FIDA HUSSAIN versus STATE OF UTTAR PRADESH

Citation: [1962] 1 S.C.R. 776 · Decided: 05-04-1961 · Supreme Court of India · Bench: BHUVNESHWAR PRASAD SINHA · Disposal: Appeal(s) allowed

Judgment (excerpt)

April 5-
776 
SUPltEME COU:lt'l' ltEPOltTS 
(1962] 
FIDA HUSSAIN 
v. 
STATE OF UTTAR PRADESH 
(B. P. SINHA, c. J., s. K. DAS, A. K. SARKAR, 
K. C. DAS GUPTA and 
N. RAJAGOPALA AYYANGAR, JJ.) 
Foreigner-Pakistani entering India in r953-Whether a 
foreigner-Foreigners Act, r946 (Jr of r946), s. z (a), 
The appellant was born in India before the partition. He 
left for Pakistan and returned lo India in 1953 on a Pakistani 
passport and Intlian visa. He did not return to Pakistan before 
the expiry of the period for which he was permitted to stay in 
India under the visa. He was convicted for a breach of para-
graph 7 of the Foreigners Order, 1948, which required every 
"foreigner" entering India to depart from India before the 
expiry of the period during which he was authorised to remain 
in India. 
Held, that the appellant was not a foreigner on the date 
of his entry into India and his conviction was bad. On the 
relevant date the appellant was a natural born British subject 
withins. r(1)(a) of the British Nationality and Status of Aliens 
Act, 1914, and consequently was not a foreigner as defined in 
s. z(a) of the Foreigners Act, 1946, as it then stood. 
CRIMINAL 
APPELLATE 
JURISDICTION: 
Criminal 
Appeal No. 129 of 1960. 
Appeal by special leave from the judgment and 
order dated March 9, 1960, of the Allahabad High 
Court in Criminal Revision No. 697 of 1959. 
N aunit Lal, for the appellant. 
• 
G. G. Mathur and G. P. Lal, for the respondent. 
1961. April 5. 
The Judgment of the Court was 
delivered by 
SARKAR, J.-The appellant who had earlier left 
India, returned on a passport granted by the Govern-
ment 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 extended upto November 15, 
1953. He did not, however, return to Pakistan within 
that date upon which he was convicted under s. 14 of 
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1 s.c.R. StJPREME COURT REPORTS 
777 
the Foreigners Act, 1946, by a Sub-Divisional Magis-
trate on March 14, 1959, and sentenced to rigorous 
imprisonment for one year. His appeal to a Sessions 
Judge was dismissed and the High Court at Allahabad, 
on being moved in revision, refused to interfere with 
the order of the Sessions Judge. This appeal is against 
the judgment of the High Court. 
The appellant had been convicted for breach of 
paragraph 7 of the Foreigners Order of 1948, issued 
under s. 3 of the Foreigners Act. 
That paragraph 
requires that every foreigner entering India on the 
authority of a visa issued in pursuance of the Indian 
Passport Act, 1920, 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 earlier stated, the visa on the appellant's 
passport showed that he had permission to stay in 
India till November 15, 1953 but he stayed on after 
that date. Hence the prosecution. 
It is contended on behalf of the appellant that he 
could not be convicted of a breach of paragraph 7 of 
the Foreigners Order for that paragraph applies to a 
"foreigner" entering India on the authority of a visa 
issued in pursuance of the Indian Passport Act and 
overstaying the period for which he is permitted to 
stay in India. It is contended that the foreigner con-
templated in this paragraph is a person who was a 
foreigner on the date of his entry into India. The 
appellant says that on that date he was not a foreig-
ner and, therefore, the provisions of the paragraph 
do not apply to him. This contention of the appellant 
is plainly correct. The paragraph contemplates a 
foreigner entering India, and therefore, a person who 
at the date of the entry was a foreigner. 
Now, the word "foreigner" in paragraph 7 has the 
same meaning as that word has in the Foreigners Act. 
The word "foreigner" is defined in that Act in s. 2(a) . 
That definition has changed from time to time, but 
we are concerned with the definition as it stood in 
98 
r96r 
Fida f--1_ussain 
v. 
S!afc of 
Vitar r•radesh 
Sarkar ]. 
r961 
Fida liussain 
v. 
State of 
Uttar Pradesh 
Sarliar ], 
778 
SUPREME COURT REPORTS 
[1962] 
1953 when the appellant entered India, which was in 
these terms: 
,,c 
. 
'' 
h 
1ore1gner means a person w o ........ . 
(1) is not a natural-born British subject as defined 
in suli-s

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