# Petitions dismissed. STATE OF ANDHRA PRADESH v. ABDUL KHADER

- **Citation:** [1962] 1 S.C.R. 737
- **Court:** Supreme Court of India
- **Decided:** 1962
- **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/petitions-dismissed-state-of-andhra-pradesh-v-abdul-khader-2075
- **Pages:** 8

## Headnote

Externment Order-Indian citizen going to Pakistan for a
>
short period and coming back with Pakistan passport and Indian
visa, if becomes a foreigner-Conviction for overstaying, if sustain ...
able-Foreigners Act, I946 (r3 of I946), ss. 3(2)(c), 8, 9-Citizenship Act, I955 (LV II of I955), s. 9-Constitution of India, Art.
5(a).
The respondent was born in India in r924 and had lived
there all along till about the end of r954. He had been paying
rent for his shop in India for ten years upto about r958 and his
.,
. family was and had always been in India. At the end of r954
or the beginning of r955 he went to Pakistan from where he
returned on January 20, r955, on a passport granted by the
Pakistan Government which had a visa endorsed on it by the
Indian authorities permitting him to stay in India up to April,
1955, The respondent applied to the Central Government for
extension of the time allowed by the visa but the records did not
show what order, if any, had been made on it.
As the respondent had stayed beyond the time specified in the visa, he was on
September 3, 1957, served with an order made by the Government of Andhra Pradesh under s. 3(2)(c) of the Foreigners Act,
1946, requiring him to leave India. The order described him
as a Pakistan national. On his failure to comply ,with this order
93
a;en raga 11ar
•
April 4.
z96I
The Stale of
Andhra Pradesh
v.
Abdul Khader
738
SUPREME COURT REPORTS
[1962]
he was prosecuted under s. 14 of the Foreigners Act. His
defence was that he was an Indian national. The trying magistrate rejected this defence and convicted him holding (a) that
the fact that the respondent obtained a Pakistan passport proved that he had disowned Indian nationality and ceased to be an
Indian national and (b) that by refusing to extend the time fixed
by the visa the Central Government had decided that the respondent was a foreigner and under s. 8 of the Foreigners Act, such
a decision was final.
An appeal by the respondent was dismissed by the Sessions Judge on the ground that the respondent's
application for extension of the time fixed by the visa proved
that he had renounced his Indian nationality and had acquired
the citizenship of Pakistan. The High Court of Andhra Pradesh
set aside the conviction in revision. On appeal by the State of
Andbra Pradesh,
Held, that neither the Magistrate nor the Sessions Judge
was competent to come to a finding of his own that the respondent, an Indian national, had disowned his nationality and
acquired Pakistan nationality for under s. 9(2) of the Citizenship Act, 1955, that decision could only be made by the prescribed authority which under the Rules framed under the Act
was the Central Government. The fact that the Central Government had refused to extend the visa did not show that it had
decided under the section that the respondent had renounced
his Indian nationality and acquired Pakistan citizenship. In
any event, in order that the Central Government might come to
a decision under s. 9(2) of the Citizenship Act an enquiry as
laid down in r. 30 of the Rules framed under the Act had to be
made and no such inquiry had been made.
On the facts established, the respondent became an Indian
citizen nnder Art. 5(a) of the Constitution when it came into force.
He thereby discharged the onus laid on him by s. 9 of the Foreigners Act to prove that he was an Indian citizen when that was
in dispute. The passport obtained by the respondent from the
Pakistan Government would, therefore, only be evidence that
the respondent had renounced Indian nationality and acquired
Pakistan citizenship. Such evidence was however of no use in a
court for no court could in view of s. 9(2) of the Citizenship Act
decide whether an Indian citizen had renounced his citizenship
and acquired the citizenship of a foreign country.
Section 8 of the Foreigners Act had no application to the
case as it only applied where a foreign~r is recognised as a
national by the law of more than one foreign country or where

## Text

1 S.C.R. SUPREME COURT REPORTS
737
)
Art. 31A(2)(a). If that is so the contention raised by
r96r
Mr. Limaye that the impugned Act is not protected by
A
31A
Shri !vlahadeo
rt. '
cannot succeed. As we have already indicaPaikaji f{olhe
ted it is not disputed that if Art. 31A applies there
Yavatmal
can be no further challenge to the validity of the imv,
pugned statute.
·1 he State of
The writ petitions accordingly fail and are dismissBomhay
ed with costs, one set of hearing costs.
G .
d
d'
1
Petitions dismissed.
STATE OF ANDHRA PRADESH
v.
ABDUL KHADER
(B. P. SINHA, c. J., s. K. DAS, A. K. SARKAR,
K. C. DAS GUPTA and N. RAJAGOPALA
AYYANGAR, JJ.)
Externment Order-Indian citizen going to Pakistan for a
>
short period and coming back with Pakistan passport and Indian
visa, if becomes a foreigner-Conviction for overstaying, if sustain ...
able-Foreigners Act, I946 (r3 of I946), ss. 3(2)(c), 8, 9-Citizenship Act, I955 (LV II of I955), s. 9-Constitution of India, Art.
5(a).
The respondent was born in India in r924 and had lived
there all along till about the end of r954. He had been paying
rent for his shop in India for ten years upto about r958 and his
.,
. family was and had always been in India. At the end of r954
or the beginning of r955 he went to Pakistan from where he
returned on January 20, r955, on a passport granted by the
Pakistan Government which had a visa endorsed on it by the
Indian authorities permitting him to stay in India up to April,
1955, The respondent applied to the Central Government for
extension of the time allowed by the visa but the records did not
show what order, if any, had been made on it.
As the respondent had stayed beyond the time specified in the visa, he was on
September 3, 1957, served with an order made by the Government of Andhra Pradesh under s. 3(2)(c) of the Foreigners Act,
1946, requiring him to leave India. The order described him
as a Pakistan national. On his failure to comply ,with this order
93
a;en raga 11ar
•
April 4.
z96I
The Stale of
Andhra Pradesh
v.
Abdul Khader
738
SUPREME COURT REPORTS
[1962]
he was prosecuted under s. 14 of the Foreigners Act. His
defence was that he was an Indian national. The trying magistrate rejected this defence and convicted him holding (a) that
the fact that the respondent obtained a Pakistan passport proved that he had disowned Indian nationality and ceased to be an
Indian national and (b) that by refusing to extend the time fixed
by the visa the Central Government had decided that the respondent was a foreigner and under s. 8 of the Foreigners Act, such
a decision was final.
An appeal by the respondent was dismissed by the Sessions Judge on the ground that the respondent's
application for extension of the time fixed by the visa proved
that he had renounced his Indian nationality and had acquired
the citizenship of Pakistan. The High Court of Andhra Pradesh
set aside the conviction in revision. On appeal by the State of
Andbra Pradesh,
Held, that neither the Magistrate nor the Sessions Judge
was competent to come to a finding of his own that the respondent, an Indian national, had disowned his nationality and
acquired Pakistan nationality for under s. 9(2) of the Citizenship Act, 1955, that decision could only be made by the prescribed authority which under the Rules framed under the Act
was the Central Government. The fact that the Central Government had refused to extend the visa did not show that it had
decided under the section that the respondent had renounced
his Indian nationality and acquired Pakistan citizenship. In
any event, in order that the Central Government might come to
a decision under s. 9(2) of the Citizenship Act an enquiry as
laid down in r. 30 of the Rules framed under the Act had to be
made and no such inquiry had been made.
On the facts established, the respondent became an Indian
citizen nnder Art. 5(a) of the Constitution when it came into force.
He thereby discharged the onus laid on him by s. 9 of the Foreigners Act to prove that he was an Indian citizen when that was
in dispute. The passport obtained by the respondent from the
Pakistan Government would, therefore, only be evidence that
the respondent had renounced Indian nationality and acquired
Pakistan citizenship. Such evidence was however of no use in a
court for no court could in view of s. 9(2) of the Citizenship Act
decide whether an Indian citizen had renounced his citizenship
and acquired the citizenship of a foreign country.
Section 8 of the Foreigners Act had no application to the
case as it only applied where a foreign~r is recognised as a
national by the law of more than one foreign country or where
it is uncertain what nationality is to be ascribed to a foreigner
and in the present case that was not the question but the question was whether the respondent was an Indian or a foreigner.
The respondent's short visit to Pakistan had not amounted
to a migration to that country.
Query, whether Art. 7 of the Constitution contemplates
migration from India to Pakistan after January 26, 1950.
(
•
..
1 S.C.R. SUPREME COURT REPORTS
CRIMINAL
APPELLATE
Appeal No. 192 of 1959.
JURISDICTION:
739
Criminal
The State of
Appeal by special leave from the judgment and Andhra Pradesh
order dated October 27, 1958, of the AndhraPradesh
v.
High Court at :Hyderabad in Criminal Revi.sion Case
Abdul Khader
No. 395 of 1958.
;
M. C. Setalvad, Attorney-General of India, T. V. R.
•
•
)
•
i
Tatachari and T. M. Sen, for the appellant.
R. Thiagarajan for N. S. Mani, for respondent.
1961. April 4. .The Judgment of the Court was
delivered by
SARKAR, J.-The respondent was convicted by the
Sa•kar J .
Judicial Magistrate of Adoni in the State of Andhra
Pradesh, under s. 14 of the Foreigners Act, 1946. His
appeal to the Sessions Judge of Kurnool was dismissed. He then moved the High Court of Andhra Pradesh in revision and the revision petition was allowed.
Hence the present appeal by the State of Andhra
Pradesh.
The facts found were these: On January 20, 1955,
the respondent had come to Adoni on a passport
granted by the Government of Pakistan which bore
the date January 10, 1955. The passport had endorsed on it a visa granted by the Indian authorities
which permitted the respondent to stay in India up to
April 14, 1955. The respondent continued to stay on
in India after that date. On some date, not precisely
ascertainable from the record, he appears to have made
a representation to the Government of India for extension of his visa till September 2, 1957, on grounds of
health. The records do not however show what order,
if any, was made on this representation. On September 3, 1957, an order dated August 9, 1957, made by
the Government of Andhra Pradesh requiring him to
leave India, was served on the respondent.
As the
respondent did not leave India as directed by this
order, he was prosecuted with the result earlier
stated.
The passport showed that the respondent was born
at Adoni in 1924.
The respondent appears to have
The State of
A ndhra }Jradesh
v.
Abdul J(hader
Sarkar ].
740
SUPREME COURT REPORTS
(1962]
produced an extract from the municipal birth register,
which is not on the record, but presumably showed
that he was so born. The only evidence on the record
of the date when he left India, shows tha.t that must
have been at the end of 1954 or early in 1955.
There
is evidence to show that he had been paying rent for
his shop at Adoni for about ten years prior to 1958
and his parents, brothers, wife and children were and
had always been in India.
The respondent was charged with the bre.ach of the
order to leave India which had been made under s. 3
(2.)(c) of the Foreigners Act. Now the order could not
be made on him, neither could he be convicted for
breach of it, if he was not a foreigner.
'That was the
defence of the respondent, namely, that he was not a
foreigner.
The question is, was he a foreigner?
The learned Judicial Magistrate found that by obtaining the passport from the Pakistan authorities,
"he has disowned Indian nationality and he has ceased
to be an Indian National." He also held that s. 9 of
the Foreigners Act did not apply to the case but s. 8
of that Act did and that under that section a decision
made by the Government that a person is a foreigner
is final and such a decision had been made in this case
regarding the respondent as the Government had decided not to grant him an extension of his visa. On these
grounds he found that the respondent was a foreigner.
It seems to us that both these grounds are untenable.
Section 8 applies to a case where "a foreigner is
recognised as a national by the law of more than one
foreign country or where for any reason, it is uncertain
what nationality if any is to be ascribed to a foreigner." The section provides that in such cases the
prescribed authority has power to decide of which
country the foreigner is to be treated as the national
and such decision shall be final.
The section, therefore, applies to a person who is a foreigner and the
question is of which foreign country he is a national.
In the case of the respondent no such question arose
and no decision could be or was made by any prescribed authority of such question. The learned Magistrate therefore cle1trly went wrong in relying on s. 8.
..
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)
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1 S.C.R. SUPREME COURT REPORTS
741
r961
As regards the passport, the learned Magistrate did
not come to the finding that it proved the respondent
Tlw State of
to have been a Pakistani national all along. What he Andhra Pradesh
v.
did was to think that the respondent who had earlier
been an Indian national, had by obtaining it, disAbdul Khader
owned Indian nationality and ceased to be an Indian
Sarkar ].
national.
Now, s. 9(2) of the Citizenship Act, 1955, provides
that if any question arises as to whether an Indian
citizen has acquired the citizenship of another country, it shall be determined by such authority and in
such manner as may be prescribed. Under r. 30 of
the rules framed under that Act, the authority to dcdide that question is the Central Government. So the
question whether the respondent, an Indian citizen,
had acquired Pakistani citizenship cannot be decided
by courts. The learned Magistrate had no jurisdiction
therefore to come to the finding on the strength of the
passport that the respondent, an Indian citizen, had
acquired Pakistani citizenship. Nor was there anything before the learned Magistrate to sho IV that the
Central Government had decided that the respondent
had renoun.ced Indian citizenship and acquired that of
Pakistan. The learned Magistrate thought that the
fact that the Central Government had refused to
extend the respondent's visa proved that it had decided that he had acquired Pakistani nationality. This
view again was not warranted. There is nothing to·
show that the Central Government had refused to
extend the respondent's visa. Even if it had, that
would not amount to a decision by it that the respondent, an Indian citizen, had acquired subsequently
Pakistani nationality for there may ho such refusal
when an applicant for the extension had all along been ·
a Pakistani national. Furthermore, in order that there
may be a decision by the Central Government that an
Indian citizen has acquired foreign nationality, an
enquiry as laid down in r. 30 of the rules framed
under the Citizenship Act has to be made and no such
enquiry had at all been made. That being so, it cannot be said that the Central Government had decided
that the respondent, an Indian citizen, had acquired
the citizenship of Pakistan.
742
SUPREME COURT REPORTS
[1962]
The question whether a person is an Indian citizen
The State of
or a foreigner, as dist.inct from the question whether
Andhra l'>adesh a person having once been an Indian citizen has renv.
Abdul Khader
Sarkar ].
ounced that citizenship and acquired a foreign nationality, is not one which is within the exclusive jurisdiction of the Central Government to decide. The courts
can decide it and, therefore, the learned Magistrate
could have done so. He, however, did not decide that
question, that is, find that the respondent had been a
Pakistani national all along. On the evidence on the
record such a finding would not have been warranted.
For all these reasons we think that the conviction of
the respondent by the learned Magistrate was not well
founded.
Coming now to the decision of the learned Sessions
Judge, he seems to have based himself on the reasoning that the "conduct of the appellant" that is, the
respondent before us, "in applying for extension of
time shows that he is not a citizen of India and that
he has acquired citizenship of Pakistan. If he were
a citizen of India, he could have raised this plea and
this question could have been decided by the Central
Government as envisaged by Rule 30, sub-Rule 1 of
the Rules made under the Citizenship Act and there
was no necessity to apply for extension." Quite
plainly, the learned Sessions Judge was proceeding on
the basis that the respondent had renounced his
Indian citizenship and acquired Pakistani citizenship.
As we have said earlier, that is not a question which
is open to a court to decide and there is no evidence
to show that it has been decided by the Central
Government who alone has the power to decide it.
The learned Sessions Judge did not direct himself to
the quest.ion which he could decide, namely, whether
the respondent had from the beginning been a Pakistani citizen. His decision, therefore, cannot also be
sustained.
We have examined the evidence on the record ourselves and are unable to say that a conviction can be
based on it. There can be no conviction unless it
can be held on the evidence that the respondent is a
foreigner, that is to say, a person who is not an Indian
•
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•
1 S.C.R. SUPREME COURT REPORTS
743
citizen: see s. 2(a) of the Foreigners Act as amended
by Act II of 1957.
The evidence shows that the respondent did go to
Pakistan, but the only evidence with regard to that
is that he went there about the end of 1954 or the
beginning of 1955. This evidence also indicates that
he stayed there for a short time. He was all along
paying the rent for his shop in Adoni.
His family
had always been there. Therefore it can be said that
he had never migrated to Pakistan. Clearly, a short
visit to Pakistan would not amount to migrating
to that country.
The passport obtained by him from
Pakistan would no doubt be evidence that he was
a Pakistani national. As on the facts of this case
he must be held to have been an Indian citizen on
the promulgation of the Constitution, the passport
can show no more than that he renounced Indian
citizenship and acquired Pakistani nationality. Such
evidence would be of no use in the present case for,
in view of s. 9(2) of the Citizenship Act, a Court cannot decide whether an Indian citizen has acquired the
citizenship of another country.
The position then is this. The respondent has
clearly discharged the onus that lay on him under s. 9
of the Foreigners Act to prove that he was not a
foreigner, by proving that he was born and domiciled
in India prior to January 26, 1950, when the Constitution came into force and thereby had become an
Indian citizen under Art. 5(a) of the Constitution. He
has further proved that he had never migrated to
Pakistan. It has not been shown that the Central
Government had made any decision with regard to
him under s. 9 of the Citizenship Act that he has
acquired a foreign nationality. Therefore, it cannot
be held by any court that the respondent who was an
Indian citizen has ceased to be such and become a
foreigner. That being so, it must be held for the purpose of this case that the respondent was not a foreigner and no order could be made against him under.
s. 3(l)(c) of the Foreigners Act. Conviction for breach
of such an order by the respondent would be wholly
illegal.
The State oj
Andhra Pradesh
v.
Abdul Khader
Sarkar J.
744
SUPREME COURT REPORTS
[1962]
Though we are upholding the decision of the High
Court, we wish to observe that we do not do. so for the
The State of
Andhra Pradesh reasons mentioned by it. It is unnecessary to discuss
z96r
v.
those reasons but we would like to point out one
Abdul Khad" thing, namely, that the High Court seems to have
Sarkar ].
April 4·
been of the opinion that Art. 7 of the Constitution
contemplates migration from India to Pakistan even
after January 26, 1950.
We desire to make it clear
that we should not be taken to have accepted or endorsed the correctness of this interpretation of Art. 7.
The reference in the opening words of Art. 7 to Arts.
5 and 6 taken in conjunction with the fact that both
Arts. 5 and 6 are concerned with citizenship (at the
commencement of the Constitution) apart from various other considerations would appear to point
to the conclusion th11t the migration referred to in
Art. 7 is one before January 26, 1950, and that the
contmry construction which the learned Judge has
put upon Art. 7 is not justified, but in the view that
we have taken of the facts of this case, namely, that
the respondent had never migrated to Pakistan, we
do not consider it necessary to go into this question
more fully or finally pronounce upon it.
In the result we dismiss the appeal.
Appeal dismissed.
UNION OF INDIA
v.
GRAUS MOHAMMAD
(B. P. SINHA, C. J., S. K. Das, A. K. SaRKAR,
K. C. Das GUPTA and N. RAJAGOPALA AYYANGAR, JJ.)
Externinent Order-Foreigner or Indian Citizen-Burden of
proof-Law applicable-Citizenship Act, I955 (LV II of 1955),
s. 9-Foreigners Act, z946 (IJ of z946), ss. 3(2)(c), 9·
An order had been made under s. 3(2)(c) of the Foreigners
Act, 1946, directing that the respondent, "a Pakistan national
.. '
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