so, a notice under s. 3 (2)
of the Foreigners Act, ]!)Jfi, as amended in I fJ!'i7,
hereinafter called the Act, was served on him on
F•leh Mfllrd
Son •f JValhl'
v.
Dtllii Aliminslratian
Sul:ia ll•o, I.
1962
Fateh Mohd
Srua of Naehu
••
D1lhi .fdministration
Subba Rao, J.
562 SUPREME COURT REPORTS [l!J<i3] SUPP.
November 19, 1959, by the Delhi Administration.
By that notice he was asked to report his presenc

## Text

1962
p...,..,,, 27.
.5 60 SUPREME COURT REPORTS [1963] SUPP .
FATEH MOHD, SON OF NATHU
v.
DELHI ADMINISTRATION
(S. J. IMAM, K. SuBBA RAo, N. RAJAGOPAJ,A
AYYANGAR and J. R. MUDHOLKAR, JJ.)
Foreigna-De.finition-A1t1end>ne11t,
Effect of-Offence
committed hy fordgner aftrr n111en,fo><nt-On1t• of proofFol'eigners hi, 194G, (•11 of I.?4fi), ""· .1, 74-Tlte For,ignu•
fo10.• (Amen!l11mit) Act, 19•i7 (11of1.957), s . . ? (a)-Cmi.,titution of b!dia, Ari. 5.
The appellant entered India on May 9, 1956, on a
Pakistani passport.
He had a visa permitting him to stay in
India for three months.
He had to leave India on or before
August 8, 1956. As he failed to do so, a notice under s. 3 (2)
of the Foreigners .i\ct, 1946, as amended in 19:l7, was served on
him on November 19, 1959, by the Delhi Administration. As
he did not comply with the requirements of the notice, he was
prosecuted under s. 14 of the Foreigners Act and convicted.
His appeal and revision were dismissed.
He came to this court
by specir I leave.
His contention was that he was not a foreigner within the meaning of the definition of a foreigner as it
existed at the time he entered India, and he was not a foreigner
even under the amended definition.
}/Pld, that the appellant was a forcjgner under the amended definition and he had committed a bre:Lch of the order served
on him after the ·11nen<lcd definition of foreigner came into
force.
In disobeying the directions given to him by the Delhi
Administration, he had conunitted an offence within the meaning of s. 14 of the Foreigners Act. Before the amendment of the
definition in 1957, a person born
within
His
Majesty's
Dominion and owing allegiance was a citizen of India, but after
the amendment inJanuary, 1957 a person who was not a citizen
of India became a foreigner.
After that date, if all order was
issued by the
Central Government in exercise of powers
conferred on it under s. 3 of the Act, it was the duty of such a
foreigner to obey that order and if he did not do so, he committed an offence within the m•aning of s. 14 of the Act. The
appellant was certainly not a foreigner when he entered India,
but in view of the amendment of the definition, he became a
foreigner after January 19, 1957. He could not be convicted for
.an offence for an act done by him before the amendment on the
2 s.c.R.
StJl'REME COURT REPORTS
661
basis that he was a foreigner, but in the present case he had
been punished for not complying with an order passed after the
amendment.
The burden of proving that he was not a foreigner \Vas on
the appellant an<l he had failed to discharge that bunle11.
Tl1c
legality of an acl done by a person 1nust be judgc<l on the basis
of the existing law at the thne the act is done.
Uni<m of India v. G!taus JJ!ohammad, [l9G2J I S.C.R. 714
followed
Fida Hussain v. State of Uttar Pradcslt 1.1962]
I S.C.R. 776, distinguished.
CmMINAL APl'ELLA'rE .JumsDI<.J'l'IUN : Criminal
Appeal No. 121 of 1961.
Appeal by special leave from the judgment and
order dated May 26, 1961 of the Punjab High Court,
Circuit Bench at Delhi in
Criminal
Revision
No. 159-D of 1961.
Nur·iul-d·in Ahrned and N1mnit Lal, for the
appellant.
V. JJ.
.}/,,,/uijcrn
and
l'. D.
1lfenon
for
R. N. Saol!they, for the respondent.
H.162. November :l7.
The Judgment
of the
Court was delivered by
SUBBA RAO, J.~This appeal by special leave is
directed against the order of the Punjab High Court
dismissing the Revision petition filed against.the order
of the Additional Sessions Judge, Delhi.
The appellant entered India on May !J, l!J5ti,
on a Pakistan passport dated February 11, l!l56.
He
had a visa endorsed on the said passport permit tinghim to stay in India for three months.
Under that
visa he had to leave India ou or before August 8,
l!J56i As he failed to do so, a notice under s. 3 (2)
of the Foreigners Act, ]!)Jfi, as amended in I fJ!'i7,
hereinafter called the Act, was served on him on
F•leh Mfllrd
Son •f JValhl'
v.
Dtllii Aliminslratian
Sul:ia ll•o, I.
1962
Fateh Mohd
Srua of Naehu
••
D1lhi .fdministration
Subba Rao, J.
562 SUPREME COURT REPORTS [l!J<i3] SUPP.
November 19, 1959, by the Delhi Administration.
By that notice he was asked to report his presence
personally to the Foreigners Regional Registration
Officer, Taj
Barracks,
Janpath,
New
Delhi,
between II A. M. to 12 noon daily and enter into a
personal bond iri the amount of Rs. 5,000/· with two
sureties in the amount of Rs. 10,000/- each for the
due observance of the restriction
imposed on his
movements.
The appellant did not comply with the
requirements of the notice. Therefore he was prosecuted under s. 14 of the Act for violating the
provisions of s. 3 in the Court of the Sub-Divisional
Magistrate, Delhi. The appellant pleaded in defence
that the said notice was not served on him and that
he was a citizen of India. The learned Magistrate
held on the evidence that the said notice was served
on him and that he was not a citizen oflndia but a
foreigner within the meaning of that Act and that he
had committed an offence, inasmuch as he did not
comply with the provisions of the said notice. On
those findings he couvicted him under s. J.l of the
Act and sentenced him to six months' rigorous imprisonment. On appeal the Sessions Judge, Delhi
confirmed the findings of the Magistrate and dismissed the appeal filed by him.
He held that the
burden was upon the appellant to prove that he was
not a foreigner and that he' had failed to discharge
the same.
He also rejected the plea of the appellant
viz. that as on the date he entered India, he was not a
foreigner within the meaning of the definition of
'foreigner' as it then stood he could not be convicted,
on the ground that he was prosecuted for an offence
committed after the definition was amended. The
High Court confirmed the conviction of the appellant
and the sentence passed against him.
Hence the
appeal.
The learned counsel !vlr. Nur-ud-Din appearing for the appellant raised before us the following two points: (1) the appellant was not a foreigner
2 S.C.R.
SUPREME COURT REPORTS
563
within the meaning of the definition of a foreigner
as existed at the time he entered India, i. e. on
May 9, 1956, and therefore the High Court went
wrong in convicting him, and (2) the appellant is not
a foreigner even under the amended definition.
To appreciate the first contention it will be
convenient to read the relevant provisions of the
Foreigners Act, 1946 :-
Section 3:
"The Central Government may by order
make provision, either generally or with respect
to all foreigners or with respect to any parti·
cular foreigner or any prescribed class or description of foreigner, for prohibiting, regulating or restricting the entry of foreigners into
India or their departure therefrom or their
presence or continued presence therein.
(2)
In particular and without prejudice
to the generality of the foregoing power, orders
mad.e under this section may provide that the
foreigner ........ .
(a} x
x
x
(b) x
x
x
(c) x
x
x
(d) x
x
x
(c} shall comply with such conditions as may
be prescribed or spccified-
(i} requiring him 10 reside in a particular
place;
(ii) imposing
any
restrictions on his
movements;
1962
Fateh M•hi
s .. o/Nathu
v.
Dtllai Administrali.,1
i962
Fateh Mohd
Son "J .Nothu
v.
Delhi AJministrotion
S•bbaRaa, J.
564 SUPREME COURT REPORTS [l!J63] SUPP.
(iii), (iv), (v), (vi), (vii), (viii), (ix), (x)
( f)
shall enter into a bond with or without
sureties for the due observance of, or as an
altemative to the enforcement of any or
all prescribed or specified restrictions or
conditions:
The definition of a foreigner as it stood in 1953 was :
'Foreigner' means a person who is not a natural
born British subject as defined in sub-sections l & 2
of s. 1 of the British Nationality and Status of
Aliens Act, 1914.
Section 1 ( 1) of the British Nationality and
Status of Aliens Act, 1914, is in these terms:
'The following persons shall be deemed to be
natural-born British subjects, namely, -
(a)
any person born within His Majesty's
Dominion and allegiance.'
The definition of a foreigner was substituted by the
Foreigners Laws
(Amendment) Act, 1057 (II of
1957) S. 2 (a). This amendment came into force
with effect from January l!J, 1957. Under the said
definition, 'foreigner' means a person who is not a
citizen of India. Section 14 is : 'If any person
coatravenes the provisions of this Act or of any order
made thereunder, or any direction given in pursuance of this Act or such order, he shall be punished with imprisonment for a term which may extend
to five years and shall also be liable to fine; and if
such person has entered into a bond in pursuanc~ of
clause (f) of Sub-s. (2) of .k. 3, his bond· shall be
forefeited; and any person bound thereby shall pay
the penalty thereof, or show cause to the satisfaction
of the convicting Court why such penalty should
not be paid.'
2 S.C.R.
SUPREME COURT REPORTS
565
The l(ist of the foregoing provisions relevant
to the present inquiry may be stated thus : Under
the definition of a foreigner as it stood in the Act
in 1953 before the amendment of 1957, any person
born within His Majesty's Dominion and allegiance
was a citizen of India but after the amending Act II
of 1957 which came into effect from January 19, 1957,
a person who is not a citizen of India is a foreigner.
After that date
if an order is issued by the
Central Government in exercise of powers conferred
on it under s. 3 of the Act directing a foreigner so
rlefined and prescribing certain conditions for his
stay, it is the duty of such a foreigner to obey
the said order. If he did not, he would be committing an offence within the meaning of s. 14 of the
Act.
In the light of the sai'd provisions let us look
at the facts of the present case.
As aforesaid the
appellant entered India in 1956 on a Pakistan
passport, the visa endorsed on it enabled him to
stay in India till August 8, 1956. The Delhi Administration made an order and served on him on
November 19, 1959, imposing the restrictions on his
stay. Admittedly the appellant did not comply
with the said restrictions and therefore he committed
an offence within the meaning of s. 14 of the Act.
It is contended that as the appellant was not a
foreigner at the time he made his entry into India,
he could not be convicted on the basis he was a
foreigner within the meaning of the definition of a
foreigner as subsequently
amended. There is a
fallacy underlying in this· argument. The appellant
was certainly not a foreigner when he entered India
under the definition of a foreigner as it then stood.
In view of the ·amendment of the definition he
became a foreigner after January 19, 1\)57. He could
not be convicted for an offence for an act done by
him before the amendment on the basis he Wiiii a
1961
Fatth Mohd
Son of Nathu
v.
JJelhi Administration
Subba R(l()J ).
1962
Fateh Aloha
Snn of .l\'at/11,
••
Dr/hi . .fdm·ini.rtr11tio11
Suhba Rao, J.
566 SUPREME COURT REPORTS [1963] SUPP.
foreigner ; for instance an act done by him such as
his entry into India or his non-compliance with the
conditions of an order issued on him before the
amendment on the foot that he was a foreigner. But
the offence for which he is now charged is an act
done by him in derogation of an order issued to him
after the amendment. On the elate whrn the Delhi
ndministration served on him the notice imposing
certain restrictions and directing him to comply with
certain conditions for his stay he wa~ a foreigner
within the meaning of arr.ended definition. On the
basis of the existing law he committed an offence
and it will be futile for him to contend that he was
not a foreigner under the origin a 1 definition. The
legality of the act done by him must be judged on
the basis of the existing law as the act was done
subsequent to the amendment. Reliance is placed
upon the decision of this court in Pidri Thtssain v.
State of Fttar l'radesh (1) in support of the con·
tention that as the appellant was not a foreigner
when he made the entry, he could not be convicted
on the ground he was a foreigner.
But the facts of
that case are different from those in the present
appeal and that decision is clearly distinguishable.
There a person was born at Allahabad at the time
when it was his Majesty's Dominion.
He had left
India to Pakistan but returned on a passport grant·
cd 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 exlc11dcd up lo November 19;);1, Under Paragraph 7 of
the
Fnrl'i~n<'rs Order l!HS issued under s. :1 of the
Forl'ig11crs- Act, every foreingcr entering India on the
authority of a visa 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 the appellant stayed
.after November 15, 1953, without permission given
01 [t9o2J 1 1.c.a. 776.
2 S.C.R.
SUPREME COURT REPORTS
567
under that order, he was prosecuted for breach of
the said order.
It would be seen f1om the said facts
that the appellant therein was prosecuted for an
offence committed by him before the Amending Act
of 1957 came into force on January 19, ]!)57.
This
court on the said facts held that the appellant there·
in could not he convicted for the breach of Paragraph 7 of the :Foreigners Order as he not being a
foreigner at that time couhl not have committed a
breach thereof, but clearly this decision cannot
apply to an offence committed by a person who falls
within the amended definition of ·foreigner', after
the Amending Act came into force.
Indeed this
court in express terms left open that question at page
1523 "No question as to the effect of the amended
definition on the appellant's status !di for our
decision in this case, for we were only concerned with
his statm in l!l53. W c would also point out that
no order appears to have been made concerning the
appellant under s. 3(2) (c) and we arc not to be
understood as deciding any question as to whether
such an order could o·r could not have been made
against the appellant."
What has been left open
in that decision is to be considered in the present
case.
The appellant who is a foreigner under the
amended definition has committed a breach of an
order served on him after the amended definition of
a foreigner came to hold the field.
The appellant
therefore in disobeying the directions given to him
by the Delhi
Administration has committed an
offence within the meaning of s.14 of the Act.
Even sn it is contended that the appellant is an
Indian citizen and therefore
i~ not a foreigner within
the meaning of the amended definition of a foreigner
under the Act.
Some of the relevant provisions of
the Constitution and the Citizenship Act 57of1955
may conveni~ntly "be extrac•ed.
Article 5 of the
Constitution says :-
"At the comrr).encement of this Constitμ tion,
1962
Fateh Mohd
Son of Nath11
v.
Delhi Adminislralion
Subha Rao, J.
1962
Fatt/1 M•hd
Son of .Nathu
v.
Delhi A.dministratiou
Sr1hba Rao, J,
568 SUPREME COURT REPORTS [1963] SUPP.
every person w)lo has his domicile in the terri·
tory of India and-
( a) who was born in the territory of India; or
(b) either of whose parents was born in the
territory of India; or
( c) who has been ordinarily resident of the
territory of India for not less than five
years immediately preceding such commencemrnt,
shall be a citizen of India."
Section 9 of the Indian Citizenship Act, 1955 is in
thtse terms :-
"If in any case not falling under s. 8 any
question arises with reference to this Act or any
order made or direction given thereunder,
whether any person is or is not a foreigner ......
the onus of proving that such person is not a
foreigner ...... shall,
notwithstanding anything
contained in the Indian Evidence Act, 1872
(1of1872) lie upon such person".
Under Art. 5(a) of the Constitution the appellant
cannot be a citizen of India unless he was born in
the territory of India and had his domicile in the
territory of India at the commencement of the
Constitution. In t)lis case the appellant claimed to
be a citizen under Art. 5(a) of the Constitution. By
reason of s. 9 of the Foreigners' Act whenever a
question arises whether a person is or is not a foreigner, the onus of proving that he is not a foreigner
lies upon him. The burden is therefore upon the
appellant to establish that he is a citizen of India in
the manner claimed by him and therefore he is not
a foreigner. This court in Union of India v. Ghaus
Mohammad (') accepted this legal position and laid
down at page 748 thus :-"It does not seem to have
(I) f1962] 1 S. C.R. 7ff.
•I
JULI
2 S.C.R.
SUPRE!vLE COURT REPORTS
56!)
It,!
been realised that the burden of proving that he was ·
not a foreigner, was on the respondent and appears to.
have placed that burden on the· Union.
This was a
wholly wrong ·approach to the question." Rightly
throwing the onus on the appellant the J\lagistrate
considered the evidence and came to the conclusion
that the appellant had failed to prove that he was a
citizen of India and therefore not a foreigner.
The
learned Additional Sessions Judge after noticing that
the onus was on the appellant considered the evidence
both oral and documentary and came to the conclusion that the appellant had failed to discharge the
onus. If cannot be and indeed is not suggested that
the said finding is vitiated by any error of ·law, but
· it is contended that the Additional Sessions Judge was
not justified in ignoring the evidence of respectable
witnesses who spoke to the fact that the appellant was
born in India and continued to reside in India at the
date of the commencement of the Constitution and
thereafter. The learned Additional· Sessions Judge
as a Judge of fact considered the evidence in the
light of probabilities and _the documentary evidence
and rejected the same as unworthy of credence. The
High Court in revision refused to interfere with that
finding. \Ve do not sec any permissible ground for
interferenc(" with that finding in an appeal underArt. 136 of the Constitution.
•
No other point is raised before its.
'1.'he appeal fails and is dismissed .
1962
Fateh Afohd
Son of ./l."athu
v.
Delhi Administratinn
Subba Rao, J.