UNION OF INDIA versus GRAUS MOHAMMAD

Citation: [1962] 1 S.C.R. 744 · Decided: 04-04-1961 · Supreme Court of India · Bench: BHUVNESHWAR PRASAD SINHA · Disposal: Appeal(s) allowed

Cited by 2 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

744 
SUPREME COURT REPORTS 
[1962] 
Though we are upholding the decision of the High 
Court, we wish to observe that we do not do. so for the 
The State of 
Andhra Pradesh reasons mentioned by it. It is unnecessary to discuss 
z96r 
v. 
those reasons but we would like to point out one 
Abdul Khad" thing, namely, that the High Court seems to have 
Sarkar ]. 
April 4· 
been of the opinion that Art. 7 of the Constitution 
contemplates migration from India to Pakistan even 
after January 26, 1950. 
We desire to make it clear 
that we should not be taken to have accepted or en-
dorsed the correctness of this interpretation of Art. 7. 
The reference in the opening words of Art. 7 to Arts. 
5 and 6 taken in conjunction with the fact that both 
Arts. 5 and 6 are concerned with citizenship (at the 
commencement of the Constitution) apart from vari-
ous other considerations would appear to point 
to the conclusion th11t the migration referred to in 
Art. 7 is one before January 26, 1950, and that the 
contmry construction which the learned Judge has 
put upon Art. 7 is not justified, but in the view that 
we have taken of the facts of this case, namely, that 
the respondent had never migrated to Pakistan, we 
do not consider it necessary to go into this question 
more fully or finally pronounce upon it. 
In the result we dismiss the appeal. 
Appeal dismissed. 
UNION OF INDIA 
v. 
GRAUS MOHAMMAD 
(B. P. SINHA, C. J., S. K. Das, A. K. SaRKAR, 
K. C. Das GUPTA and N. RAJAGOPALA AYYANGAR, JJ.) 
Externinent Order-Foreigner or Indian Citizen-Burden of 
proof-Law applicable-Citizenship Act, I955 (LV II of 1955), 
s. 9-Foreigners Act, z946 (IJ of z946), ss. 3(2)(c), 9· 
An order had been made under s. 3(2)(c) of the Foreigners 
Act, 1946, directing that the respondent, "a Pakistan national 
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1 
I S.C.R. 
SUPREME COURT REPORTS 
745 
shall not remain in India after the expiry of three days'". The 
r96r 
respondent moved the High Court of Punjab under Art. 226 of 
. 
. 
the Constitution to quash the order contending that he was not Union of Indta 
a Pakistan national. The High Court held that if there was prima 
v. 
facie material to shO\V that a person was a foreigner, a civil Ghaus ll!ohamtnad 
court would not go into the question whether he was a foreigner 
for under s. g of the Citizenship Act, r955, that question had to 
be decided by the prescribed authority which under the Rules 
framed under the Act, was the Central Government. The High 
Court c;ime to the conclusion that there was no prima facie 
material on the basis of which an order under s. 3(2)(c) of the 
Foreigners Act could be passed against the respondent and in 
that view quashed the order. On appeal by the Union of India 
by special leave, 
Held, thats. 9 of the Citizenship Act dealt with the termi-
nation of the cit!zenship of an Indian citizen and had no appli-
cation to this case as the Union did not contend that the res-
pondent had been an Indian citizen whose citizenship had 
terminated. 
Section 8 of the Foreigners Act which made the decision 
of the Central Government on a question of the nationality of 
a foreigner who is recognised as its national by more than one 
foreign country or whtn it is uncertain what his nationalitY is 
final, also did not apply as the only question in this case was 
whether the respondent was a foreigner or an Indian Citizen. 
The case was governed by s, g of the Foreigners Act under 
which when a question arises whether a person is or is not a 
foreigner, the onus of proving that he is not a foreigner is 
on that person. 
The High Court was in error in placing on the Union of 
India the burden of proving that the respondent was a 
foreigner. 
CRIMINAL 
APPELLATE 
JURISDICTION: 
Criminal 
Appeal No. 37 of 1960. 
Appeal by special leave from the judgment and 
order dated the April 7, 1958, of the Punjab High 
Court (Circuit Bench) at Delhi in Criminal Writ 
No. 57-D of 1957 . 
. M. 0. Setalvad, Attorney-General of India, B. Sen 
and T. M. Sen, for the appellants. 
H. L. Anand and Janardan Sharma, for respon-
dent. 
1961. 
April 4. 
The Judgment of the Court was 
deHvered by 
ll.\ 
746 
SUPREME COURT REPORTS 
[1962] 
I96r 
SARKAR, J.-This is an appeal by the Union of 
~ 
India from a i"udgment of the High Court of Puni"ab 
Union of India 
v. 
allowing the respondent's application under Art. 226 
Ghaus Mohammad of the Constitution for a writ quashing an order made 
against him on January 29, 1958, under s. 3(2)(

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