SIRAJUL HOQUE versus THE STATE OF ASSAM & ORS.

Citation: [2019] 3 S.C.R. 1047 · Decided: 14-02-2019 · Supreme Court of India · Bench: R.F. NARIMAN · Disposal: Appeal(s) allowed

Judgment (excerpt)

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SIRAJUL HOQUE
v.
THE STATE OF ASSAM & ORS.
(Criminal Appeal No. 267 of 2019)
FEBRUARY 14, 2019
[R. F. NARIMAN AND VINEET SARAN, JJ.]
Foreigners’ Act, 1946:
s.9 – Burden of proof – Citizenship status of proceedee –
Appellant declared foreigner by the Foreigner’s Tribunal holding
that there was discrepancy in the name of the grandfather – Upheld
by the High Court – On appeal held: Appellant’s great grandfather’s
name and father’s name appear the same throughout the document
– However, only discrepancy is found in grand father’s name – In
some of the documents Kefatullah later became Kematullah and in
NRC Registration details of the year 1971, grandfather noted to be
Kefatullah – Appellant also produced Permanent Account Number,
including photo identity cards issued by the Election Commission
of India, identity cards issued to his brother including voters lists in
which his name appears – In view thereof, it cannot be said that
Kematullah is not the same despite being named Kefatullah in some
of the documents – Grandfather and fathers’ identity etc. established
successfully by the appellant – Further, the mere fact that the father
may later have gone to another village is no reason to doubt this
document – Thus, the judgment of the High Court as well as
Foreigner’s Tribunal set aside.
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 267 of 2019.
From the Judgment and Order dated 13.06.2017 of the High Court
at Guwahati (The High Court of Assam, Nagaland, Mizoram and
Arunachal Pradesh) in W.P. (C) No. 1011 of 2017.
Pijush K. Roy, Mrs. Kakali Roy, Rajan K. Chourasia,  Advs. for
the Appellant.
Tushar Mehta, SG, Ms. Madhvi Diwan, ASG, Shuvodeep Roy,
Riju K. Sarkar, Ms. Aishwarya Bhati, Ms. Shraddha Deshmukh,
Damodar Solanki, B.V. Balaram Das, Advs. for the Respondents.
[2019] 3 S.C.R. 1047
1047
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1048                    SUPREME COURT REPORTS            [2019] 3 S.C.R.
The Judgment of the Court was delivered by
R. F. NARIMAN, J. 1. Leave granted.
2. The present appeal raises an issue as to whether the appellant
herein has been declared to be a foreigner incorrectly.  By the Foreigner’s
Tribunal judgment dated 19.01.2017, after referring to some of the
documents produced by the appellant, and after finding that there was a
discrepancy in the name of the grandfather and the fact that the
grandfather and the father later lived in different villages, the Tribunal
declared the appellant to be a foreigner.  The High Court dismissed the
writ petition filed against the same judgment  stating:
“Having said that we may look into the written statement filed by
the petitioner before the Tribunal.  In a proceeding before the
Foreigners’ Tribunal where the citizenship status of the proceedee
is being questioned, that too, by the State, the proceedee must
disclose all material facts within his special knowledge relevant
for establishing his citizenship at the first instance itself i.e., in the
written statement.  In other words, he must be able to plead about
his identity as a citizen of India.  This would be as per the
requirement of Section 9 of the Foreigners’ Act, 1946, which is in
pari materia to the provision of Section 106 of the Evidence Act,
1872.  Thereafter, the material facts pleaded in the written
statement are required to be proved in accordance with law by
adducing cogent and reliable evidence.  In the written statement,
petitioner did not even mention his name; not to speak of his date
of birth or year of birth.  All that he stated was that he was born
at Village-Sagolchora in the district of Dhubri and that his parents
were voters in the voters’ list of 1997.  His grand-parents were
voters of 1966-1970.  Only in the verification column, he described
his name as Sirajul Haque.  This is all that the petitioner stated in
the written statement.  This is not only inadequate but does not in
any manner lead to the identification of the petitioner as an
individual, not to speak of identification of the petitioner as a citizen
of India.  It is not a case of violation of the principles of natural
justice or procedural impropriety.  Neither can it be said to be a
case of perversity.”
3. We have heard learned counsel for both sides extensively and
have gone through the documents produced by the appellant ourselves.
On a perusal of the same, we find that a number of documents have
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been relied upon by the appellant starting with a voters’ list of his
grandfather Kematullah in 

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