MASUD KHAN versus STATE OF UTTAR PRADESH

. MASUD KHAN

STATE ·OF UTTAR PRADESH

September 26, 1973

[H. R. KHANNA, A. ALAGIRISWAMI AND R. S. SAIUCARIA, JJ.J

Foreigners (lnternmtnt) Order, 1~62-Proceedings u1'der, If Criminal-Issue, ·Est<>pptl.

Foreigr.ers A.ct (13 of .1946), s. 9-Person with Pakistani passport claim-ing 10 ·be ·indian Cillz;en-ilurden of proof.

the .J><tition<r <•me. to Jr.dia from Pakistan on the basis of Pakistani passport of Jnly 1954 and Indiafi visa of April, 1956. On his arrest under the Foreigners (Internment) Order, 15il62, he contended that be was an Indian citi-zen and that he had been illogally arrested and confined in jail.

HELD : ( 1) Unde~·- s. 5' of the Foteigri..!rs Act whenever· question arises wh:tner person is er is not foreigner the onus of proving that he is not foreigner .lies upon him. if the petitioner had b!en in india on 25-1-1950 but had gone to Palistau in 1951, it would be for the Central Government to decide wilether he is .Pakistarii national or .an Indian .citizen even though he may havi colJ'le to Indi_a on Pakistani_ passport in 1956. But.. when he went to Pakistan is matter pcciJ.liarly within his knowledge and he had not pr.>· 0 dnced any evidence in suppon of his statement that he went to Pakist&n only in J951. The burden is upon the petitioner to establish that he is citizen of Inciia in the manner claimed by him and this burden, not having been dis· charged by him, it should be held that he is a. foreigner and his claim that he is an Indian citizen must be rejected. [794 C-H]

(2) The petitioner was pro5ecuted unc!er s. 14 of th: Foreigners Act and wz.s acquitted on tne ground that he was r..ot foreigner; but this finding would not operate as issue-Cstoppel. Issue-estoppel arises only if the earlier as well as subsequent proceedings were criminal prosecutions. In the present case, while the earlier one was criminal prosecution, the latter is not criminal prosec•1tion, but merely action taken under the Foreigners (Internment) Order for the purpose of deporting the petitioner out of India. [794H; 795D-E; 196 HJ Prilal'l Singh v. State of Puniab, A.LR. l!i56 S.C. 41'5, Manipur, Ad· n1inistration Y. Thokchom, Bira Singh (1964] 7 S.C.R. 123, Plara Singh v. State of Puniab [1969] I S. C. 379, referred to.

Sa1nbasi1[1]an1 v. Public Prosecutor, Federaiio'n of }.falaya (1950] A.C. 458,. Th" King v. Wilku 77 C.L.R 511 and Marz v. The Queen TF C.L.R. 62, applied.

ORIGINAL JURISDICTION: Writ Petition No. 117 of 1973.

Under Article 32 of the Constitution of India for issue of writ in the nature of haveas corpus.

Uma Datta, for the petitioner.

D. P. U niyal and 0. P. Rana for the ;espondent.

The Judgment of the. Court .was delivered by

ALAGIRISWAMI, J' Petitioner Masud Khan pray§ for his release orr the ground t.h~t he, an Indian citizen has been illegally arrested and confined to Jail under Paragraph 5 of the Foreigners (Internment) II Order._ 19~2. He h~d come to India from Pakistan on the basi! of Pa!dstaOJ..P~~sport datfd 13·'.'-1954 and TndiaP visa dated 9·4·1956. In J_iis a~phcatton for vis~ he ha1 stated that he had. migrated to Pakistan m 1948 a11d was in Governm~nt service in Pakistan in P.W.D.

[ 1974] 1 s.c.R.

as Darogha and had given his permanent address as . Hyderabad (Sind). If these statements were correct the petitioner would clearly be Pakistani national· When this fact was brought out in the counter affidavit filled on behalf of the respondent, the petitioner filed further affidavit stating that he was appointed as Police Constable · in Hasanganj Police Station, District Fatehp.llr, U.P. ·in February 194 7 and continued as Police Constable till the middle of 1950 when he was dismissed from service, and that he went to Pakistan in the year 1951. In the reply affidavit filed on behalf of the respondent it is stated tha~ one Md. Masood Khan son of Zahoor Khan was enrolled . as Police Constable on 16-9-1947 and he was discharged from service on 20-5-1949. It is fairly clear that this information culled from the English Order Book from 1-10-1947 to 27·12-1951 refers to the petitioner; While, therefore, it is established that the petitioner did. not go to Pakistan in 1948, it camiot be said that it has been establish-ed that the petitioner went to Pakistan only in 1951. When he went to Pakistan is ·matter peculiarly within his knowledge and he has produced no evidence in support of that statement. Considering the frequent change of ground which the petitioner' has resorted to, mere statement from him cannot be accepted as true. Nor can we accept his contention that it is for the respondent to establish that he did not go to Pakistan in 1951 but that he went on some other date. The petitioner has also alleged that he was married in U.P. on 25th December, 1949. Even assmning that this statement is correct, the petitioner cannot establish that. he is citizen of India unless he succeeds in establishing that he was in India on 26-1-1950· If he had been in India on 26-1-1950 but had gon~ to Pakistan in 1951 it would be for the Central Governrnent to decide whether he is · Pakistani national or an Indian citizen· even though he may have • come to India on Pakistani passport in 1956 (See AlR 1963 SC 645; AIR 1962 SC 1052; AIR 1962 SC 1778; AIR 1961 SC 1467). That question does not arise here. _

We are not prepared- to assmne that the petitioner should be deemed to have been present in India on 26-l · 1950, as was urged on behalf of the petitioner. There is no room for any such presumption. Under s.9 of the Foreigners Act whenever question arises whether person is or is not foreigner the onus of proving that he is not foreigner lies upon him. The burden is therefore upon the petitioner to establish that he is citizen of India in the manner claimed by him and therefore he is not foreigner [See [1962] 1 SCR 744; [1963] Supp. SCR 560]. This burden not having been discharged by the petitioner it should be held that he is foreigner and his claim that he is an Indian citizen . cannot be dealt with· under the Foreigners- . (Internment) Order, 1962 must be rejected ..

_ It appears, however, that in 1960 he had .been prosecuted before the Sub-Divisional Magistrate, Fatehpur under s. 14 of the Foreigners Act and was acquitted on the ground that he was not foreigner. It was therefore contended that the question whether the petitioner is foreigner or not is matter of issu~ estoppel. The decision that he

was not foreigner seems to have been bas~d on the decision of the Allahabad High. Court in Mohd. Hanif Khar. 'i· State (AIR 1960 All. 434 ). It was held there that Pakistani national who entered i!nto India before the amendment to the Foreigners Act in 1957, when he coulJ not be considered to be foreigner, could not be so held because of that amendment. That deCision was that of learned Single Judge. On the point at issue he differed from an earlier decision of learned Single Judge of the same Court in Ali Sher v. The State (AIR 1960 All. 431). But ht: decided that case before him on dilferent point and did not think it necessary to refer the case before him tc Bench for considering which of the two decisions was correct on the question regarding the nationality oi person who came to India on Pakistani passport before 1957. There are thus two conflicting decisions of the same court on the sam,e point and the Magistrate who decided Ille petitioner's case followed one of them.

But that apart, this matter could be decided on another point. The question of issue-estoppel has been considered by this Court in Pri:am Singh v. State-.of Punjab (AIR 1956 SC 415), Manipur Administration v. Thokchom, Bira Singh ( 1964 7 SCR 123) and Piata Singh s. State of Punjab (1969 1 SCC 379). fs3ue·es1oppel arises only if the earlier as well as the subsequent proceedings were criminal prosecutions. In the present case while the earlier one was criminal prosecution the present is merely an action taken under the Foreigners (Internment) Order for the purpose of deporting the petitioner· out of India. It is not crimin9 l prosecution. The principle of issue-estoppe/ is simply this : that where an issue of fact has been tried by .E competent court on former occasion and finding has been reached in favour of an accused, such find;;ig would constitute. an estoppel or res jl.idicata against the prosecution not ., bar to the trial and conviction of the accused for different or distinct offence but as precluding the reception of evidence to disturb that finding of fact when the accused is tried subsequently even for different offence which migb.t be permitted by Jaw. Pritam Singh's case (supra) was based on the decision of the Privy Council in Sambasivam v. Public!, Prosecutor, Federation of Malaya (1950 AC. 458). In that case Lord MacDermott sj:leaking for the Board said :

"The effect of verdict of acquittal pronounced by competent court on lawful charge and after lawful trial is not completely stated by saying that. the person acquitted cannot be tcied again for the same offence. To that it mnst be added that the verdict is binding and conclusive in all subsequent proceedings l;etween the parties to the adjudi-cation."

It should be kept clearly in mind that the proceeding referred to herein· is criminal prosecntio~. The plea of issue-~stoppe! is not the . same as the plea of double 1eopardy or autre fo1s acquit. In The Kmg v. Wilkes (77 C.L.R. 511) Divon, J. referring 'to the question of issue-estoppel said.

" .... it appears to me that there is r.othing wrong in the view that there is an issue estoppel, if it appears by record of itself or as explained by proper evidence, that the same point was determined in favour of prisoner in previous criminal trial which is brought in issue on stcond criminal trial of the same prisoners. . . . . . There must be prior pro-ceeding determined against the Crown necessarily involving an issue which again arises in subsequent proceeding by the Crown against the same prisoner. The allegation. of the Crown in the subsequent proceeding must itself be inconsis· tent with the acquittal of the prisoner in the previous pro-ceeding. But if such condition of affairs arises I see no rea5-0:n why the ordinary rules of issue;estoppel should not apply.. . . . . . lssue·estoppel is concer_ned with the judicial establishment of proposition of law or fact between parties. It depends upon well"known doctrines which control the relitigation of issues which are settled by prior litigation."

The emphasis here again would be seen to be on the determination of criminal liability. In Marz v. The Queen (96 C.L.R. 62) the High Court of Australia said :

"The Crown is as much precluded by an estoppel by judg-ment in criminal proceedings as is subject in civil proceed-ings. . . . . . The laws which gives effect to issueestoppel is not concerned with tht correctness or incorrectness of the finding which amounts to an estoppel, still less with the pro· eess of reasoning by which the finding was reached in fact. . . . . . It is enough that an issue or issnes have been .distinctly raised or found. Once that is done, then, so long as the finding stands, if there be any subseqnent litigation between the same parties, no allegations legally inconsistent with the finding, may be made by one of them against the other."

Here again it is to be remembered that the principle applies to two criminal proceedings and the proceeding with which we are now con-cemed is not criminal proceeding. We therefore hold that there is ·no substance in this contention.

The petition is dismissed.

'V.P.S.