LexSTATE OF GUJARAT versus YAKUB IBRAHIM
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572
STATE OF GUJARAT
YAKUB IBRAHIM
D~cember 3, 1973
[M. i-f. BEG ANDY. V. CHANDRACHUD, JJ.J
Citi;ens/Jip Act, 1955, Sectioll 9(:!.)-Cmtra( Go:·t.'s deci.•ion 011 wlretlz~r a ptrson
''"' acquired fomi:n citiUIIShip or not-Forerguer ": Art, 1946, S. 14-Ford~:tur's
Ordu 1958 clause 1(iii)-Pfea of tire G_CfUUd_that wrtfrout rlre dett"rminatiotr by t/,.
Central Gou:rnmeul u{s 912} of t~rt ~~~IZ~nsfuP_ Act procud~ngs under _lire Forei_~nrrs
Act incomp~t~11t-Court !Ja:r 110 jurt'sdtcrron elfhtr to arqmt or rom·tct rite arcustd
wit/rout tire prior decision of tire Centro/ Govemmtlll 11/s !1(:!.) of the Citiz<"mlrip Act.,
The respondent was prosecute~ un?er clause 7(iii) of the Forei~ncr's Order,
195S read with Sec. 14 of the Foreosner s Act, 1946 for over stnymg on lndia arter
tbe expiration of the permit. The respondent had entered India on a Pakistani
passport. At the trial, the re.po~dent prodU<Xd evidence to show that he was a
citiztn of India when the Consututron came onto force on 26-1-1950 and never
miuated to Pakistan to obtoin the citizenship of that country. Hy- further stated
that he bad to obtain the Pakistani rassport against IY.IS volition, The respon-
dent further urged that Wllhoul the decision of the Central ao,·cmment u's 9Q)
of the Citi1~nsbip Act as to whether he has acquired Paki~tnni citin:nship or not,
the pro=ution under the Foreigner's Act "'"' mcompetent. The trial Magistr.11e
~cquitted the respondent, holdmg that he had pro1·cd that he wa~ an Indian citizen
who never migr•«<d to Pakrstan. The l·lr~th Court upheld the acquittal as it thought
that the prosecution had not proved the only """' .et up by it namely that the rcs-
pondent was not an Indian citizen on 26-1-1950.
Quashing the char~e and ~ltin~ aside the acquitt:JI,
HELD :(I) The real and deci~ive question to be cnsidcred and decided 11-.s not
whether the respondent possessed lnd•an nationaloty and citizenship on 26·1-19l0
but whether he had lost that nationality at the time when he entered this country
on l'ak"tani passport. Without 11 decision of the Ccntml Government under St<:·
tion 9(2) of the Citin:nship Act on that question, the Criminal Court had no juris-
diction to acquit or convict a rcr>an.
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(IJ) After havin' cXllmined the charec framed, the c:r-.es ~t up by the t"o sides.
the contcnt.ions ad1aDC<d in the trral court, the grounds of aprcal of the Hrch Cou~t
and tho<oe m tile snec••l leave peuuon, v.e thmk that the que~tion res;~rdrn' acqwsr·
tion of foreign cmz.eo~hip by the respondent w~s the decisive question. The res-
pondent had himself rai<oed the pic~ although he ~ave an impression that the prose-
cution was invitio~: a decision on the legality of the order of acqu•llal without ol>-
t•inin' a prior decision of the Central Government under Sec. 9(2) of the Citiz~n
>hip Act. It wa\ not proper for the pru=utini authorui~ to ha1·e procccUtd .wrlh
a cast 'Oiithout the determrnation of the said question under sec. 11(2) of the Crt11en·
>hip Act. (577 Dl
(11!} In view of the crroneou• procedure adopted on behalf of the State in pres-
sine for a conviction without obtainrna a decision from the
appropriate autho-
rity, qua~hioa of the char~e it>Clf is the correct ord<·r. This would Jeare the Sr~te
free to foUow the prorcr pr~dure under law regnrding the acquisition of forctJn
c•tittn~ip by the re,pon<Jcnt and then to prosecute tho re<pondent. (Sn Ill
Stott of 1"dftrn Prad.sh v. AI•Ju/ Kftotlu f 1%2) 1 S.C.R. 737, Ai>dul Sctllo~ vi
Stolt of G:rJnrat A.J.R. l96S S, C. 810 and Akbad/ia/1 v. IJ!fiOII of Indio [196-J
S.C.R. 17Y, fullov.ed.
Ku/othlbnonrmu v. Stott of Krrufa (1966)3 S.C.!{. 706, rtferred to.
ClmttNAt, APPI'I.LATE JJJI\tSmcnoN: Criminal ApJlCal No. 164 of
1970.
Appeal by special leave from the judgment ami order dated the Jr~{
..Cth December, !969 of the Gujarat High Court in Criminal Ap!'C·'
f\:o. 295 of 19Mi.
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OUJAP.AT V. YAKUB (Beg, /.)
573
R. H. Dhebar and S. P. Nayar, for the appellant.
A. S. Qureshi, Vimal Dave and Kailash Mehta for the respondent.
The Judgment of the Court was delivered by
BEo, J.~This is an appeal, by special leave, against the acquittal
of the appellant, from a charge framed on 21·9-1967 as follows:
"That you on or about the 31st day of March 1967 at
about 9 ·30 p.m. were found in State Transport Corporaw
tion Workshop at Naroda in Ahmedabad, and you are a
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