# OUJAP.AT v. YAKUB (Beg, /.)

- **Citation:** [1974] 2 S.C.R. 572
- **Court:** Supreme Court of India
- **Decided:** 1974
- **Bench:** M. i-f. BEG ANDY. V. CHANDRACHUD
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/oujap-at-v-yakub-beg-6170
- **Pages:** 7

## Headnote

Citi;ens/Jip Act, 1955, Sectioll 9(:!.)-Cmtra( Go:·t.'s deci.•ion 011 wlretlz~r a ptrson
''"' acquired fomi:n citiUIIShip or not-Forerguer ": Art, 1946, S. 14-Ford~:tur's
Ordu 1958 clause 1(iii)-Pfea of tire G_CfUUd_that wrtfrout rlre dett"rminatiotr by t/,.
Central Gou:rnmeul u{s 912} of t~rt ~~~IZ~nsfuP_ Act procud~ngs under _lire Forei_~nrrs
Act incomp~t~11t-Court !Ja:r 110 jurt'sdtcrron elfhtr to arqmt or rom·tct rite arcustd
wit/rout tire prior decision of tire Centro/ Govemmtlll 11/s !1(:!.) of the Citiz<"mlrip Act.,
The respondent was prosecute~ un?er clause 7(iii) of the Forei~ncr's Order,
195S read with Sec. 14 of the Foreosner s Act, 1946 for over stnymg on lndia arter
tbe expiration of the permit. The respondent had entered India on a Pakistani
passport. At the trial, the re.po~dent prodU<Xd evidence to show that he was a
citiztn of India when the Consututron came onto force on 26-1-1950 and never
miuated to Pakistan to obtoin the citizenship of that country. Hy- further stated
that he bad to obtain the Pakistani rassport against IY.IS volition, The respondent further urged that Wllhoul the decision of the Central ao,·cmment u's 9Q)
of the Citi1~nsbip Act as to whether he has acquired Paki~tnni citin:nship or not,
the pro=ution under the Foreigner's Act "'"' mcompetent. The trial Magistr.11e
~cquitted the respondent, holdmg that he had pro1·cd that he wa~ an Indian citizen
who never migr•«<d to Pakrstan. The l·lr~th Court upheld the acquittal as it thought
that the prosecution had not proved the only """' .et up by it namely that the rcspondent was not an Indian citizen on 26-1-1950.
Quashing the char~e and ~ltin~ aside the acquitt:JI,
HELD :(I) The real and deci~ive question to be cnsidcred and decided 11-.s not
whether the respondent possessed lnd•an nationaloty and citizenship on 26·1-19l0
but whether he had lost that nationality at the time when he entered this country
on l'ak"tani passport. Without 11 decision of the Ccntml Government under St<:·
tion 9(2) of the Citin:nship Act on that question, the Criminal Court had no jurisdiction to acquit or convict a rcr>an.
·
...
(IJ) After havin' cXllmined the charec framed, the c:r-.es ~t up by the t"o sides.
the contcnt.ions ad1aDC<d in the trral court, the grounds of aprcal of the Hrch Cou~t
and tho<oe m tile snec••l leave peuuon, v.e thmk that the que~tion res;~rdrn' acqwsr·
tion of foreign cmz.eo~hip by the respondent w~s the decisive question. The respondent had himself rai<oed the pic~ although he ~ave an impression that the prosecution was invitio~: a decision on the legality of the order of acqu•llal without ol>-
t•inin' a prior decision of the Central Government under Sec. 9(2) of the Citiz~n
>hip Act. It wa\ not proper for the pru=utini authorui~ to ha1·e procccUtd .wrlh
a cast 'Oiithout the determrnation of the said question under sec. 11(2) of the Crt11en·
>hip Act. (577 Dl
(11!} In view of the crroneou• procedure adopted on behalf of the State in pressine for a conviction without obtainrna a decision from the
appropriate authority, qua~hioa of the char~e it>Clf is the correct ord<·r. This would Jeare the Sr~te
free to foUow the prorcr pr~dure under law regnrding the acquisition of forctJn
c•tittn~ip by the re,pon<Jcnt and then to prosecute tho re<pondent. (Sn Ill
Stott of 1"dftrn Prad.sh v. AI•Ju/ Kftotlu f 1%2) 1 S.C.R. 737, Ai>dul Sctllo~ vi
Stolt of G:rJnrat A.J.R. l96S S, C. 810 and Akbad/ia/1 v. IJ!fiOII of Indio [196-J
S.C.R. 17Y, fullov.ed.
Ku/othlbnonrmu v. Stott of Krrufa (1966)3 S.C.!{. 706, rtferred to.
ClmttNAt, APPI'I.LATE JJJI\tSmcnoN: Criminal ApJlCal No. 164 of
1970.
Appeal by special leave from the judgment ami order dated the Jr~{
..Cth December, !969 of the Gujarat High Court in Criminal Ap!'C·'
f\:o. 295 of 19Mi.
-·-
D
E
]I
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A
B
c
D
E
F
OUJAP.AT V. YAKUB (Beg, /.)
573
R. H. Dhebar and S. P. Nayar, for the appellant.
A. S. Qureshi, Vimal Dave and Kailash Mehta for the respondent.

## Text

-,~.
' · ·-, ·->·-...--..
572
STATE OF GUJARAT
YAKUB IBRAHIM
D~cember 3, 1973
[M. i-f. BEG ANDY. V. CHANDRACHUD, JJ.J
Citi;ens/Jip Act, 1955, Sectioll 9(:!.)-Cmtra( Go:·t.'s deci.•ion 011 wlretlz~r a ptrson
''"' acquired fomi:n citiUIIShip or not-Forerguer ": Art, 1946, S. 14-Ford~:tur's
Ordu 1958 clause 1(iii)-Pfea of tire G_CfUUd_that wrtfrout rlre dett"rminatiotr by t/,.
Central Gou:rnmeul u{s 912} of t~rt ~~~IZ~nsfuP_ Act procud~ngs under _lire Forei_~nrrs
Act incomp~t~11t-Court !Ja:r 110 jurt'sdtcrron elfhtr to arqmt or rom·tct rite arcustd
wit/rout tire prior decision of tire Centro/ Govemmtlll 11/s !1(:!.) of the Citiz<"mlrip Act.,
The respondent was prosecute~ un?er clause 7(iii) of the Forei~ncr's Order,
195S read with Sec. 14 of the Foreosner s Act, 1946 for over stnymg on lndia arter
tbe expiration of the permit. The respondent had entered India on a Pakistani
passport. At the trial, the re.po~dent prodU<Xd evidence to show that he was a
citiztn of India when the Consututron came onto force on 26-1-1950 and never
miuated to Pakistan to obtoin the citizenship of that country. Hy- further stated
that he bad to obtain the Pakistani rassport against IY.IS volition, The respondent further urged that Wllhoul the decision of the Central ao,·cmment u's 9Q)
of the Citi1~nsbip Act as to whether he has acquired Paki~tnni citin:nship or not,
the pro=ution under the Foreigner's Act "'"' mcompetent. The trial Magistr.11e
~cquitted the respondent, holdmg that he had pro1·cd that he wa~ an Indian citizen
who never migr•«<d to Pakrstan. The l·lr~th Court upheld the acquittal as it thought
that the prosecution had not proved the only """' .et up by it namely that the rcspondent was not an Indian citizen on 26-1-1950.
Quashing the char~e and ~ltin~ aside the acquitt:JI,
HELD :(I) The real and deci~ive question to be cnsidcred and decided 11-.s not
whether the respondent possessed lnd•an nationaloty and citizenship on 26·1-19l0
but whether he had lost that nationality at the time when he entered this country
on l'ak"tani passport. Without 11 decision of the Ccntml Government under St<:·
tion 9(2) of the Citin:nship Act on that question, the Criminal Court had no jurisdiction to acquit or convict a rcr>an.
·
...
(IJ) After havin' cXllmined the charec framed, the c:r-.es ~t up by the t"o sides.
the contcnt.ions ad1aDC<d in the trral court, the grounds of aprcal of the Hrch Cou~t
and tho<oe m tile snec••l leave peuuon, v.e thmk that the que~tion res;~rdrn' acqwsr·
tion of foreign cmz.eo~hip by the respondent w~s the decisive question. The respondent had himself rai<oed the pic~ although he ~ave an impression that the prosecution was invitio~: a decision on the legality of the order of acqu•llal without ol>-
t•inin' a prior decision of the Central Government under Sec. 9(2) of the Citiz~n
>hip Act. It wa\ not proper for the pru=utini authorui~ to ha1·e procccUtd .wrlh
a cast 'Oiithout the determrnation of the said question under sec. 11(2) of the Crt11en·
>hip Act. (577 Dl
(11!} In view of the crroneou• procedure adopted on behalf of the State in pressine for a conviction without obtainrna a decision from the
appropriate authority, qua~hioa of the char~e it>Clf is the correct ord<·r. This would Jeare the Sr~te
free to foUow the prorcr pr~dure under law regnrding the acquisition of forctJn
c•tittn~ip by the re,pon<Jcnt and then to prosecute tho re<pondent. (Sn Ill
Stott of 1"dftrn Prad.sh v. AI•Ju/ Kftotlu f 1%2) 1 S.C.R. 737, Ai>dul Sctllo~ vi
Stolt of G:rJnrat A.J.R. l96S S, C. 810 and Akbad/ia/1 v. IJ!fiOII of Indio [196-J
S.C.R. 17Y, fullov.ed.
Ku/othlbnonrmu v. Stott of Krrufa (1966)3 S.C.!{. 706, rtferred to.
ClmttNAt, APPI'I.LATE JJJI\tSmcnoN: Criminal ApJlCal No. 164 of
1970.
Appeal by special leave from the judgment ami order dated the Jr~{
..Cth December, !969 of the Gujarat High Court in Criminal Ap!'C·'
f\:o. 295 of 19Mi.
-·-
D
E
]I
. . '
A
B
c
D
E
F
OUJAP.AT V. YAKUB (Beg, /.)
573
R. H. Dhebar and S. P. Nayar, for the appellant.
A. S. Qureshi, Vimal Dave and Kailash Mehta for the respondent.
The Judgment of the Court was delivered by
BEo, J.~This is an appeal, by special leave, against the acquittal
of the appellant, from a charge framed on 21·9-1967 as follows:
"That you on or about the 31st day of March 1967 at
about 9 ·30 p.m. were found in State Transport Corporaw
tion Workshop at Naroda in Ahmedabad, and you are a
foreigner and you had come from Pakistan and you had
been permitted to stay in India till 20th September, 1958,
by Assistant Secretary to the Government of Bombay an_d
did not depart from 'India before expiring of that permit
issued to you by No. 19904 dated 6-12-1967 before the date
20th September 1958 and remained in India and thereby you
contravened the privisio:ts of clause 7(iii) of Foreigners Order
1948 and thereby committed an offence punishable under
Section 14 of Foreigners Act 1946 and within my
cognizance".
The above mentioned charge was supported by the statement of.
Mabmadmiya, P. W. 2, Sub Inspector, Special Emergency Braf\cb,
Ahmedabad, showing that the appellant was working in Baroda
Central State Transport Workshop when he was arrested as a conse·
quence of the information that he was a Pakistani national who had
come to India in 1955 on a Pakistani passport. The accused had
produced his Pakistani passport {Ex. 11) dated 8th September, 1955.
The prosecution had also relied upon an application for a visa made:
by the accused to the High· Commissioner for India in Pakistan on
lOth October, 1955, in which he had, inttr alia, stated that he had
migrated from India to Pakistan in 1950. Undoubtedly, the prosecution was handicapped in producing evidence to show when and how
and with what intention the appellant had gone to Pakistan. It could
only show how and when and on what passport he returned to this.
country.
The accused-respondent had produced credible evidence to prove:
that, he was born at Dhandhuka in the State of Gujarat on 15th May.
1936; that, he wus living at Dhandhuka and attended school there untii
G
1952 when he moved t() Ahmedabad with his father· and that he had
gone to ~akist~n in a state of anger while he was' a mi~or, after a
quarrel wtth h1s father who had driven him out of his house. , The·
respondent denied that he had the intention of settling down in Pakistan.
He asser.ted that wi~hin six ~onths of his arrival in Pakistan he regretted havmg left I11d1a and tned to come back to his home. He alleged
that, as· he was unable to come home without a Pakistani passport
H
he ha(l.to app,l~ for an<l get one. The respondent asserted that he wa~
an Inu.an c1t1zen when the Constitution came into force on 26th
January, 1950, and that he had continued to be an Indian citizen there~
·after as 'he had never migrated to Pakistan. His explanations about
l1-\1602Sup.CI!74
574
SUPREME COURT REPORTS
[1974) 2 S.C;R.
the passport and the visa application implied that he had obtained the
A
passport by making false declarations and that the statement in the
visa application, that he had migrated to Pakistan in 1950, was one of
those untrue declarations which had been made only to obtain a pass·
port. Probably he had to show under the law in Pakistan that he had
settled down in Pakistan and become a Pakistani national before obtaining a Pakistani passport.
B
The judicial Magistrate had acquitted the respondent
after
examining the cases set up by the two sides and holding that the
respondent had proved that he was an Indian citizen who had
never, in fact. migrated to Pakistan. In an appeal against the
acquittal the High Court of Gujarat had upheld
th~ acquittal
and confirmed the finding that the appellant was an Indian
citizen when the Constitution came ioto force on 26th January, 1950.
C
It had also held that the appellant was a minor when he visited Pakistan.
Tt had found it unnecessary to record a finding on the question
whether the appellant's visit to Pakistan could be held to be one made
under compulsion or for a specific purpose so as to come within the
class of those exceptional cases mentioned in Kulathil Mammu
v,
The State of Kerala (1) in which a "migration" would not take place
even if the wider test of the term migration were adopted. That
D
wider test would apply to those who had gone to Pakistan in the period
1:1etween lst March, 1947, and the commencement of the Constitution. It has to be remembered that Article 7 of the Constitution was
held, in Kulatlril Mammu's case (supra), to contain an exception to the
operation of Article 5 of the Constitution for conferring citizenship of
India on persons who, at the commencement of the Constitution, had
statisfied the test of Indian domicile.
E
The general principle laid down by Article 5 was that citizenship
followed domicile at the commencement of the Constitotion. But.
:the "migration" as contemplated by Article 7 was held, in Kulathil
Mamnw's case (supra), to have a wider meaning than change ofdomi-
•Cile. Hence, the view of this Court in Smt. Shanno De1•i v. Mangal
Sain (2) was overruled. It has, however, to be remembered that in
}
Kulaihil Mammu's case (supra), where the alleged migrant, who. was
also a minor at the time oft he alleged migration, had gone to Karachi
in 1948 which was before the commencement of the Constitution.
Jn the case before us, the finding . of the Trial Court as well as the
High Court, on the evidence before. them was that th:. appellant had,
as he asserted, gone to Pakistan in 1953-54 which was after the commencement of the Constitution. Hence, the case of the respondent
G
could not fall within the classes to which Article 7 was especially
intended to apply. Article 7 had necessarily to be read with Articles
5 and 6 of the Constitution and not in isolation.
The High Court had come to the conclusion that as the only case
set up by the prosecution was that the respondent had migrated before
H
the 26th January. 1950, it need not consider and decide the question
(1) [19661 3 S.C.R. 706.
(2) [1961) 1 S.C.R. 576.
A
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D
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G
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GOJARAT ·v. YAKOB (Btg, 1.}
575
wnetner he had gone to Pakistan after 26th January, 1950, and
thli~ had voluntarily acquired Pakistaf'!i nationality and lost Indian
citizenship. If, as it rightly held,_it had been proved that the respondent went to Pakistan after 26th January, 1950, Article 5 of the Constitution would still operate in his favour. The High Court rightly
pointed out that, as the respondent was an Indian citizen on the date of
the commencement of the Constitution, entitled to the benefit of article
5 of the Constitution, the further question whether he had lost Indian
citizenship after that date or not, could only be deciiled by the Central
Government as laid down in section 9 of the Indian Citizenship Act.
It acquitted the respondent because it thought that the prosecution·
had not proved the only case set up by it. We have, therefore, to
examine the ·charge framed against the respondent so as to determine
whether the view of the High Court that the only questi01i which need
be considered by it was whether the respondent was an Indian citizen
on 26th Ja'nuary, 1950, was correct.
We find, from the ~harge set out above, that the prosecution case
wa& not confined to the determination of the citizenship of the respondent at the time of the commencement of the Constitution. We
also find that the respondent had himslef raised the question whether,
on the facts set up by him, the prosecution could proceed at all in view
of section 9 of the Citizenshirt Act. The Trial Court had observed :
"The lawyer of the accused argued that under Section
9 of the Citizenship Act 1955 the question whether any
citizen of India had any time between the 26th day of
January, 1950 and the -:ommenceme::-.~ of the Citizenship
Act 195S acquired the citizP.nship of another country was to
be determined by the Central
Government. A court
should not decide whether an Indian citizen had acquired
the citizenship of another COU!ltry. The police prosecutor
argued that as the accused had gone to Pakistan and he
obtained Pakistani Passport the accused· must be held to be
national of Pakistan and so a citizen of Pakistan and so is
foreingner in India and so the accused must be convicted
of the offence ujs. 14 of the Foreigners' Act read with
clause 7{3), rule
(iii) of Foreigners' Order 1948.. The
Court had jurisdiction to decide whether the accused is a
foreigner. If the accused wanted to get it decided that
he is yet citizen of India, the accused should apply tQ · the
Central Government and get decision under section 9(2) of
the Citizenship Act 1955. The Clause (3) of Schedule III
of the Citizenship Rules 1956 provides that the fact that
a citizen of India has obtained on any date a passport
from the Government of any other country shall be conclusive p·oof of his having voluntarily acquired the citizenship of the country before t!tat date
As this accused has
wme from Pakistan to India, the Po!ice Prosecutor argued,
t~e accused should be convicted of the o!fence ufs. 14 of
Foreitners' Act read with clause 7(3) (iii) of Foreigner's
Order".
576
SUPREME COURT REPORTS
[1974] 2 s.c.a.
We also find from the grounds of appeal against the acquittal of the
A
respondent, the appellant's application for. certificate of fitness for
appeal to this Court under Article 134 of tM Constitution, and from
the special leave petition under Article 136 of the Constitution in this
Court, that the prosecution had been inviting a decision on the question whether an order of acquittal could be passed without deciding a
question which fell within the purview of Section 9 of the Indian Citizenship Act.
B
It was not proper for the prosecuting authorities'to have proceeded
with the case against the respondent, when, upon the facts set up by the
reapondent, it became clear that the respondent could not be prosecuted or convicted without a determination under Section 9 of the
Citizenship Act, 1955, that he had voluntarily acquired the citizenship
of Pakistan between 26th January, 1950, and the commencement of
C
. the Citizenship Act on 30th Pecember, 1955. This Court has repeatedly laid down that if such a question arises in the course of a trial,
it must be left for decision by the appropriate authorities. It may be
tbat the rules framed by the Central Government under Section 30,
S\lb. s (2) of the Citizenship Rules, under Section 18 of the Citizenship
Act, had provided that the passport shall be conclusive proof that its
holder has acquired the citizenship of the country whose passport he
D
holds. We, however, do not know whether the Central Government
has modified such a rule. When the validity of that rule came up for
consideration before a Bench of seven judges of this Court, an assurance
was given on behalf of the Central Government that a suitable modi·
fication of the relevant rule would be made. However, that question
is not under consideration before us now. All we need consider here
is whether the acquittal of the respondent was, in the circumstances
E
disclosed above, justified.
In view of Section 9(2) of the Citizenship Act, which has been
subject-matter of several decisions of this Court (See :State of A.ndhra
Pradesh v. Abdul Khader (1); Abdul Sattar v. State of Gujarat (2):
and Akbar Khan v. Union of India (3), the question whether a person
voluntarily acquired the citizenship of Pakistan during the specified
F
ptriod, could only be determined by the Central Government. In
Akbar Khan's case (Supra) it was observed by this, Court: (at page 782)
"If it was found that the appellants had been on
January 26, 1950, Indian citizens, then only the question
whether they had renounced that c;tizenship and acquired
a foreign citizenship would arise. That question the
Courts cannot decide. The proper thing for the court
would then have been to stay the suit till the Central Govern·
ment decided the question whether the appellants had
renounced their Indian citizenship and acquired a foreign
citizenship and then dispose of the rest of the suit in such
manner as the decision of the Central Government may
justify".
(1) [1962] 1 S.C.R. 737.
(2) A.I.R. [19651 S.C. 810•
(3) [1962]1 S.C.R. 779.
G
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GUJARAT V. YAKUB (Beg, J,)
On principle it does not matter whether the q'·<:stiou which can
only be determined by the Central Government under Section 9 of
the Citizenship Act arises in a civil suit or in a criminal prosecution.
If the real question which arises for determination is whether a person,
who was an Indian citizen when the Constitution came into force, had
Required the citizenship of another country or not during the specified
perjod, the proper thing to do for a Court where the question arises is
to refuse to adjudicate on that question. In the case before us it appears
that the issue was raised but not decided either in the Trial Court or
in the High Court. Indeed, the judgment of the High Court shows
that probably for this very reason the prosecution had tried to obtain
the conviction of the respondent on the ground that he had acquired
Pakistani citizenship before the commencement ef the Constitution.
That question had been rightly decided against the appellant. On
that short ground the acquittal of the appellant could have been upheld
if the prosecution case was confined to that question. But, after
having examined the charge framed, the cases set 1.1p by the two sides,
the contentions advanced in the Trial Court, the grounds of appeal to
the High Court, and those given in the special leave petition
in this Court, we think that a question of Jurisdiction of the criminal
courts to record either a conviction or acquittal in the case of the
respondent had properly arisen. Indeed, the real and decisive question to be considered and decided was not whether the respondent
possessed Indian nationality and citizenship on 26th January, 1950,
but whether he had lost that nationality at the time when he entered this
country on a Pakistani passport. The respondent has been charged
for overstaying contrary to the terms of the permit issued on 6th
December, 1957, by which he was allowed to stay until 20th December,
1958. Therefore, it was clear that the decisive question which the
Courts should have considered was whether, at the time when permission was given, and when the alleged overstay, contrary to the provi·
sions of clause ?(iii) of the Foreigners' Order, 1958, took place, the
respondent was. a foreigner. Without a decision of an appropriate
authority on that question neither an acquittal nor a conviction could
be recorded. As no finding can be given by criminal or civil Courts,
in a case in which an issue triable exclusively by the Central Government has properly arisen, the question of burden of proof, dealt with
in Section 9 of the Foreigners' Act, 1946, is immaterial.
However, in view of the erroneous procedure adopted on behalf of
the State in pressing for a conviction when it was clear that the charge
could not succeed at all without obtaining a deCision from the appropriate authority, we think that the correct order to pass in this case is
Si8
SUPREME COURT REPORTS
U!n4] 2 s.c.a.
not just to stay further proceedings after quashing the acquittal so as
to await the decision of the appropriate authority but to quash the
charge itself so that the accused may be discharged. This would leave
the State free to prosecute the respondent if and when a decision is
obtained against him from the appropriate authority in accordance
with the law. That authority will no doubt consider all the relevant
facts, including the total period of the respondent's stay in this country
as compared with the short period of his stay in Pakistan attd the cir·
cumstances in which the respondent alleges having obtained a Pakistani
passport and made a false statement in the visa application relied upon
by the prosecution.
The result is that we allow this appeal and set aside the acquittal
of the respondent. We also quash the charge framed against the
respo1tdent and order that he be discharged.
S.B.W.
Appeal alfouwl1
B
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