# State of Madhya Pradesh v. Peer Mohd

- **Citation:** [1963] Supp. 1 S.C.R. 429
- **Court:** Supreme Court of India
- **Decided:** 1960-04-26
- **Case number:** Criminal Appeal No. 12 of 1961
- **Bench:** B. P. Sinha, P. B. Ga.Jesdragadkah, K. N. WANf'HOo, K. C. Das Gfpta, J.C. Shah
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-madhya-pradesh-v-peer-mohd-2719
- **Pages:** 11

## Headnote

Gitizenship-Foreigner-lrulian going
to ]Jakistan after
r1on8fitution-Return on Paki.>1f.ani JHf8Rport-If reas"'s to
be
ritizen of India-l
1on.'5titutinn of /11,rlirt, .4t!.
7-ffif1"zen~'fh1'.7;
Act, 1955 (-57 of 19•i•j).
The respondents who were citizens of India left India
for Pakistan sometime after January 26, 1950.
They returned
to India in 1956 on the strength of a Pakistani passport and
visa.
They continued to stay in Io.dia even after the period of
the visa had expired and were prosecuted under s. 14 Foreigners
Act, 1_946, read with cl. 7 Foreignei 's Order, 1948, for unauthonsed and illegal overstay in
India. The High Court
acquitted them holding that they had not become foreigners
on account of their leaving India after January 26, 1950, and
the question whether they had lo~t their Indian citizenship on
account of acquisition of Pakistani citizenship could not be
agitated before a court of law. The appellant contended that
in view of Art. 7 of the Constitution the respondents could
~962
Haz.ari Lal
v.
Stale of Bihat
Mudholkar, J.
1962
September, 29•
1962
State of Madhya
Pradesh
v.
Peer Mohd.
Gajendragadkar, J.
430 SUPREME COURT REPORTS [1963]SlJPP.
not be deemed to be citizens of India as they had migrated to
Pakistan after March 1, 1947, within the meaning of Art. 7.
Held, that Art. 7 was applicable only to persons who had
migrated to Pakistan between March 1, 1947, and January 26,
1950, and under this Article the respondents had not ceased to
be citizens of India. The words "has migrated" in Art. i
could not include cases of persons who would migrate after the
commencement of the Constitution, they refer only to persons
who had migrated at the date when the Constitution came into
force. The absence of the words "at the commencement of the
Constitution" in Art. 7 has no significance. Cases of acquisition of foreign citizenship after January 26, 1950, were covered
by the provisions of the Citizenship Act, 1955, and uf the rules
made thereunder. The Central Government or its delegate
was the appropriate authority to deal with such questions and
they could not be tried in courts.
lzhar Ah;,.ad Khan v. Union of India, referred to.

## Text

1 S.C.R.
SUPREME COURT REPORTS
.J:,!!l
Along with this appca I Crimin<:I Appeal N?.
;{5 of 1961 was also heard and this judgment will
govern the decision of that appeal also.
Th~re the
facts are slightly different only in one respect, m that
the account book which was snatched away from the
hands of the Assistant Superintendent of Commercial
Taxes was in the process torn, part of it remaining
in the hands of the Assistant Superintendent and a
part in the hands of the dealer who snatched it a'-1'.ay.
Apart from that, there is no difference and the pomts
which were urged before us were identical.
For the
reasons given by us we dismis' this appeal also.
Appenls dismissrd.
STATE OF MADHYA PRADESH
·1·.
PEER MOHD. & ANOTHER.
(B. P. SINHA, c. ]., P. B. GA.JESDRAGADKAH, K. N.
WANf'HOo, K. C. DAS GFPTA and J.C. SHAH, JJ.)
Gitizenship-Foreigner-lrulian going
to ]Jakistan after
r1on8fitution-Return on Paki.>1f.ani JHf8Rport-If reas"'s to
be
ritizen of India-l
1on.'5titutinn of /11,rlirt, .4t!.
7-ffif1"zen~'fh1'.7;
Act, 1955 (-57 of 19•i•j).
The respondents who were citizens of India left India
for Pakistan sometime after January 26, 1950.
They returned
to India in 1956 on the strength of a Pakistani passport and
visa.
They continued to stay in Io.dia even after the period of
the visa had expired and were prosecuted under s. 14 Foreigners
Act, 1_946, read with cl. 7 Foreignei 's Order, 1948, for unauthonsed and illegal overstay in
India. The High Court
acquitted them holding that they had not become foreigners
on account of their leaving India after January 26, 1950, and
the question whether they had lo~t their Indian citizenship on
account of acquisition of Pakistani citizenship could not be
agitated before a court of law. The appellant contended that
in view of Art. 7 of the Constitution the respondents could
~962
Haz.ari Lal
v.
Stale of Bihat
Mudholkar, J.
1962
September, 29•
1962
State of Madhya
Pradesh
v.
Peer Mohd.
Gajendragadkar, J.
430 SUPREME COURT REPORTS [1963]SlJPP.
not be deemed to be citizens of India as they had migrated to
Pakistan after March 1, 1947, within the meaning of Art. 7.
Held, that Art. 7 was applicable only to persons who had
migrated to Pakistan between March 1, 1947, and January 26,
1950, and under this Article the respondents had not ceased to
be citizens of India. The words "has migrated" in Art. i
could not include cases of persons who would migrate after the
commencement of the Constitution, they refer only to persons
who had migrated at the date when the Constitution came into
force. The absence of the words "at the commencement of the
Constitution" in Art. 7 has no significance. Cases of acquisition of foreign citizenship after January 26, 1950, were covered
by the provisions of the Citizenship Act, 1955, and uf the rules
made thereunder. The Central Government or its delegate
was the appropriate authority to deal with such questions and
they could not be tried in courts.
lzhar Ah;,.ad Khan v. Union of India, referred to.
CRIMINAL APPELLATE JURISDICTION : Criminal
Appeal No. 12 of 1961.
Appeal from the judgment and order dated
April 26, 1960, of the Madhya Pradesh High Court
Jabaipur in Criminal Appeal No. 388 of 1958.
R. t)en and I. N. Shroff, for the appellant.
The respondent did not appear.
1962. September 28. The Judgment of the Court
was delivered by
GAJENDRAGADKAR, J.-A charge-sheet
was
presented by the appellant the State of Madhya
Pradesh against the respondents Peer Mohammad
and his wife Mst. Khatoon under s. 14 of the Foreigners Act, 1946 (hereinafter called the Act) read with
cl. 7 of the Foreigners Order, 1948 (hereinafter called
the Order) in the Court of the Magistrate lst Class,
Burhanpur. The case against the respondents was
that they had entered India on May 13, 1956, on the
strength of a Pakistani passport and a visa issued
in their favour.on .May 8, 1956, and reached Burhanpur on May 15, 1!}56. Even after the period of the
t S.C.R. SUPREME COURT REPORTS
.Jill
visa had expired, they continued lo slay in India.
Consequently, the District .Magistrate, Burhanpur,
served a notice on them on May 14, 1957 calling
upon them to leave India on or before May 28, 1957.
The respondents did not comply with the notice and
by their unauthorised and illegal over-stay in India,
they rendered themselves liable under s. l 4 of the
Act and cl. 7 of the Order.
The respondents pleaded that they were not
foreigners but were citizens of India. They were
born in India at Burhanpur and had been permanent
residents of the sa;d place; and so
the ·present
criminal proceedings instituted against them were
mis-conceived.
The prosecution, however, urged that the
respondents had left India for Pakistan some time
after January 26, 1950, and under Art. i of the
Constitution they cannot b<:> deemed to be citizens of
India. In the alternative, it was urged that since
the respondents had obtained a Pakistani passport,
they have acquired the citizenship of a foreign country
and that has terminated their citizenship of India
nnder s. 9 of the Citizenship Act, l\JGli (LVII of
1955). It appears that before the learned Magistrate, only this latter plea was pressed and the learned
Magistrate held that the question as to whether
the respondents had lost their citizenship of India
under s. 9 (2) of the Citizenship Act has to be decided
~Y the Central Government and cannot be agitated
m a court of law.
Therefore, the learned Magistrate
passed an order under s. 249 of the Code of Criminal
Procedure, directing that the respondents should be
released, and the passport seized from them should be
returned to them after the period of appeal, if any.
Against this order, the appellant preferred an
appeal.in the High Court of Madhya Pradesh, and
before the High Court it was urged by the appellant
that on a fair and reasonable construction of Art. 7
1962
Stat. of Madhya
Pradesh
v.
Peer Mohd.
Gajendragadkar, J.
19'2
State of Madhya
Pradesh
v.
Peer Mohd.
Gajendragadkar, J,
i32 SUPREME COURT REPORTS [l963]SUPP.
it should be held that the respondents cannot be
deemed to be citizens of India and so, they were
liable under s. 14 of the Act and cl. 7 of the Order.
This appeal was heard by Shrivastava and Naik, JJ.
Shrivastava, J., took the view that Art. 7 did not apply
to the case of the respondents who had left India for
Pakistan after January 26, 1950, and so, they could
not be held to be foreigners on the ground that they
had left India as alleged by the prosecution. Naik,].,
however, came to a contrary conclusion. He took
the view that since it was proved that the respondents
had left India for Pakistan after January 26, 1950,
Art. 7 was attracted and so, they must be deemed to
be foreigners. Since there was a difference of opinion
between the two learned Judges who heard the appeal,
it was referred to Newaskar J. Newaskar, J., agreed
with the conclusion of Shrivastava, J., and so, in the
light of the majority opinion, it was held that under
Art. 7, the respondents could not be held to be
foreigners.
In regard to the alternative case of the prosecution that the respondents had obtained a Pakistani
passport and so, had lost their citizenship under s. 9( 2)
of the Citizenship Act, the High Court held that it
was a matter which had to be determined by the
Central Government and it is only after the Central
Government decides the matter against the respondents
that the appellant can procerd to expel them from
India. It, however, appears that the High Court
read the order passed by the trial Magistrate a~
amounting to an order of acquittal, and so, quashed
the said order with liberty to the appellant to institute
fresh proceedings against the respondents if and when
considered necessary by it. In fact, as we have already
mentioned, the order passed by the trial Court was
one under s. 249 Cr. P.C. It is against ihis decision
of the High Court that the appellant has c'?m~ to this
Court with a certificate granted by the High Court.
At this stage, we may add that there were eleven
I
I S.C.R.
SUPREME COURT REPORTS 433
other .cases of a similar nature which were tried by
the Magistrate along with the present case and considered by the High Court at the
appellate stage.
Appeals against the companion matters are pending
before this Court, but their fate will be decided by
our decision in the present appeal.
Section 14 of the Act provides, inter alia, that
if any person contravenes the provisions of this Act or
of any order made thereunder, he shall be punished in
the manner prescribed by the section. Clause 7 of the
Order issued under the said Act prescribes that
every foreigner who enters India on the authority of
a visa issued in pursuance of the Indian Passport Act,
1920, shall obtain from the Registration Officer,
specified therein, a permit indicating the period
during which he is authorised to remain in India and
shall, unless the period indicated in the permit is
extended by the Central Government, depart from
India before the expiry of the said period. The
prosecution case is that the respondents having entered
India with a visa have overstayed in India after the
expiration of the visa and the period indicated in the
permit and so, they are liable to be punished under
s. 14 of the Act and cl. 7 of the Order.
It would be noticed that in order that the
respondents should be liable under the said provisions,
it must be shown that when they entered India, they
were foreigners.
In other words, cl. 7 of the order
applies to every foreigner who enters India in the
manner therein indicated ; and that raises the question as to whether the respondents were foreigners
when they entered India. The prosecution contends
that the respondents were foreigners at the relevant
date on two grounds. It is urged that they left India
for Pakistan after January 26, 1950, and so, under
Art. 7 they cannot be deemed to be citizens of India
at the relevant time. The alternative ground is that
they have acquired a passport from the Paki1tan
19~2.
Stall of Madhya
Pradesh
v.
PurMobd.
Gajtndragadkar, J.
1962
Sf,ite nf 1lladh)'a
Prade~h
v
Peer 1\1ohd.
Caje11dragadkar, J.
434 SUPREME COURT REPORTS [1963] SUPP.
Government and as such, they lost the citizenship of
this country under s. 9(2) of the citizenship Act. It
is common ground that the latter question has to b.e
decided by the Central Government, and so, t.h1s
Court is not concerned with it. The only quest10n
which falls for our decision, therefore, is: can the
respondents be said to be foreigners at the relevant
date under Art. 7, because they left India for
Pakistan after January 26, 1950 ? The answer to
this question would depend on the construction of
Art. 7.
In construing Art. 7, it would be necessary to
examine briefly the scheme of the seven Articles that
occur in Part II. These Articles deal with the
question of citizenship.
Article 5 provides that at
the commencement of the constitution, every person
who has his domicile in the territory of India and
who satisfies one or the other of the three tests prescribed by els. (a), (b) and (c), shall be a citizen of
India.
Article 6 deals
with persons who have
migrated to the territory of India from Pakistan and
it provides that they shall be deemed to be citizens
of India at the commencement of the Constitution
if they satisfy the requirements of clauses (a) & (b).
In other words, Art. 6 extends the right of citizenship to persons who would not satisfy the test of
Art. 5, and so, persons who would be entitled to be
treated as citizens of India at the commencement of
the Constitution are covered by Arts. 5 and 6.
Article 7 with which we are concerned provides
that notwithstanding anything in Art<. 5 and 6, a
person who has after March 1, 1947, migrated from
the territory of India to the territory now included in
Pakistan shall not be deemed to be a citizen of India.
The proviso deals with persons who having migrated
to Pakistan have returned to the territory of India
under a permit for resettlement or permanent return,
but with that class of persons we are not concerned
in the present appeal.
Article 8 deals with the
-.
1 S.C.R.
SUPREME COURT REPORTS
435
rights of citizenship of persons of Indian origin who
reside outside India. Article 9 provides
that no
person shall be a citizen of India by virtue of Arts. 5, 6
or 8, if he has voluntarily acquired the
citizenship of.any foreign State.
Articles 10 and 11 then
lay down that the rights of citizenship prescribed by
Arts. 5 and 6 shall be subject to the provisions of any
law that may be made by Parliament; that is to say,
the said rights will continue unless they are otherwise
affected by any law made by Parliament in that
behalf. Article 11 makes it clear that the provisions
of Part II will not derogate from the power of Parliament to make any provision with respect to the
acquisition and termination of citizenship and all
other matters relating to citizenship.
That, in brief,
is the scheme of Part II.
It is urged by Mr. Sen on behalf of the
appellant that where the Constitution wanted to
limit the scope of the Article by reference to the date
of the commencement of the Constitution, it has used
appropriate words in that behalf, and in that connection, he relies on the use of the words "at the
commencement of the Constitution" which occur in
Arts. 5 .and 6.
Article 7 docs not include such a
clause, and so, the migration from the territory of
India to the territory included in Pakistan to which
it refers should not be construed to be limited to the
migration prior to the commencement of the Constitution. Just as 'a person who has migrated to Pakistan
from India prior to January 26, 1950 shall not be
deemed to be a citizen of India by virtue of such
migration, so should a person who has migrated from
India to Pakistan even after the commencement of
the Constitution be denied the right of citizenship.
That is the appellant's case and it is based substantially on the ground that the clause "at the
commencement of the Constitution" is not used by
Art. 7.
1962
State of }v/adlqa
PradeJh
v.
/'ee1 1\fohrf.
Gajendragadkar. J
1!!62
Sta/1 •f Madh7•
Pr11desh
v.
Peer Mrthd.
;;ajendrotadkar, J.
436 SUPREME COURT REPORTS (1963] SUPP.
This argument, however, cannot be accepted
because it is plainly inconsistent with the material
words used in the Article. It will be noticed that a
person who shall not be deemed to be a citizen of
India is one "who has, after the first day of March,
1947, migrated from the territory of India to the
territory of Pakistan." It is true that migration
after .January 26, 1950, would be migration after
March 1, 194 7, but it is clear that a person who
has migrated after .January 26, 1950, cannot fall
within the relevant clause because the requirement
of the clause is that he must have migrated at the
date when the Constitution came into force.
"Has
migrated" in the context cannot possibly include
cases of persons who would migrate after
th~
commencement of the Constitution. It is thus clear
that it is only persons who had migrated prior to the
commencement of the Constitution that fall within
the scope of Art. 7.
The use of the present perfect
tense is decisive against the appellant's contention anG!
so, the absence of the words on which Mr. Sen relics
has no significance. Besides, as the article is worded,
the use of the said words would have been inappro·
priate and having regard to the use of the present
perfect tense, such words were wholly unnecessary.
The proviso to Art.
7 which deals with cases of
persons who having migrated to Pakistan have
returned to India. under a permit for resettlement,
also supports the same conclusion. The migration
there referred to appears to be migration prior to the
commencement of the Constitution.
It is relevant to refer to Art. 9 in this connection.
This Article deals with cases of persons who have
voluntarily acquired the citizenship of any foreign
State and it provides that such persons shall not be
deemed to be citizens of India by virtue of Arts. 5, ll
or 8. Now, it is clear that the acquisition of the
citizenship of any foreign State to which this Article
refers is acquisition made prior to the eommencemrmt
••
,.
1 S.C.R.
SUPR&IU COURT REPORTS
.£37
of the Constitution. "Has voluntarily acquired" can
have no other meaning, and so, there is no doubt that
the application of Art. 9 is confined to the case of
acquisition of citizenship of foreign State prior to the
commencement of the Constitution. In other words,
the scope and effect of Art. 9 is, in a sense, comparable
to the scope and effect of Art. 7. Migration to Pakistan
which is the basis of Art. 7 like the acquisition of
citizenship 0£ any foreign State which is the basis of
Art. 9, must have taken place before the commencement of the Constitution. It will be noticed that
migration from Pakistan to India as well as migration
from India to Pakistan which are the subject-matters
of Arts. 6 and 7 deal with migrations prior to the
commencement of the Constitution. The Constitutionmakers thought it necessary to make these special
provisions, because migrations both ways took place
on a very wide scale prior to January 26, 1950, on
account of the partition of the country.
Migrations
to Pakistan which took place after January 26, 1950,
are not specially provided for.
They fall to be considered and decided under the provisions of the
Citizenship Act; and as we will presently point out,
citizens migrating to Pakistan after the said date
would lose their Indian citizenship if their cases fall
under the relevant provisions of the said Act.
It is true that
a.~ Art. 7 begins with a nonobstante clause by reference to Arts. 5 & 6 and there
is a little overlapping-, The non-obstante ~lause may
not serve any purpose m regard to cases falling under
Art. ~ {c), b'!t suc_h overlapping does not mean that
ther~ is any mcons1stency between the two Articles
a_nd it can, the.refore, have no effect on the construe·
t10n of Art. 7 itself. Therefore, we are satisfied that
Art. 7 refers to migration which has taken place
be~ween ¥arch 1, 1947, and January 26, 1950. That
!Jc:mi;: so, 1t cannot be held that the respondents fall
w~tbm Art. 7 by. virtue of. rhc fact that they
rrngratcd from India to Pakistan some time after
1902
St•ll of M.,U,11
Prad.sh
v.
Pttr Mohd
1962
.State of 1\-fadkya
Pradesh
v.
Peer Aiohd.
Cnjendragadkar, J.
438 SUPREME COURT REPORTS [1963]SUPP.
January 26, 1950, and should, therefore, be deemed ·not
to be citizens of India .
In this connection, it is necessary to add that
cases of Indian citizens acquiring the citizenship of
any foreign State are dealt with by Art. 9, and the
relevant provisions of the Citizenship Act, 1955:. l.f
the foreign citizenship has
been acquired before
January 26, 1950, Art. 9 applies; if foreign citizenship
has been acquired subsequent to .January 26, 1950,
and before the Citizenship Act, 1955 came imo force,
and thereafter, that is covered by the provisioJls of
the Citizenship Aet, vide Izhar Ahmed Khu,n v. Union
of India('). It is well-known that the Citizenship Act
has been passed by the Parliament by virtue of the
powers conferred and recognised by Arts. J 0 and H
of the Constitution and its relevant provisions deal
with the acquisition of citizenship of Indi.a as well as
termination of the said citizenship. Citizenship of
India can _be terminated either by renunciation under
s. 8, or by naturalisation, regiitration or voluntary
acquisition of foreign citizenship in any other mann\:I',
antlers. 9, or by deprivation under s. 10. The question about the citizenship of persons qugrating to
Pakistan from India after January 26, 1950, will bave
to be determined under these provisions of the Citizenship Act~ If a dispute arises as to whether an Indian
citizen has acquired the citizenship of another .i:;ountry
it !).as to be determined by such authority and in such
a manner and having regard to such rules of eviden~e
as may be prescribed in that behalf.
That is the
effect of s. 9(2). It may be added that the rules prtlScribed in that behalf have made the Central Government or its delegate the appropriate authority to deal
with this question, and that means this particular
question cannot be tried in courts.
The result is that the respondents cannot be said
to be foreigners by virtue of their migration to Pakistan
after January 26, 1950, and that is the only question
I) [1962) Supp. 2 S.C.R. ~.
' "
1~§,Q,R .. .. SUl,lll:&ME, ,COURT.~ '.'J?ORtS
439
_·- .• ':;
-:
J ",•""
.. ··.\ ~
.: .: ·'
•. \) : .. -.
-·_
.
::·
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.-~. -~
which can be tried in courts. If the State contends
(h,aJ the :responden.ts have lost their citizenship ;M
India under s. 9 ( 2) of the Citizenship · Act, it is . open.,
to the appellant to move the Central Government to
consider and determine the matter.. and if the decision of the Central Government goes against the res-•
p6ndents, it -may be competent to the appellant td
tak~ app_ropriate a,cti?n against tpe respondents,. So,
far as . the appellants case agamst the respondents
under Art. 7 is concerned, the High Court was right
in 'holding that the· respondents were not foreigners
Within the ·meaning of c.l: 7' of the Order and call.flcit;
thetefore, be prosecuted .under s. 14 of the .Act. '.(be
appeal accordingly fails and is dismissed.. . • '
'
Appeal dismissed:
.
M.· R. BALAJI . AND OTHERS .
;,
v.
STATE. OF MYSORE
.•
(B. P. SniIIA, c. ]., P. B. GAJE~DRAGADKAR,~
K, N. WANCHOO, K. C. DAS GUPTA and
]. C. SHAH, JJ.)
. , , . . . Admission into O~lleges~Reservation of seats for ·socially
1<114:. educationally . bachurard c/,asses gnd Sohedukd Castes· and
·Schedukd.
Tribes~Scope
of~Directive Principles-Supr.ern•
(Jourt not to fix pe<~tage-Oonstit'!'tion of India, Arts. 15. (4),
)6.(4),29>(2),46,340. '.·' .
'·•. · ..
· · ·· On July 26, 1958, the State of Mysore . fasued an order
tl:!at ·all the· communities excepting the Brahm in community;
fell within the definition of educationally and socially backward
!'la.ss(!S _aI\d Scheduled Castes _and Schedul_ed Tribes _'and 75% of
,~~J~ in ,~du~atio_nal_-institutio1:1-~· -~er~ J..:~~eryed for t\1.em ... ,_;~irpjJ11r
9(ders}"eservmg seats, V{ere .. 1_s':ued . on. May 14, 1,959 ,JU!~ ,4~,
~:.'\. .. "r':'.\' It . ..-.
~·.o·.--
.
~·~
-
.· ~;, _,·._ ..
~ '.i
1962
.~tate ~/Madhya
Priilleih
i<··~,~-.:~v.~·-, . ·, i_
Pe_er Xtfohd.
-,~_;;_p._.:·:.:·-
Gajendragadkar, J.
1962
·September, 28.