LexSTATE OF U. P. versus RAHMATULLAH
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494 A B c D E F G STATE OF U. P. v. RAHMATULLAH April 23, 1971 [S. M. SIKRI, C. J., P. JAGANMOHAN REDDY AND I. D. DUA, JJ.J Foreigners Act (31 of 1946), s. 14-Prosecution under-No detennilla- tion by Central Govern1nent of accused's nationality under Citizenship Act, 1955, before prosecution- Legality of prosecution. The respondent was a citizen of India at the commencement of the Constituti9n in 1950. He entered India on April 1, 1955, with a Pakistani passport dated Mar.ch 15, 1955, and overstayed in India beyond the permit- ted period. He was arrested in 1963 and was charged with an offence under s. 14 of the Foreigners Act, and convicted. While the criminal pr·J· ceedings were pending, the Central Government, under s. 9(2) of the Citi- zenship Act, 1955, read with r. 30 of Citizenship Rules, 1956, determin· ed on November 5, 1964, that the respondent had acquired citizen5hip of Pakistan after January 26, 1950, and before March 15, 1955. The High Court set aside the conviction. On appeal to this Court, HELD: (1) The respondent was not a 'foreigner' within the meaning of the Foreigners Act before its amendment in 1957. [500 G-H] (2) Having been a citizen of India at the commencement of the Con- stitution and not being a foreigner under the Foreigners Act at the date of his entry, till the Central Government determined the· question of the respondent having acquired Pakistan nationality and thereby lost Indian nationality, he could not be treated as a foreigner and no penal act!on could be taken against him. [497 G; SOl A-BJ · (3) The order of the Central Government dated November 5, 1964 determining that the respondent was a Pakistani was final, but the deter· ruination by the Central Government c,ould not have the effect of retro:5- pectively rendering his stay in India before that date a penal offence. It \Vas not as if he was given any directions after November S, 1964, which were disobeyed by him entailing his prosecution. [501 C-E] CRIMINAL APPELLATE JURISDICflON: Criminal Appeal No. 167 of 1968. Appeal from the judgment and order dated January 18, 1968 of the Allahabad High Court in Criminal Revision No. 1482 of 1966. 0. P. Rana, for the appellant. Bashir Ahmed and S. Shaukat Hussain, for the respondent. H The Judgment of the Court was delivered by Dua, J.-The State of U.P. has appealed to this Court on certificate of fitness granted by the Allahabad High C<Jurt from u. P. STATE •• RAll:llATULLAH (Dua, J.) that court's order dated January 18, 1968, 8':quitting the respond- ent of an offence punishable under s. 14 of the Foreigners Act (Act No. 31 of 1946). This appeal was originally heard by us on January 11 & 14, 1971. when it was considered desirable to send for the original records of the case from the courts below and also to call for. the file relating to the inquiry held by the Central Government under s. 9(2) of the Citizenship Act (Act No. 57 of 1955) into the question of the acquisition of citizen· ship of Pakistan by the respondent. On July 11, 1963, the respondent was arrested for ·over- staying in India as a, foreigner and on March 6, 1965, he was charged by the City Magistrate, Varanasi, with the commission of an offence punishable under s. 14 of the Foreigners Act (Act No. 31 of 1946). The charge reads : "I, D. S. Sha-rma, City Magistrate, Varanasi, hereby charge you Rahmatullah as follows :~ That you being a Pakistani Citizen entered into India on 1-4·55 on Pakistani Passport No. 283772 da.ted 15-3-55 and Indian visa No. 16326 Category C dated 22-3-55 and got your extension to stay in India up to 25-5-56 after which date you are overstaying in India illegally without any passport and visa : and thereby committed an offence punishable u/s 14 of Foreigners Act within my congnizance, and hereby I direct you to be ·tried on the said .charge by me." According to the prosecution case against the respondent as put in the Trial Court, he was a Pakistani nationa,l and had on April I, 1955, entered India on a Pakistani passport dated March 15, 1955, and an Indian Visa dated March 22, 1955, obtained by him as a Pakistani national, but even after the expiry of the per- mitted period he was overstaying in India without a valid pass- port or visa.. The original visa, it is not disputed, expired on June 21, 1955, but it was extended thrice, the last extension being valid only up to May 25, 1956. Thereafter the respondent went
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