ORDER
Ramratna Singh, J
1. The petitioner was convicted by a Magistrate under Section 14 of the Foreigners Act and sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs. 200 or in default, to undergo further rigorous imprisonment for six months. On appeal, the Sessions Judge upheld the conviction, but reduced the substantive period of imprisonment to three months’ simple and affirmed the sentence of fine.
2. The facts established in this case are these. The petitioner went over to Pakistan from his native place in Midnapur district of West Bengal on the 12th December, 1947, and he worked in several Government offices in Pakistan as a motor vehicle driver. He obtained a Pakistan passport on the 24th March, 1957, at Khulna in East Pakistan. Sometime in 1960 he surrendered this passport in the office of the Deputy High Commissioner for Pakistan in India at Calcutta and came to Jamshedpur and began to live there. In December, 1960, he made an application under Section 5(1) of the Indian Citizenship Act, 1955, for registration as a citizen of India. This application was rejected. The Government of Bihar issued a notice, directing him not to remain in India after the 16th March, 3961, and to leave India by land route. By a letter dated the 17th June, 1961, issued from the office of the Superintendent of Police, Jamshedpur, his period of stay in India was extended for three months, with effect from the 30th June, 1961, but he continued to stay in spite of the service of this order, in India, without any valid document or residential permit Again, by letter dated the 22nd August, 1961, the Superintendent of Police directed him to secure necessary travel documents from the Pakistan Mission in India by the 5th September, 1961, failing which he would be deported from India. He failed to comply with this direction also, and, thereafter, the instant case was started against him under Section 14 of the Foreigners Act.
3. The petitioner’s defence was that he was an Indian National, born and brought up in Midnapur district. He had no intention to reside in Pakistan, but he went there in search of better employment. His entire family was residing in Midnapur district throughout, and he has again applied to the Government of India for granting him Indian citizenship. He, therefore, contended that the Bihar Government or the Superintendent of Police, Jamshedpur, had no jurisdiction to direct him to leave, India.
4. The first contention of the learned Advocate for the petitioner was that tie could not be asked to leave India unless the Central Government determined his national status under Section 9(2) of the Citizenship Act. But the Central Government had in April 1962, already intimated the Bihar Government as well as the sub-divisional officer of Jamshedpur that, as the petitioner, Abdur Rahman, could not be deemed to have become an Indian citizen under the provisions of the Constitution of India and subsequently alleged to have lost it, there was no question of determining his national status under the aforesaid provisions of the Citizenship Act. The learned Advocate submitted that this view of the Central Government was incorrect. There is no force in this contention, in view of the latest decision of the Supreme Court in State of Madhya Pradesh v. Peer Mohd., AIR 1963 SC 645. Their Lordships said that Article 7 of the Constitution refers to migration, which has taken place between the 1st March, 1947, and the 26th January, 1950, and thai question of citizenship of persons migrating to Pakistan from India after the 26th January, 1950, will have to be determined under the provisions of the Citizenship Act. Their Lordships followed their earlier decision in Izhar Ahmed Khan v. Union of India, AIR 1962 SC 1052, which deals with the question, in what circumstances the provisions of the Citizenship Act come, into play.
It is clear from these decisions that all cases of migration from India to Pakistan prior to the 26th January, 1950, and after the 1st March, 1947, are governed by Article 7 of the Constitution and not by any provision of the Citizenship Act. In the instant case, the petitioner left India for Pakistan in December, 1947. Therefore, the provisions of Section 9 or any other Section of the Citizenship Act cannot apply.
5. In view of the Supreme Court decision, the learned advocate for the petitioner conceded that Article 7 of the Constitution would alone apply to this case. This article reads as follows:
“Notwithstanding anything in Articles 5 and 6, a person who has after the first day of March, 1947, migrated from the territory of India to the territory now included in Pakistan shall not be deemed to be a citizen of India ;
Provided that nothing in this article shall apply to a person who, after having so migrated to the territory now included in Pakistan, has returned to the territory of India under a permit for resettlement or permanent return issued by or under the authority of any law and every such person shall for the purposes of Clause (b) of Article 6 be deemed to have migrated to the territory of India after the nineteenth day of July, 1948.”
The proviso does not apply to the instant case, as admittedly the petitioner had no permit for resettlement or permanent return to India. The learned Advocate, however, contended that the petitioner had not ‘migrated’ from the territory of India to Pakistan in December 1947, or at any time thereafter, because he had left his family at his paternal home in Midnapur district of West Bengal, and he had gone to Pakistan in search of some employment only and did not settle there. In support of his contention, he relied on some decisions, namely, Shabbir Hussain v. State of U. P., AIR 1952 All 257, S.M. Zaki v. State of Bihar, AIR 1953 Pat 112, Abdul Shakoor v. Custodian of Evacuee Property, AIR 1954 Mysore 152, Iqbal Ahmad v. State of Bhopal, AIR 1954 Bhopal 9 and State of Andhra Pradesh v. Abdul Khader, AIR 1961 SC 1467.
In the Allahabad case, it was held that the word ‘migrated’ in Article 7 seems to have been used in the sense of departure from one country to another with the intention of residence or settlement in the other country, and a temporary visit to another country on business or otherwise cannot amount to migration. At the same time, their Lordships of the Allahabad High Court observed that the fact that a person has migrated from one country to another or has gone there on a temporary visit is a question of fact, which will have to be decided on the circumstances of each case). In that case, the petitioner was born and brought up in the district of Bijnor in the Uttar Pradesh. He was carrying on cloth business. He sent some of his goods to Lahore in Pakistan and in order to dispose them he went to Lahore for two months. Before his departure from Bombay to Pakistan and within the period of his temporary visit to Pakistan he expressed his intention that he was going there on a temporary visit and would return home after finishing his business; and he did not return to India after finishing his business. In these circumstances, it was held that this temporary visit did not amount to migration within the meaning of the word used in Article 7. The Mysore High Court followed the aforesaid decision of the Allahabad High Court. After referring to the facts of the Allahabad case, their Lordships said that the case before them was a stronger one, inasmuch as tha appellant had gone to Pakistan and returned on temporary “no objection certificates.” The case before the Mysore High Court was one in relation to the Mysore Administration of Evacuee Property (Emergency) Act of 1949.
The learned Judicial Commissioner of Bhopal also, followed the Allahabad decision. It is unnecessary to state the facts of that case, as the person concerned in that case had gone to Pakistan from India after the 26th January, 1950. Izahar Ahmad Khan, the parson concerned in that case, had gone to the Supreme Court as well, and his petition was considered in AIR 1962 SC 1052. Their Lordships of the Supreme Court pointed out that in asmuch as Izhar Ahmad Khan had left for Pakistan after the 26th January, 1950, the relevant provisions of tha Citizenship Act would apply to his case, and the Central Government alone was to decide whether he was a foreigner or an Indian citizen. The Patna case also followed the Allahabad decision for the interpretation of tise word ‘migrated’ in Article 7 of the Constitution. This question was. considered in the Patna Case in order to decide only what was the meaning of the word ‘left’ in Section 2(d)(1) in the definition of the word ‘evacuee’ contained in the Administration of Evacuee Property Act, 1950.
6. In this connection, a decision of the Supreme Court, in the State of Bihar v. Kumar Amar Siugh, 1955-SCR 1259 : ( (S) AIR 1955 SC 282), is important. In that case, the question arose whether Kumar Rani Sayeeda Khatoon had migrated from the State of Bihar in India to Pakistan before the 26th January, 1950, within the meaning of the word ‘migrated’ in Article 7 of the Constitution. Certain facts were found to have been established; in the case, namely, (1) Kumar Rani went to Karachi in July, 1948. (2) Her story that she went there temporarily for medical treatment has been doubted by the High Court and appears to us to be unfounded, (3) When she came to India in December, 1948, she did so on a temporary permit stating in her application for the said permit that she was domiciled in Pakistan and accordingly representing herself to be a Pakistani national. (4) She went bach to Pakistan in April, 1949, on the expiry of that temporary permit. (5) She made an attempt to obtain a permit for permanent return to India only after steps had been taken to vest the property in the custodian and after the same was taken possession of. On these facts, their Lordships said that Kumar Rani Sayeeda Khatoon must be held to have migrated from the territory of India after the 1st. March, 1947.
7. In the instant case, the admitted fact is that the petitioner left India for East Pakistan in December, 1947, and was employed there in Government service. He obtained a Pakistani passport on the 24th March, 1957, at Khulna in East Pakistan. Sometime in 1960 he came to Calcutta in India with that passport and surrendered it at the office of the Deputy High Commissioner for Pakistan in India and thereafter began to live in a Mahalla at Jamshedpur. There is nothing on the record to show whether the petitioner had obtained any visa or not; but it was conceded at the Bar that he must have obtained some visa under the statutory rules before coming from East Pakistan t6 Calcutta in 1960. The question is whether these facts justify the conclusion that the petitioner had ‘migrated1 to Pakistan before the 26th January 1950, within the meaning of that word in Article 7 of the, Constitution, in spite of the fact that tie had left his wife aid, children at his paternal place in Midnapur. In my opinion the fact that the petitioner remained continuously in Pakistan for about 13 years and came to Calcutta in 1960, after having obtained a Pakistani passport in March, 1947, shows that he had migrated to Pakistan before January 1950.
It is well settled that the Pakistani passport obtained by a person furnishes prima facie evidence that he was a Pakistani citizen. This view is supported by some decisions. In Mohammad Abdali v. State of Bihar, 1959 BLIR 584 : (AIR 1960 Pat 98), a Bench of this court, after having considered certain English decisions and the legal position in America, came to the conclusion that the Pakistani passport was a prima facie evidence that the petitioners in that case were foreigners within the meaning of the Foreigners Act, 1956. tn Dawood Ali v. Dy. Commr. of Police, AIR 1958 Cal 565, Sinha, J. said that, though a passport by itself is not a conclusive proof of nationality, it is accepted as a proof of the fact, by international agreement and the comity of nations. In that case, a Muslim, who was an Indian national, migratad to Pakistan in 1950 on account of communal disturbances and having gone there, applied and obtained a Pakistani passport on making a declaration affirming that he was a Pakistani national. It was held that he acted with deliberation in renouncing his Indian Citizenship and accepting Pakistani natonaltiy and was precluded from saying that he had no intention of making Pakistan his abode or residence. By accepting a Pakistani passport he caused the sovereign state of Pakistan to accept him as its citizen and to request other sovereign states of the world to extend objection and safety to him as a Pakistani citizen.
In state of U.P. v. Jafar Ali, AIR 1963 All 18, it was held that, prima facie, the nationality of the person holding a passport is that which is described in the passport. Under the Pakistani Citizenship Act, a person can obtain a Pakistani passport, if he is a citizen of that country and not otherwise. In AIR 1961 SC 1467, it was held that a passport obtained by a person while returning to India from Pakistan may be evidence that he was a Pakistani national. That was a case in which a person, who was an Indian Citizen on the promulgation of Indian Constitution, had gone to Pakistan for a short period; that is, he went there about the end of 1954 or the beginning of 1955 and returned to India on the 20th January, 1955, with the passport dated the 10th January, 1955. Their Lordships said that a short visit to Pakistan by an Indian citizen will not amount to migrating to that country, and that the Pakistani passport obtained by such a person can show no more than that he renounced Indian citizenship and acquired Pakistani nationality. But such evidence could be of no use in the case before their Lordships for, in view of Section 9(2) of the Citizenship Act, a Court cannot decide whether an Indian citizen has acquired the citizenship of another country.
In the instant case, however, the petitioner had left India before the. promulgation of the Constitution and his case would be governed by Article 7 thereof and not by the provisions of the Citizenship Act. The Court is therefore, competent to decide the question; and the evidence furnished by the Pakistani passport shows that the petitioner had acquired Pakistani Nationality before the commencement of the Constitution. There is nothing on the record to rebut the presumptive evidence against the petitioner on the basts of the Pakistani passport; his stay in Pakistan, for about 13 years cannot be said to as a short visit to Pakistan for any purpose inconsistent with the acquisition of Pakistani nationality. The learned advocate for the petitioner submitted that, inasmuch as he obtained the Pakistani passport in 1957, i.e. about 7 years after the promulgation of the Constitution, he must be deemed to have been an Indian citizen before 1957, and, therefore, the provisions of the Citizenship Act will apply to his case, and the Central Government alone could decide whether he had relinquished Indian nationality and acquired Pakistani nationality. But I am unable to agree with him, because he had left India long before 1950, and the fact that he obtained the Pakistani passport in 1957 merely confirmed his earlier intention to migrate to Pakistan.
The learned Advocate for the petitioner then relied on a decision of the Supreme Court in Central Bank of India Ltd. v. Ram Narain, (S) AIR 1955 SC 36 which deals with the question of domicile. This decision is of no help in this case, because domicile is different from citizenship, and the significance of the two words is not identical. A person may have one nationality or citizenship and a different domicile or he may have, a domicile but no nationality. Ordinarily, domicile has not the effect of altering a person’s nationality. In a state, a person may be a member of civil society alone as distinguished from political society. His membership of the political society determines his political status or nationality on which depends his permanent allegiance, or personal association to his sovereign. His membership of the civil society of a particular locality, that is his domicile, determines his civil status. In other words, domicile implies connection with a territory, not membership or community, which lies at the root of the notion of ‘citizenship’ or ‘nationality’. Not every person with a civil domicile has citizenship or nationality. He may be stateless, that is, without any nationality.
The distinction between the two words is also apparent from Article 5 of the Constitution. That Article lays down as to who shall be a citizen of India. It provides that in order to be a citizen of India, at the commencement of that Constitution, a person must not only be domiciled in the territory of India, but in addition to that, he must have been born in the territory of India, or either of his parents must have been born there, or he must have been ordinarily resident in this territory for not less than five years immediately preceding such commencement.
8. In view of the foregoing discussions, it must be
held that the petitioner had migrated to Pakistan in
December, 1947, within the meaning of Article 7 of the
Constitution, and, therefore he was a foreigner within the
meaning of that word in the Foreigners Act. As the petitioner failed to leave India by the 5th September, 1951,
as directed by the authorities, he was clearly guilty of
the offence under Section 14 of the Foreigners Act.
9. The learned Advocate for the petitioner faintly argued that inasmuch as the charge in this case did not speak of the fact that he was asked to leave India by the 5th September, 1961, the trial was vitiated. It is a fact that the charge mentioned the last date as the 31st August, 1961; but the omission of the next date, i.e., the 5th September, 1961 did not cause any prejudice to the petitioner, because he was apprised of the same by the evidence adduced on behalf of the prosecution in this case and he had sufficient opportunity to meet this part of the prosecution case. This contention must, therefore, fail.
10. Thus, there is no merit in the application and it must he dismissed.