SIRAJUL HOQUE versus THE STATE OF ASSAM & ORS. on 14 February 2019

SIRAJUL HOQUE

v.

THE STATE OF ASSAM & ORS.

(Criminal Appeal No. 267 of 2019)

FEBRUARY 14, 2019

[R. F. NARIMAN AND VINEET SARAN, JJ.]

Foreigners’ Act, 1946:

s.9 – Burden of proof – Citizenship status of proceedee –Appellant declared foreigner by the Foreigner’s Tribunal holdingthat there was discrepancy in the name of the grandfather – Upheldby the High Court – On appeal held: Appellant’s great grandfather’sname and father’s name appear the same throughout the document– However, only discrepancy is found in grand father’s name – Insome of the documents Kefatullah later became Kematullah and inNRC Registration details of the year 1971, grandfather noted to beKefatullah – Appellant also produced Permanent Account Number,including photo identity cards issued by the Election Commissionof India, identity cards issued to his brother including voters lists inwhich his name appears – In view thereof, it cannot be said thatKematullah is not the same despite being named Kefatullah in someof the documents – Grandfather and fathers’ identity etc. establishedsuccessfully by the appellant – Further, the mere fact that the fathermay later have gone to another village is no reason to doubt thisdocument – Thus, the judgment of the High Court as well asForeigner’s Tribunal set aside.

CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo. 267 of 2019.

From the Judgment and Order dated 13.06.2017 of the High Courtat Guwahati (The High Court of Assam, Nagaland, Mizoram andArunachal Pradesh) in W.P. (C) No. 1011 of 2017.

Pijush K. Roy, Mrs. Kakali Roy, Rajan K. Chourasia, Advs. forthe Appellant.

Tushar Mehta, SG, Ms. Madhvi Diwan, ASG, Shuvodeep Roy,Riju K. Sarkar, Ms. Aishwarya Bhati, Ms. Shraddha Deshmukh,Damodar Solanki, B.V. Balaram Das, Advs. for the Respondents.1047

A

B

CDE

F

G

H

1048 SUPREME COURT REPORTS [2019] 3 S.C.R.

AThe Judgment of the Court was delivered by

R. F. NARIMAN, J. 1. Leave granted.

2. The present appeal raises an issue as to whether the appellantherein has been declared to be a foreigner incorrectly. By the Foreigner’sTribunal judgment dated 19.01.2017, after referring to some of theBdocuments produced by the appellant, and after finding that there was adiscrepancy in the name of the grandfather and the fact that thegrandfather and the father later lived in different villages, the Tribunaldeclared the appellant to be a foreigner. The High Court dismissed the

writ petition filed against the same judgment stating:C“Having said that we may look into the written statement filed bythe petitioner before the Tribunal. In a proceeding before theForeigners’ Tribunal where the citizenship status of the proceedeeis being questioned, that too, by the State, the proceedee mustdisclose all material facts within his special knowledge relevantDfor establishing his citizenship at the first instance itself i.e., in thewritten statement. In other words, he must be able to plead abouthis identity as a citizen of India. This would be as per therequirement of Section 9 of the Foreigners’ Act, 1946, which is inpari materia to the provision of Section 106 of the Evidence Act,1872. Thereafter, the material facts pleaded in the writtenEstatement are required to be proved in accordance with law byadducing cogent and reliable evidence. In the written statement,petitioner did not even mention his name; not to speak of his dateof birth or year of birth. All that he stated was that he was bornat Village-Sagolchora in the district of Dhubri and that his parentsFwere voters in the voters’ list of 1997. His grand-parents werevoters of 1966-1970. Only in the verification column, he describedhis name as Sirajul Haque. This is all that the petitioner stated inthe written statement. This is not only inadequate but does not inany manner lead to the identification of the petitioner as anindividual, not to speak of identification of the petitioner as a citizenGof India. It is not a case of violation of the principles of naturaljustice or procedural impropriety. Neither can it be said to be acase of perversity.”

3. We have heard learned counsel for both sides extensively andhave gone through the documents produced by the appellant ourselves.HOn a perusal of the same, we find that a number of documents have been relied upon by the appellant starting with a voters’ list of hisgrandfather Kematullah in villge Sotobashjani. There is no doubt thatthe great grandfather’s name Amtullah appears as Amtullah throughoutthe document. Equally, there is no doubt about the father’s name whichappears as Hakim Ali throughout. The only discrepancy found is that insome of the documents Kefatullah later becomes Kematullah. However,what is important to note is that his father’s name Amtullah continues asAmtullah and the other family members associated continued as such.Also produced are NRC Registration details of the year 1971 of thegrandfather who is noted to be Kefatullah in this document. Other voterslists are then produced where the letter F becomes the letter M withother family names remaining the same. In fact, the appellant has himselfproduced a document of 1981 from the Income Tax Department givinghis Permanent Account Number. Apart from these documents, certainother later documents have also been produced including photo identitycards issued by the Election Commission of India and identity cardsissued to his brother including voters lists in which the appellant’s nameappears.

4. Having gone through these documents, we are of the view thatit is not possible to state that Kematullah is not the same despite beingnamed Kefatullah in some of the documents. This being so, thegrandfather’s identity, father’s identity etc. has been establishedsuccessfully by the appellant. Further, the mere fact that the father maylater have gone to another village is no reason to doubt this document.

5. We, therefore, set aside the judgment of the High Court as wellas the Foreigner’s Tribunal and allow the appeal.