LexSTATE OF ANDHRA PRADESH versus ABDUL KHADER
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
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 indica-
Paikaji f{olhe
ted it is not disputed that if Art. 31A applies there
Yavatmal
can be no further challenge to the validity of the im-
v,
pugned statute.
·1 he State of
The writ petitions accordingly fail and are dismiss-
Bomhay
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-Citizen-
ship 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 respon-
dent had stayed beyond the time specified in the visa, he was on
September 3, 1957, served with an order made by the Govern-
ment 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 magis-
trate rejected this defence and convicted him holding (a) that
the fact that the respondent obtained a Pakistan passport prov-
ed 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 respon-
dent was a foreigner and under s. 8 of the Foreigners Act, such
a decision was final.
An appeal by the respondent was dismiss-
ed 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 respon-
dent, an Indian national, had disowned his nationality and
acquired Pakistan nationality for under s. 9(2) of the Citizen-
ship Act, 1955, that decision could only be made by the pre-
scribed authority which under the Rules framed under the Act
was the Central Government. The fact that the Central Govern-
ment 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 Foreig-
ners 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 IndianExcerpt shown. Read the full judgment & AI analysis in Lexace.