# STATE OF ASMM v. JILKADAR ALI

- **Citation:** [1973] 1 S.C.R. 685
- **Court:** Supreme Court of India
- **Decided:** 1972-07-18
- **Bench:** J. M. Shelat, H. R. Khanna
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-asmm-v-jilkadar-ali-5702
- **Pages:** 6

## Headnote

685
ForeignerJf Act 1946--Stction 14 read with clause 7 <>/ the Foreigners'
Order 1948-Wheth~r a person who opted for service in Pakistan afllr
partition and leaving India to settle in Pakistan permanent(y will be considered as a "foreigner'", under the Foreigners' Act 1946.
Prior to 194 7, the respondent was in the serviCe of the Government
of Assam as an unarmed Police constable and on partition, he opted for
service in Pakistan. The respondent went to the then East Pakistan and
joined Pakistan Government 11ervice as a peon.
He entered India in 1953 on the strength of a Pakistani passport but
returned to Pakistan in 1954.
Again in 1955, he obtained an Indian
visa which was valid upto January 26, 1955.
On the strength of that
visa, he entered India but instead of returning to Pakistan, he over-stayed
until he was detec'ted and arrested. He was then prosecuted under s. 14
of the Foreigners'' Act 1946 read with Clause 7 of the Foreigners Order,
1948.
The Additional District Magistrate oonvicted and rentenced him and
the Sessions Judge also upheld the said order of conviction and sentence.·
In a revision application, the High Court, relying on Fida Hussain v. U.P.,
[1962], 1. S.C.R. 776, reversed the said order of conviction and sentence
and acquitted him on the ground that he was· not a 'foreigner' under •·
2(a) of the Foreigners' Act, but was a citizen of India under Art. 5 of the
Constitution; when he eniered India in 1955 (before the said definition
was amended in 1957.
Allowing the appeal,
Held : ( 1) The respondent was a foreigner when he entered India in
1955 as the definition of 'foreigner' then stood and by overstayin~ beyond
the period permissible under the visa, he dearly committed breach of
Gause 7 of the Foreigners Order, 1948 and was liable to be convicted
under S. 14 of the Foreigners Act, 1946. (690B-C]
The crucial point in the pre5ent case, was whether the Respondent
had migrated to Pakistan between 1947 and-1950. If he did, then notwithstanding his complying wHh the requirement of .Art. 5, his case would
fall under Art. 7 and he would he deemed not to be a citizen even on
the date of his entry in India in 1955.
Considering the facts of the
present case, viz., the option exercised by the respondent for Pakistan
service, his having secured release from Indian service, as a ~onstable, his
going to Pakistan .and obtaining service there as a peon, his staying there
for a long ,l<'riod; his obtaining Pakistani passport and visas declaring
therein that he had acquired Pakistani citizenship and domicile etc; there
could be no doubt that he had gone to Pakistan permanently. His case
thus fell within Art. 7 and therefore, at his entry in India in 1955 he
was a person who was deemed not to he a. citizen of India. [688C-G]
H. P. v. Petr Mohammad, [1963] 1 S.C.R. 429, Kulathi/ Mammu v.
Kerala, [1966] 3 S.C.R. 706, Stat• v. Ibrahim Nabiji, A.LR. 1959 Born.
526 •nd Stat• v. Akub, A.LR. 1961 All. 428, referred to.
686
SUPREME COURT REPORTS
\
I
[1973] 1 S.C.K.
ciUM1NAL APPELLATE Jm1smcnoN: Criminal Ap~al .No.
176 of 1969.
•
Appeal from the Judgment
and order dated November 12,
1968 of the Assam and Nagaland High Court in Criminal Revission No. 73 of 1968.
K. P. Gupta, for. the appellant
V. A. Seiyid Mahmud and S. K. Nandy, for the respondent .•

## Text

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STATE OF ASMM
v.
JILKADAR ALI
.July 18, 1972
[J. M. SHELAT AND H. R. KHANNA, JJ.]
685
ForeignerJf Act 1946--Stction 14 read with clause 7 <>/ the Foreigners'
Order 1948-Wheth~r a person who opted for service in Pakistan afllr
partition and leaving India to settle in Pakistan permanent(y will be considered as a "foreigner'", under the Foreigners' Act 1946.
Prior to 194 7, the respondent was in the serviCe of the Government
of Assam as an unarmed Police constable and on partition, he opted for
service in Pakistan. The respondent went to the then East Pakistan and
joined Pakistan Government 11ervice as a peon.
He entered India in 1953 on the strength of a Pakistani passport but
returned to Pakistan in 1954.
Again in 1955, he obtained an Indian
visa which was valid upto January 26, 1955.
On the strength of that
visa, he entered India but instead of returning to Pakistan, he over-stayed
until he was detec'ted and arrested. He was then prosecuted under s. 14
of the Foreigners'' Act 1946 read with Clause 7 of the Foreigners Order,
1948.
The Additional District Magistrate oonvicted and rentenced him and
the Sessions Judge also upheld the said order of conviction and sentence.·
In a revision application, the High Court, relying on Fida Hussain v. U.P.,
[1962], 1. S.C.R. 776, reversed the said order of conviction and sentence
and acquitted him on the ground that he was· not a 'foreigner' under •·
2(a) of the Foreigners' Act, but was a citizen of India under Art. 5 of the
Constitution; when he eniered India in 1955 (before the said definition
was amended in 1957.
Allowing the appeal,
Held : ( 1) The respondent was a foreigner when he entered India in
1955 as the definition of 'foreigner' then stood and by overstayin~ beyond
the period permissible under the visa, he dearly committed breach of
Gause 7 of the Foreigners Order, 1948 and was liable to be convicted
under S. 14 of the Foreigners Act, 1946. (690B-C]
The crucial point in the pre5ent case, was whether the Respondent
had migrated to Pakistan between 1947 and-1950. If he did, then notwithstanding his complying wHh the requirement of .Art. 5, his case would
fall under Art. 7 and he would he deemed not to be a citizen even on
the date of his entry in India in 1955.
Considering the facts of the
present case, viz., the option exercised by the respondent for Pakistan
service, his having secured release from Indian service, as a ~onstable, his
going to Pakistan .and obtaining service there as a peon, his staying there
for a long ,l<'riod; his obtaining Pakistani passport and visas declaring
therein that he had acquired Pakistani citizenship and domicile etc; there
could be no doubt that he had gone to Pakistan permanently. His case
thus fell within Art. 7 and therefore, at his entry in India in 1955 he
was a person who was deemed not to he a. citizen of India. [688C-G]
H. P. v. Petr Mohammad, [1963] 1 S.C.R. 429, Kulathi/ Mammu v.
Kerala, [1966] 3 S.C.R. 706, Stat• v. Ibrahim Nabiji, A.LR. 1959 Born.
526 •nd Stat• v. Akub, A.LR. 1961 All. 428, referred to.
686
SUPREME COURT REPORTS
\
I
[1973] 1 S.C.K.
ciUM1NAL APPELLATE Jm1smcnoN: Criminal Ap~al .No.
176 of 1969.
•
Appeal from the Judgment
and order dated November 12,
1968 of the Assam and Nagaland High Court in Criminal Revission No. 73 of 1968.
K. P. Gupta, for. the appellant
V. A. Seiyid Mahmud and S. K. Nandy, for the respondent .•
The Judgment of the Court was delivered by
Shelat, J. Prior to August 15, 1947, the respondent'was in
the servi.ce of the Government of Assam as an unarmed Police
Constable bearing No. 407, serial No. 29. On partition, he opted
for service in Pakistan: Consequent on his exercisil)J1; such option,
the Assam Government passed an order.No.~2155, dated De~m
ber 31, 1947, releasing him from service and directing him to
report to the Inspector-General of Police, Dacca for service there.
The respondent thereafter went to the then East Pakistan and
joined Pakistan Government service as a peon in the sub-registrar's
office at Fenchuganj, District Sylhet.
,
He entered India on December 23, 1953.on the strength of
a Pakistani passport, dated September 10, 1953 ·and an Indian
visa dated November 11, ,1953.· He appears to haye :returned to
Pakistan on April 25, 1954. On January 27, 1955, he again
applied for and obtained an Indian visa which was valid upto
January 26, 1955. On the strength of that visa, he entered India
on April 4, 1955. Instead of returning to Pakistan,.he overstayed
beyond January 26, 1955 unlil he wai detected on October 9,
1964 in the village Niargram, Salchar Sub-Division in.th.e house
of one Tozamul Ali Majumdar. He had at that time no permit
as required by cl. 7_of the Foreigners.Order, 1948, as_l)lllended in
1959. He was consequently arr~.sted ·and prosecut¢ under sec. 14
of the Foreigners Act, 1946 read wi\11 ·cl. 7 of the Foreigners
Order, 1948.
·
The Additional· District Magistrate, Silchar convicted him
under cl. 7 of the Foreigners Order read with, s. 14 of the Foreigners Act, 1946 and sentenced him to rigorous imprisonment for a
period of six montm and directed that he should lie deported from
India after he had served out the sentence. On appeal by the
respondent :against the said order of conviction and sentence, the
Sessions Judge, Silchar upheld the said order of convictio9 and
sentence .
. In the revision application filed by him in the High Court of
Assam and Nagaland, the High Court, relying on Fidea Hussain
v. U.P. ( 1), reversed the said order of conviction and sentence and
U) [1962] l S.C.R. 776.
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ASSAM v. JJLKAl)AR ALI (She/at, J.)
887
accepting the revision acquitted him. The reasoning adopted by
the High Court was that as in the case of Fida Hussain( 1) the
respondent was a natural born British subject,. that being so he
was at the date of his entry in India in April 1955 a citizen of
India under Art. 5 of the Constitution and that he was governed
by the definition of a foreigner in the Foreigners Act before that
Act was amended in 1957.
Before the said amendment, a
foreigner as. defined by s. 2 (a) meant a person who :
( i) is not a natural born British subject as defined in
sub-sections ( 1) and (2) oi sec. 1 of the British
Nationality and Status of Aliens Act, 1914, or
(ii) has not been granted a certificate of naturalization
as a British subject under any law for the time
hieing in force in India, or
(iii) is not a citizen of India.
The High Court felt that the respondent fell under cl. (i) of the
said definition and therefore was not a foreigner when he entered
India in April 1955 (i.e., before the definition was amended in
1957) and was not, therefore, required to obtain a permit under
cl. 7 of the Foreigners Order, 1948.
According to the High
Court, if the amended definition applied to the respondent it
would be the Central Government and not a court of law which
could under the Citizenship Act, 1955 be the- appropriate authority to deal with such questions.
In our view the reasoning adopted by the High Court, of
which the basis was the decision in Fida HiJssam's case(1) was
not valid as the High Court omitted to take into account the fact
of the respondent having left India for Pakistan in August 1947'
after he has opted for service in Pakistan.
The defence oi the respondent was that he was born in India
that he owned a house and lands in India and was therefore ~
citizen of India within the meaning of Art. 5 of the Constitution.
There is, however, the fact established by the record in this case
that in 194 7 he opted for Pakistani service, and that he left India
f?r Pakistan where he obtained service as. a peon and that he
hved there from 194 7 to 1953-when he came to India on a short
visit on the strength of a Pakistani passport and a visa and then
returned to Pakistan.
Under Art. 7, notwithstanding anything in Art. 5, a person,
wh<? ha~ alter the first day of March 1947, migrated from the
temtory of India to the territory included in Pakistan shall not
be deemed to be a citizen of India. If Art. 7 applied to this case,
(I) (1962] I s.c.R. 776.
688
SUPRBMI! COURT REPORTS
[1973] 1 S.C.R.
the respondent would not bo deemed to be a citizen of India
notwithstanding his complying with the conditions of Art. 5. It
ii quite clear from H.P. v. Pear Mohammad(1) t.hat it would bie
Art. 7 and not the Citizenship Act, 1955 which would apply to
a case where a person has migrated to Pakistan between March l,
1947 and January 26, 1950 when the Constitution came into
force. If Art. 7 were to apply it is clear that the court and not
the Central Government or its delegate which would have jurisdiction to deal with the question whether th·~ person concerned is
a foreigner to be dealt with under the Foreigners Act.
.
The crucial point in the case, therefore, was whether the respondent had migrated to Pakistan between March 1, 1947 and
January 26, 1950. If he did, then notwithstand.ing his complying with the requirements of Art. 5, his case WO!lld fall under
Art. 7 and he would be deemed not to be a citizen even on the
date of his entry in India on April 4, 1955. What then is the
connotation of 1he word 'migrated' within the meaning of Art. 7
in Kulathit Manrmu v. Kerala( 2 ), this Court interpreted Art. 7
and held that the word 'migrated' was capa)Jle of two meanings.
In its narrower connotation it meant going from one place to
another with the intention of residing permanently in the fatter
place; in its wider connotation it simply meant going from one
place to -another whether or not with the intention of permanent
residcuce in the latter place. In A~t. 7 the word was used in its
wider sense though it did not take in movement which was involuntary or for a specific purpose and for a short and limited
period. Considering the facts of the present case, viz., the option
exe•cised by the respondent for Pakistan service, his having
secured release from Indian service as a constable, his going to
Pakistan and obtaining service there as a peon in the sub-registrar's
office, his staying there thereafter for a long period, his obtaining
Pakistani passport and visas declaring therein that he had acquired
Pakistani citizenship and domicile, there can be no doubt that he
had gone to Pakistan permanently.
His movement to Pakistan
thus. was neither involuntary nor for a short. or limited period, but
was clearly with the definite intention of having a permanent
place of abpde there. His case thus fell within Art. 7 and therefore on his entry in India on April 4, 1955 he was a person who
was deemed not to be a citizen of India.
In Fida Hussain v. U.P. (1 ), the question of the applicability
of Art. 7 did not arise and was not considered presumably because
it was not contended that Fida Hussain had migrated to the territory which fell within Pakistan between March 1, 1947 and
Jl!lluary 26, 1950. The Court, therefore, conside~ed only cl. (1)
of s. 2(1) of the Foreigners Act, 1945 and not us cl. (3) as 1t
(2) [1966] 3 S.C.R. 706.
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ASSAM v. JILKADAR ALI (She/at, !.)
689
stood before its amendment in 1957. It appears >that the only
date available there was the date of his entry in 1953, when the
unamended definition prevailed. It could not, therefore, be said
there that he had migrated from India between March 1, 194 7
and January 26, 1950, and that therefore, he would be deemea
not to be a. citizen of India under Art. 7. In our view, the High
Court could not have relied on Fida Hussain's case (supra) for its
conclusion that, the respondent was not a foreigner in April 1955,
and that therefore, cl. 7 of the Foreigners' Order could not apply
to him.
Cl. 7 of the Foreigners' Order 1948 by its 'ub-cl. (1)
requires every foreigner who enters India on the authority of a
visa to oQ!ain a permit from the relevant authority indicating the
period during which he is authorised to remain in India.
The
visa obtained by the respondent permitted him to stay in India
till. January 26, 1956. If he wanted to stay beyond that period,
it was incumbent on him as provided by sub-cl. (3) of cl. 7 to
obtain from the relevant authority thereunder an extension of the
period mentioned in the visa. In the absence of such an exten ·
sion he was bound to depart from India on January 26, 1956.
Admittedly he did not, but on the contrary contihued to remain
in India until he was detected in 1964.
Dr. Mahmood, however, relied on
the Registration of
Foreigners (Exemption) Order, 1957. But whether the responE • dent was exempted under that order or not is entirely irrelevant
for the purposes of cl. 7 of the Foreigners Order, 1948, whose
purpose clearly is to see that a foreigner entering India under a
visa does not overstay beyond the period for which the visa permits him to stay in this country.
By overstaying. here without
t~e required extension the respondent clearly yiolated the proviF
s~ons of cl. 7(1) a!1d (3) of the Foreigners' Order, 1948 in
view of our conclus10n that he was a person who was deemed
not to be a cittz~~ of this country, and therefore, a foreigner even
under the. defimt10n of a foreigner in sec. 2 of the Foreigners
G
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Act before it was .amended in 1957.
.
The decision in State v. Ibrahim Nabiji(1) referred to by
CO)-lnsel . ":!so .does not assist as it did not have to deal with the
pomt ansmg m the present appeal, that is with regard to a person
who, notwithstanding Art. 5, is to be deemed not to be a citizen
undef Art. 7, and th~refore, a foreigner within the meaning of
sec. 2(a) of the Foreigners Act as it stood in 1955. The State
v., Akub(
2
) another decision relied on by Dr. Mahmood, merely
laid down that .persons who are sought to be brought within the
scope and ambit of cl. 7 of the Foreigners' Order, 1948 are
(!) A.I.R. 1959. Born. 526.
(2) A.I.R. 1961 All. 428.
•90
SUPREME COURT REPORTS
[1973] 1 S~C.R.
persons who are not citizens of India, and that that dause did
not apply to those who were not foreigners at the date of their
entry although they may become foreigners alter their entry by
reason of the amendment of the definition in 1957. This decision again cannot assist the respondent in view of our ~nclusion with regard to Art. 7 ·by reason of which the .respondent
even at the date of his entry in 1955 was deemed not to be a
citizen of India.
In our view the respondent· was a foreigner when he entered
India in April 1955 as the definition of foreigner then stood, and
by overstaying beyond the period permissible under the visa on
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the strength of which he had entered India he clearly committed
breach of cl. 7 of the Foreigners' Order, 1948 and was Hable to
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be punished under s. 14 of the Foreigners Act, 1946, He was,
therefore, rigntly convicted and sentenced by the Trial Magis-
•
trate. The High Court, in our view, erred in setting aside that
order of conviction and sentence.
The appeal by the State is,
therefore, allowed and the order of the Trial Court is restored.
s.c.
Appeal allowed.
'·