1994 ALLMR ONLINE 499
BOMBAY HIGH COURT
D.R. DHANUKA, J.
Khair Mohamed Reas Mohamed Vs. State of Maharashtra
First Appeal No. 541 Along with Civil Appln. Nos. 2236 1990 and 2993 1994 of 1978
27th June, 1994
Petitioner Counsel: M. A. Rane with A. A. Omer,
Respondent Counsel: Nalawade, Asst. Govt. Pleader, .
Criminal P.C. (1973),S. 162, Evidence Act (1872),,S. 145
1981 Cri LJ 597 : (1981) 2 SCC 493 : AIR 1981 SC 1068 (Rel on) [Para 14]
1972 Cri LJ 1441 : AIR 1972 SC 2166 [Para 16]
AIR 1969 Cal 386 [Para 11]
1966 Cri LJ 1217 : (1966) 3 SCR 706 : AIR 1966 SC 1614 [Para 20]
1964 (1) Cri LJ 705 : AIR 1964 SC 828 (Referred) [Para 11]
1964 (1) Cri LJ 504 : AIR 1964 AP 198 (Rel on) [Para 16]
1961 (2) Cri LJ 702 : AIR 1961 SC 1522 [Para 14]
AIR 1961 SC 58 [Para 21]
1959 Cri LJ 1231 : AIR 1959 SC 1012 (Referred) [Para 11]
1959 Cri LJ 1053 : 61 Bom LR 164 : AIR 1959 Bom 359 [Para 16]
AIR 1954 Bom 505 : 56 Bom LR 552 [Para 21]
(1947) 48 Cri LJ 679 : AIR 1947 PC 75 (Rel on) [Para 21]
JUDGMENT :-This appeal is preferred by the original plaintiff against decree dated 16th September 1976 passed by the Bombay City Civil Court at Bombay in Suit No. 7274 of 1975. The plaintiff filed the above referred suit (a) for a declaration that the plaintiff was a citizen of India; (b) for a declaration that in any event the plaintiff was not a foreigner in 1955 when he is alleged to have travelled to India on a Pakistan Passport and (c) for a permanent injunction restraining the defendants from deporting the plaintiff out of India or from taking any action against the plaintiff under the Foreigners Act. By the said decree, the trial Court dismissed the above referred suit. Being aggrieved by the said decree of dismissal of the said suit, the plaintiff has preferred this appeal. Parties to the appeal are hereinafter referred to as the plaintiff and defendant for the sake of convenience.
2. The plaintiff averred in the plaint that the plaintiff was born in Nipani in Belgaum District situated in former British India and that the plaintiff was domiciled in India at the commencement of Constitution of India and was, therefore, a citizen of India under Article 5 of the Constitution of India. It is the plaintiff's case that the plaintiff had never migrated from India and had never left India for Pakistan as alleged by the defendants in the said suit. On 24th September 1975, the plaintiff was arrested on the allegation that the plaintiff had committed an offence under Section 14 of the Foreigners Act. Within a few days thereafter, the plaintiff was released on bail. On 30th September 1975, the plaintiff was served with a deportation order bearing No. DEP/SBI/16175 dated 30th September 1975 issued by the Deputy Commissioner of Police, SBI, CID and Civil Authority for Greater Bombay. In view of the service of the said deportation order, the police authorities made an application to the learned Magistrate to the effect that the police did not desire to prosecute the plaintiff in view of the issue of the said deportation order and applied to the learned Magistrate for discharge of the plaintiff from the said criminal case. The learned Magistrate passed an order for discharge of the plaintiff. On 24th/25th September 1975, certain statements of the plaintiff were recorded by the Sub-Inspector of Police by name Laxman Balaji Phatanjare during the course of his investigation. On or about 1st October 1975, the plaintiff filed the above referred suit and applied for ad interim injunction to the Bombay City Civil Court at Bombay restraining the defendants from deporting the plaintiff out of India. The ad interim injunction was granted by the trial
3. In the written statement filed in the said suit, the defendants contended that the plaintiff could not be considered as a citizen of India under Article 5 of the Constitution of India in view of the applicability of Article 7 of the Constitution which had an overriding effect. In para 5 of its written statement, the defendant contended that the plaintiff had himself stated in his application for grant of Visa dated 30th March 1955 that the plaintiff had migrated to Pakistan sometime in the year 1947. In the said written statement, the defendant further stated that while the plaintiff was in Pakistan the plaintiff had voluntarily applied for and obtained a Pakistan Passport bearing No. 283062 dated 12-3-1955 valid till 12-3-1960 from the Passport Officer, Government of Pakistan at Karachi on the basis of an express representation to the effect that the plaintiff was a citizen and national of Pakistan under the Pakistan Citizenship Act, 1951. In the said written statement, the defendant further stated that on the strength of the said Pakistan Passport the plaintiff had applied for and obtained category 'C' Visa No. 18645 dated 30-3-1955 valid till 30-6-1955 from the Indian High Commissioner at Karachi on the same basis and the same representation for limited purpose of visiting India to see his relatives. The defendant further stated in the said written statement that on the strength of the said travel documents the plaintiff had entered India on 6-4-1955 through the Bombay Sea Check Post as evidenced by entry Sr. No. 6357 dated 6-4-1955. The defendant further stated in the said written statement that the plaintiff had failed to leave India and in view of his overstay in India illegally and unauthorisedly, the plaintiff was arrested on being traced in Bombay on 24-9-1975. In the said written statement the defendant contended that the plaintiff was not a citizen of India on the date when the Constitution of India came into force by reason of applicability of Art. 7 of the Constitution of India. The defendant further contended in the said written statement that in any event the claim of the plaintiff to Indian citizenship stood terminated by reason of the voluntary acquisition of Pakistan passport in view-of the provisions contained in Section 9(2) of the Citizenship Act, 1955 read with rule 30 and rule 3(2) to Schedule II to Citizenship Rules, 1956. The defendant relied upon the statements of the plaintiff recorded by the sub-inspector of police on 24-9-75 and 25-9-75 during course of which the plaintiff appears to have admitted his signature on application for Visa as well as the fact of migration of the plaintiff from India to Pakistan at the relevant time.
4. At the trial of the suit, the plaintiff examined himself as a witness in support of his case. No other witness was examined on behalf of the plaintiff. Shri Laxman Balaji Phatanjare, Sub-Inspector of Police attached to SBI, CID, Bombay was examined as a defence witness.
6. Before I deal with the various submissions made by the learned counsel for the parties at the Bar at the hearing of this appeal and summarise the relevant evidence led at the trial of the suit to the extent necessary. I would like to refer to the main documentary evidence relied upon by the learned trial Judge in support of his finding as recorded in the judgment under appeal. The said documentary evidence consists of documents marked Exh. 5, Exhibit 6 and Exhibit 7 at the trial of the suit. In view of the relevant birth extract issued by Municipal Borough Nipani, it must be held that the plaintiff was born at Nipani on 31-8-38 and not at Ahmedabad. The documentary evidence marked as Exh. 5 and Exh. 6 before the trial Court consists of the statement of the plaintiff recorded by Sub-Inspector of Police by name Laxman Balaji on 24-9-75 and 25-9-75. The documentary evidence marked as Exhibit 7 before the trial Court consists of an application for Visa made by the plaintiff to the authorities concerned on 30-3-55.
that the plaintiff was born at Nipani in District Belgaum in the year 1938. The plaintiff deposed that his parents were the permanent residents of Nipani. It appears from the testimony of the plaintiff that the plaintiff is alleged to have left Nipani and come to Bombay along with his parents sometime in the year 1950. The residential address of the plaintiff as recorded by the trial Court in the particulars of plaintiff reads as under :
"B.D.D. Chawl No. 19, Room No. 3, Worli, Bombay-18."
In para 3 of his evidence, the plaintiff stated that the plaintiff had never left India and the plaintiff never obtained any passport of any foreign State. The plaintiff denied his signature on application for Visa. The plaintiff stated in his evidence that in the year 1962 the plaintiff had married an Indian lady by name one Muneera. Since 1967, the rent bill of room No. 3 in B. D. D. Chawl No. 19 stands in the name of the plaintiff. Prior thereto the bill stood in the name of his father. Para 7 of the testimony of the plaintiff recorded by the trial Court during the course of cross-examination of the plaintiff is of considerable significance for purpose of deciding this appeal. The evidence of the plaintiff was recorded, at the trial of the suit on 9-9-76 and 10-9-76. In the first instance, the plaintiff stated that the police had not recorded any statement of the plaintiff at any time. When signature of the plaintiff on the statement dated 24-9-75 was shown to the plaintiff, the plaintiff admitted his signature on the said statement dated 24-9-75. On the said statement having been proved by the testimony of the police officer, the said statement was marked as Exhibit 5, by the trial Court. In the said statement dated 24-9-75, the plaintiff in terms stated as under :
"In the year 1949 or so I went to Pakistan at Karachi along with my relatives before partition. I stayed there at Karachi for 2 years. I stayed at Bording Market at Karachi. I then obtained a Pakistan passport at Karachi in the year 55 and came to India at Bombay. I had applied for visa for Nipani and Bombay. I know Shri Alamgir, Tobaco Business and Darga gally whose address I had given in my visa as my referee and I also knew one Fakir Mohamed of Worli to whom also I had preferred my referee."
In the said statement, the plaintiff further stated that the plaintiff had come to Bombay from Pakistan and the plaintiff was staying in Bombay at the address mentioned in the statement. The plaintiff admitted his signature on application for visa marked at the trial of the suit as Exhibit 7 and also his photograph thereon. The plaintiff pleaded for mercy. The statement marked as Exhibit 6 before the trial Court was in continuation of the statement made by the plaintiff on 24-9-75. Both the statements were admittedly signed by the plaintiff. In the said subsequent statement the plaintiff stated that the plaintiff had come from Pakistan by ship and got down at Bombay Sea Post. In application for Visa marked as Exhibit 7 before the trial Court, it is stated that the plaintiff was born at Ahmedabad in the year 1935. In the said application it is further stated that the height of the plaintiff was 56" and the plaintiff had a mole on face. By the said application the plaintiff applied to the authorities for issue of category 'C' Visa for a period of three months for purpose of visiting India to meet his relatives who resided in Room No. 3 in the chawl referred to therein situated at Worli and also the relatives at Nipani (District Belguam). In the Said application, the plaintiff also stated that the plaintiff had migrated from India to Pakistan in 1947. The plaintiff gave reference of one Mr. Fakir Mohd. and one another person in para. 25 of the said application for Visa being application dated 28-3-55. Some of the particulars contained in Application Exhibit 7 are incorrect and some others appear to be correct.
8. During the course of his cross-examination, the plaintiff was confronted with the above referred documents. The plaintiff admitted his signature on statements which were marked as Exhibit 5 and Exhibit 6 before the trial Court. The said statements were duly proved by the evidence of the police officer as stated above. During the course of his cross-examination, the plaintiff stated that the statement Exh. 5 was not read over and explained to him before he put his signature thereon. The plaintiff also denied the correctness of the statements appearing in Exhibit 5 and Exhibit 6. The plaintiff denied the signature, on application for visa which was ultimately marked as Exhibit 7 before the trial Court. The plaintiff also denied that the photograph affixed on the said application for visa was of the plaintiff. The plaintiff produced rent bills in respect of room No. 3 forming part of BDD Chawl No. 19 which proved that the said rent bills during the years
"I have no documentary evidence to show that I was in India between 1950 and 1955."
9. Witness Laxman Balaji, the concerned Police Inspector of Police deposed at the trial on behalf of the defendants stating therein that the said witness had recorded the statement of the plaintiff on 24-9-75 as well as on 25-9-75. The said witness stated that he had read over and explained the statement exhibit 5 to the plaintiff in Hindi and had obtained his signature. The said witness stated that he had put questions to the plaintiff and had recorded the statements as per the answers given by the plaintiff. The said witness stated that whatever was stated in statement Exhibit 5 and statement Exhibit 6 was truthfully and correctly recorded by the witness as per answers of the plaintiff. The said witness also stated in his evidence that application for visa was shown to the plaintiff and a question was asked to the plaintiff as to whether the said application was made by the plaintiff. The said witness stated that the plaintiff had admitted his signature on the said application for visa as well as the fact that the photograph affixed thereon was that of the plaintiff. The said witness further stated that the plaintiff had admitted his signature on the said application for visa during the course of making his statement Exhibit 5 which was recorded by the above referred sub-inspector of Police during the course of his investigation. During the course of his cross-examination, the said witness admitted that Section 162 of the Code of Criminal Procedure did not require the statements recorded during the course of investigation to be signed by the party making such statements. The said witness further stated that the signature of the plaintiff on statements Exhibits 5 and 6 were obtained as per the practice followed in the Branch in which the said sub-Inspector of Police was working. The witness denied that he had not explained the statements to the plaintiff before obtaining his signature or that application for visa marked Exhibit 7 at the trial of the suit was not shown to the plaintiff at any time.
"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 :"
11. The Constitution Bench of the Supreme Court has authoritatively interpreted Article 7 of Constitution of India in the case of Kulathil Mammu v. State of Kerala, AIR 1966 SC 1614 (1619) : (1966 Cri LJ 1217 (1222). In the said decision, the Constitution Bench of the Supreme Court reversed its earlier decision in the case of Smt. Shanno Devi v. Mangal Sain reported in AIR 1961 SC 58. In the above referred case, the Supreme Court has held that the word 'migration' was used in Article 7 of the Constitution of India in a wider sense and departure of the citizen from India to Pakistan need not be with the intention of settling down in Pakistan for purpose of constituting migration. The Supreme Court has held that even a minor or a married woman may be held to have migrated even though they may not have acquired domicile of Pakistan as such. In the above referred case of Kulathil Mammu v. State of Kerala, the Supreme Court reached the conclusion that the minor concerned on whose behalf the petition was filed had migrated to Pakistan within the meaning of the expression 'migration' used in Article 7 of the Constitution of India. There can be no dispute about the correctness of law laid down by the Apex Court in case of Kulathil Mammu v. State of Kerala. In the State of Assam v. Jilkadar Ali, AIR 1972 SC 2166 : (1972 Cri LJ 1441). Shelat J. speaking for the Apex Court observed in para 7 of the judgment as under :-
"The word 'migrated' in Article 7 is used in its wider sense of going away from one place to another with or without intention of residing there permanently."
In this case, the Supreme Court followed the ratio of judgment of the Supreme Court in the case of Kulathil Mammu v. State of Kerala, (1966) 3 SCR 706 : (1966 Cri LJ 1217) In Kulathil's case, the Supreme Court interpreted the expression 'migrated' used in Article 7 of the Constitution in its wider sense of going from one place to another except where the movement was for a specific purpose and for a short and limited period or was
involuntary. The real question which arises for consideration of the Court in this appeal is as to whether the plaintiff had left India for Pakistan after 1st day of March 1947 and before 26th January 1950 or not ? The plaintiff's case is that the plaintiff had never left India for Pakistan. The plaintiff's case is that the plaintiff never obtained Pakistan passport. The plaintiff's case is that the plaintiff had never applied for visa to the prescribed authority. In other words, the plaintiff contends that the application for visa marked Exhibit 7 pertains to some other person having similar name and does not pertain to the plaintiff at all. The Court shall have to consider the relevant evidence before it and decide as to whether this part of the plaintiff's case is duly proved and as to whether the evidence led on behalf of the plaintiff is acceptable to the Court. The plaintiff relies on Article 5 of the Constitution of India. The defendant relies on Article 7 of the Constitution of India which operates notwithstanding anything contained in Articles 5 and 6.
12. The plaintiff did not lead any documentary evidence to prove that the plaintiff was in India during 1st March 1947 until 26th January 1950 or even during 26th January 1950 and 6th April 1955. The plaintiff did not examine any neighbour or any other person to prove his assertion that the plaintiff used to reside in Bombay or anywhere else in India during the said period. The only evidence led on behalf of the plaintiff on these crucial aspects is plaintiff's own testimony which is ex facie unsatisfactory and full of contradiction as indicated below. The first question to be asked is as to whether the oral evidence of the plaintiff is reliable and is acceptable to the Court. After appreciating the evidence on record, I have reached the conclusion that the oral evidence of the plaintiff is not acceptable to the Court particularly in view of the fact that the said evidence is not corroborated by any independent witness or by the documentary evidence. The rent bills produced by the plaintiff do not assist the case of the plaintiff as the name of the plaintiff is shown as the tenant in the said rent bill for the period commencing from 1967. The plaintiff ought not to have stated in his evidence that the police did not record any statement of the plaintiff at any time. The plaintiff must not have forgotten this tact within short period of one year. The plaintiff later on admitted his signature on his statement made to police marked as Exhibit 5 and Exhibit 6. The said statements were recorded only about a year back from the date of the testimony of the plaintiff. The testimony of the plaintiff is not acceptable to the Court in view of the infirmities therein as indicated above.
13. I have heard learned counsel Shri M. A. Rane as well as Shri Omer both at several hearings of this appeal at some length. I shall now deal with the submissions made by the learned counsel at the Bar.
14. At the outset, Shri M. A. Rane, the learned counsel for the appellant submitted that the statements marked as Exhibits 5 and 6 by the trial Court were not admissible in evidence as the said statements were recorded by the Sub-Inspector of Police during course of his investigation under Section 162 of the Criminal Procedure Code. The learned counsel for the respondent promptly invited attention of the Court to the judgment of the Supreme Court in the case of Khatri (IV) v, State of Bihar, reported in (1981) 2 SCC 493 : (1981 Cri LJ 597). In this case the Supreme Court has clearly held that Section 162 of Code of Criminal Procedure did not create any bar prohibiting use of the statements recorded by investigating officer in a writ petition or in a civil suit or a civil proceeding. The Supreme Court held that Section 162 of the Code of Criminal Procedure merely prohibited use of the statements recorded by the investigating officer under the said Section for the purpose of enquiry or criminal trial under the Code except for purpose of contradicting the prosecution witnesses as set out in the said Section. The learned counsel for the respondent also invited the attention of the Court to the ratio of the judgment of the High Court of Andhra Pradesh in the case of Malakala Surya Rao v. Gundapuneedi Janakamma reported in AIR 1964 Andh Pra 198 : (1964 (1) Cri LJ 504). It this case it was held by Jaganmohan Reddy J., as his Lordship then was, that the statements of the witness recorded by a police officer under Section 162 of the Code of Criminal Procedure 1898 and reduced to writing could be used in a civil proceeding under Section 145 of the Evidence Act to contradict the witness examined at the trial of the Civil Suit. After going through the above cases and the text of the relevant Section of Code of Criminal Procedure, once again, the learned counsel for the appellant did not pursue this line of argument with any
seriousness for the obvious reason. In view of the ratio of the above referred decisions, I have no hesitation in holding that the statement marked as Exhibits 5 and 6 before the trial Court were admissible in evidence and the said statements shall have to be considered by the Court along with other evidence while assessing and appreciating other evidence led at the trial. The said statements contain admission of the plaintiff on the issue of 'migration' of the plaintiff from India to Pakistan during the relevant period. It is not possible to exclude the documents Exhibits 5 and 6 while appreciating evidence for the purpose of recording the necessary findings of fact. It is certainly open to the learned counsel for the appellant to make his own submissions on the probative value or weight to be attached to the said statements. It is for the Court to consider as to what weightage should be attached to the statements recorded by the Sub-Inspector of Police during the course of investigation in this civil suit.
15. The learned counsel for the appellant then submitted that the said statements Exhibits 5 and 6 were recorded by Sub-Inspector Laxman Balaji in contravention of Section 162 of Code of Criminal Procedure. Section 162 of the Code of Criminal Procedure prohibits the Investigating Officer from obtaining signature of the person making statement to the police during course of his investigation. The question to be asked is as to what is the effect of contravention of Section 162 of the Code of Criminal Procedure for the purpose of admissibility of the statement marked Exhibits 5 and 6 at the trial of the civil suit. The learned counsel for the appellants were invited to make submissions on this aspect of the case, if they so liked and assist the Court. No authority was cited on this aspect of the case on behalf of the appellants. In the case of Zahiruddin v. Emperor, AIR 1947 PC 75 : (1947 (48) Cri W 679) Lord Normand specifically dealt with this very question. In the above referred case, the Privy Council, inter alia, observed as under :
"It appears to their Lordships that the effect of a contravention of the Section depends on the prohibition which has been contravened. If the contravention consists in the signing of a statement made to the police and reduced into writing, the evidence of the witness who signed it does not become inadmissible. There are no words either in the Section or elsewhere in the statute which express or imply such a consequence. Still less can it be said that the statute has the effect of vitiating the whole proceedings when evidence is given by a witness who has signed such a statement. But the value of his evidence may be seriously impaired as a consequence of the contravention of this statutory safeguard against improper practices."
The above referred observations were made by the Privy Council while deciding a criminal appeal. In view of the above referred decision of the Privy Council. I have no hesitation in holding that the statements marked as Exhibits 5 and 6 before the trial Court are admissible in evidence even though the Sub-Inspector of Police had obtained signatures of the plaintiff on the said statement in contravention of the procedure prescribed by Section 162 of the Code of Criminal Procedure. Since the said statements were made by the plaintiff to the police immediately prior to his arrest or soon thereafter, the same will have to be considered keeping the 'rule of caution' in mind. Sometimes it is said that these statements are presumed to be involuntary in the very nature of things as the freedom of the maker of the statement is in peril at the time of making of such statement. No such conclusive presumption can be made against the police authorities in a civil proceeding. It all depends. All police officers are not unreliable.
16. Shri Rane, the learned counsel for the appellant submitted that not much probative value can be attached to the statements Exhibits 5 and 6 even if the same are held to be admissible as evidence in the civil suit out of which this appeal has arisen. The learned counsel for the appellants submit that the said statements shall have to be considered as a 'tainted material'. The learned counsel for the appellants referred to paragraphs 16 and 17 of the judgment of Subba Rao, J. in the case of Tahsildar Singh v. State of U. P., reported in AIR 1959 SC 1012 : (1959 Cri LJ 1231). In this case, the Supreme Court traced the legislative history of the provisions contained in Section 162 of the Criminal Procedure Code and held that the said Section was enacted to protect the accused against the user of the statements of witnesses made before the police during investigation at the trial presumably on the assumption that the said statements were not made under circumstances inspiring confidence. In this case, the Supreme
Court held that Section 162 of the Code of Criminal Procedure created a general bar against use of such statements at a criminal trial subject to limited exception carved out therein in the interest of the accused i.e. allowing the accused to use such statements for limited purpose of contradicting witnesses at the criminal trial in the manner provided by Section 145 of the Evidence Act. The observations made in this case cannot be applied in a civil suit ipso facto while appreciating the evidence led by the parties at the trial of a civil suit. If the statement recorded by the police is to be always considered as unreliable without its appreciation or scrutiny in a civil proceeding, there is no purpose in stating that such statements are admissible as evidence in a civil suit/proceeding or a writ petition. Admissions alleged to have been made by the plaintiff under his signature at the foot of the statements recorded by the police during the course of investigation are not to be treated as conclusive. I agree with the learned counsel Shri Rane to a limited extend that the statements recorded by the police officer during the course of investigation must be examined by the Civil Court with necessary caution keeping in mind the situation in which the statements are made. If the said statements are admissible in evidence and if the said statements cannot be excluded for purpose of appreciating the totality of evidence led at the trial, it follows that such statements can even be relied upon by the civil Court for basing its finding even on a crucial issue. It all depends on totality of the evidence led at the trial of the civil suit. The evidentiary value of the statement Exhibits 5 and 6 is directly interlinked with the opinion which the Court forms in respect of oral testimony of the plaintiff and the omission of the plaintiff to lead other relevant evidence. The Court cannot make a presumption of dishonesty against a police officer and ignore the statements recorded by the police officer in all cases particularly where the evidence led on behalf of the plaintiff is found to be unsatisfactory. On this aspect of the case, the learned counsel for the appellant also invited attention of the Court to the observations made by the Supreme Court in para 12 of its judgment in Raja Ram Jaiswal v. State of Bihar reported in AIR 1964 SC 828 at 834 : (1964 (1) Cri LJ 705 at p. 710). In particular, Shri Rane, the learned counsel for the appellant emphasised the following observations of the Apex Court from the above referred para of the judgment.
"But it renders them inadmissible in evidence for the obvious reason that a suspicion about voluntariness would attach to them."
In this case, the Supreme Court held that the confession made by an accused to the police officer was not admissible in evidence also by reason of the provisions contained in Section 162 of the Code of Criminal Procedure. In my opinion, the ratio of this judgment is not helpful to the Court for the purpose of appreciating the evidence led at the trial of the suit on behalf of the plaintiff and the defendants. The statements exhibits 5 and 6 are admissible in evidence. The Supreme Court judgment reported in (1981) 2 SCC 493 holds the field.
17. The learned counsel for the appellants then submitted that the said statements Exhibits 5 and 6 as well as the evidence of Sub-Inspector Laxman Balaji should not be accepted by the court as reliable material in view of the conflict between the contents of statement Exhibit 5 and the application for Visa Exhibit 7. The learned counsel for the appellant submitted that in the application for visa (Exhibit 7) it was stated that the plaintiff was born at Ahmedabad sometime in the year 1935 which was not a fact. It is provided to the satisfaction of this Court that the plaintiff was born at Nipani in district Belgaum in the year 1938. The learned counsel for the appellant also submitted that visa application dated 28-3-1955 marked as Exhibit 7 did not concern the plaintiff at all as the height of the plaintiff was not 5( 6" and the plaintiff had no mole on face. I have no hesitation in accepting part of the plaintiff's criticism in respect of application Exhibit 7 as valid. Merely because the part of particulars set out in application Exhibit 7 are proved to be incorrect, the statements Exhibits 5 and 6 cannot be ignored by the Court. Sometimes the parties may confuse the issue by inserting certain incorrect particulars in Application for Visa. It is not disputed that the residential address of his relatives mentioned in column 13 of the said application is the same as given by the plaintiff in his deposition before the trial Court. In other words, some of the particulars contained in application Exhibit 7 pertain to the plaintiff and some others do not. To my mind the evidence of Sub-Inspector Laxman Balaji does not suffer from any basic infirmity so as to ignore
the same altogether. It would have been better if the plaintiff had led independent evidence of reliable witnesses to prove his assertion or if the plaintiff had produced some documentary evidence to prove his theory of residing in India during the period 1st March 1947 to 6th April 1935. The plaintiff did not take any trouble to prove his case. The plaintiff did not produce any relevant document. The plaintiff did not examine any witness. The plaintiff's own evidence is found by the Court to be unsatisfactory. It is not possible to accept mere word of the plaintiff and hold that the signature on application for visa (Exhibit 7) is not that of the plaintiff or that the plaintiff did not admit before the Sub-Inspector of Police Laxman Balaji that the signature on application for visa (Exh. 7) was not that of the plaintiff.
18. I have carefully gone through the deposition of the defence witness with particular concentration on his cross-examination keeping the rule of caution in mind. The plaintiff was represented at the trial by an experienced Advocate. It was not even suggested to witness Laxman Balaji that he had used any third degree methods or any force while recording the statements Exhibits '5' and '6'. Even if I have to make initial rebuttable presumption that the statements of the plaintiff who was then an accused might have been recorded involuntarily, such presumption stands rebutted by cogent and consistent testimony of the defence witness. Ordinarily it is not easy to imagine particulars and details regarding migration from India or stay in another country or in respect of return to India as are to be found in the statements Exhibits '5' and '6'. In the circumstances of the case, I am not prepared to hold that the plaintiff never made the statements Exhibits '5' and '6' even though the said statements bear the signature of the plaintiff. I am not prepared to hold that the statements exhibits 5 and 6 are liable to be treated as false or imaginary. Since the signatures on the said statements are admitted, the plaintiff ought to have led better and satisfactory evidence to prove his case as laid in the plaint. The plaintiff failed to do so.
19. Merely because the best possible evidence has not been led by the parties at the trial of the suit on either side, the evidence led at the trial of the suit cannot be ignored. There is no question of giving benefit of doubt in a civil suit as argued on behalf of the appellant in this appeal. It is well settled that even if part of the testimony or part of the documents is not reliable the rest of the testimony or even part of the document may be found by the Court as reliable or acceptable. It all depends on the opinion which the Court forms after overall appreciation of totality of the evidence led on behalf of the parties. Perhaps there is some infirmity in the evidence led on behalf of the defendants in the sense that the evidence led is not full profit. As against this, the evidence of the plaintiff is totally unreliable. I have, therefore no hesitation in holding that the learned trial Judge was right in reaching to his conclusion that the plaintiff had migrated from India to Pakistan after 1st March 1947 and the plaintiff returned back to India only on 6th April 1955. There is no material on record to warrant a finding to the effect that the plaintiff was throughout in India and the plaintiff had never migrated from India to Pakistan. I believe Sub-Inspector Laxman Balaji when he states that the plaintiff did admit to him during the course of the recording of the statements that the plaintiff had migrated from India to Pakistan an that the plaintiff had returned back from Pakistan to India on the basis of application for visa Exhibit 7. No clinching evidence is led on this aspect on either side. Sometimes it is not possible. Mathematical precision in leading of evidence at the trial of the suit is merely an ideal. A civil court cannot just sit idle with folded hands in despair merely because the evidence led is imperfect or is even mutually conflicting to some extent or the emerging picture is not that clear as one would like to hane. The Court has to appreciate the totality of evidence in best possible manner. A civil suit has to be decided by appreciating the evidence and recording findings on the issues framed in light of the preponderance of probabilities. After applying the above referred principles and appreciating the entire evidence on record of the suit, I confirm the findings of the trial Court on the issue that the plaintiff has failed to prove that the plaintiff was a citizen of India under Article 5 of the Constitution of India. I confirm the finding of the trial Court that the plaintiff had migrated from India to Pakistan after 1st March 1947 and before 26th January 1950 and Article 7 of the Constitution of India is clearly attracted to the facts of this case. I prefer to rely on defence evidence and the statements Exhibits 5 and 6 rather than the bare word of the plaintiff.
20. The learned advocate for the appellant on record of this appeal Shri Omer made additional submissions as indicated below. The learned counsel submitted that the plaintiff was registered as a voter by the office of Collector of Bombay for the year commencing from the year 1967. The learned counsel for the appellant wants the Court to consider copies of certificates issued by the Election Officer in support of his above referred contention which are annexed to civil application No. 2236 of 1990. On most of these certificates a rubber stamp is affixed which reads as under :
"The Registration of a name in the Electoral Roll will serve only a limited purpose. For matter concerning the Election."
It is true that only a citizen of India can vote at the Assembly or Parliamentary elections. In my opinion, the fact that the plaintiff had been registered as a voter for the period commencing from December 1967 does not estop the defendant from contending that the plaintiff was not a citizen of India on the date of the commencement of the Constitution. This Court is required to evaluate the totality of evidence on record. I have gone through the judgment of the High Court of Calcutta in the case of Birendranath Chatterjee v. State of West Bengal, reported in AIR 1969 Cal 386. In my opinion, reference to the voters list for the period commencing from December 1967 does not prove the plaintiff's case as laid in the plaint. The Office of the Collectorate does not hold a judicial or quasi-judicial enquiry while entering the name of the proposed voter in the electoral roll. The civil court is required to determine the issue of citizenship on merits. Since the annexures to the Civil Application No. 2236 of 1990 are taken by the Court into consideration for the purpose of deciding this appeal while appreciating the evidence on record, the said application does not survive. Even after considering the annexures to the said application, the conclusions of this Court on the issues arising in this appeal are the same.
21. The learned counsel Shri Omer then submitted that even if the plaintiff was not a citizen of India, the plaintiff could not be deported out of India as the plaintiff was not a foreigner within the meaning of the expression 'foreigner' as defined in Section 2(a) of the Foreigners Act, 1946. By amending Act 11 of 1957, the definition of the expression 'foreigner' was substantially amended by the Legislature. The said amended definition became operative with effect from 19th January 1957. The said amended definition reads as under :
"2(a) "foreigner" means a person who is not a citizen of India;"
"foreigner" was defined as meaning a person who
"(i) is not a natural-born British subject as defined in Sub-Sections (1) and (2) of Section 1 of the British Nationality and Status of Aliens Act, 1914, or
(iii) is not a citizen of India."
The learned counsel for the appellant has invited attention of the Court to several judgments of the High Court as well as the Supreme Court interpreting un-amended definition of the expression 'foreigner'. The said un-amended definition of the expression 'foreigner' is of no relevance for purpose of judging the validity of order of deportation dated 30th September 1975. If the plaintiff was not a citizen of India on commencement of Constitution, the plaintiff would have to be considered as a foreigner under the Foreigners Act 1946 after 19th January 1957. The learned counsel for the appellant relied on the Division Bench judgment of this Court in the case of the State v. Mahomedkhan Navrangkhan reported in (1959) 61 Bom LR 164 : (1959 Cri LJ 1053). This was a case of criminal prosecution under Section 14 of the Foreigners Act 1956 for breach of clause 7 of the Foreigners Order 1948 issued thereunder. In my judgment, this case has no relevance for the purpose of deciding the issues in this appeal arising from the decree passed in Civil Suit No. 7274 of 1975. The learned counsel for the appellant also referred to Division Bench judgment of this Court in the case of Union of India v. Rasanali Mahamed Hussein Shariff reported in (1954) 56 Bom LR 552 : (AIR 1954 Bombay 505.) In this case also our High Court dealt with the interpretation of the expression "foreigner" in light of the definition of the expression "foreigner" contained in Section 2(a) of the Foreigners Act 1946 prior to its amendment. In the
present case, the deportation order referred to in the plaint in Suit No. 7274 of 1975 was passed on 30th September 1975 i.e. much after the amendment of definition of expression 'foreigner' under the Foreigners' Act 1946. On the same aspect the learned counsel for the appellant also referred to judgment of the Supreme Court in the case of Fida Hussain v. State of Uttar Pradesh reported in AIR 1961 SC 1522 : (1961 (2) Cri LJ 702). In this case also the Supreme Court was seized of Criminal Appeal No. 129 of 1960 arising from prosecution of the appellant under Section 14 of Foreigners Act 1946 for breach of para 7 of the Foreigners Order 1948. In this case Sarkar J. speaking for the Apex Court clarified the matter in the following words :
"We wish to make it clear that we have said nothing as to the effect of the amended definition of "foreigner" on the status of the appellant."
In my opinion, Suit No. 7274 of 1975 filed by the appellant before the trial Court and this appeal is liable to be decided with reference to the provisions contained in Articles 5 and 7 of Constitution of India, and the amended definition of the expression 'Foreigner' as set out in Section 2(a) of the Foreigners Act 1946 and not with reference to unamended definition of the expression "foreigner".
23. At this state the Court is required to deal with Civil Application No. 2993 of 1994 made by the appellant to this Court. Section 5 of the Citizenship Act, 1955 enables non-citizens to make an application to the Central Government for citizenship by registration in the situation specified therein. The appellant states that the appellant had married an Indian citizen and the appellant is resident of India for several years. The learned counsel for the appellant submits that in case it is held by the Court that the appellant was not a citizen of India at the commencement of the Constitution, the appellant may be granted leave by the Court to make the necessary application to the Central Government or the prescribed authority for citizenship by registration as contemplated under Section 5 of the said Act. There is no question of granting leave to the appellant to make such an application. The Appellant is always at liberty to make such an application in accordance with law if he is covered under Section 5 of the Citizenship Act 1955. In this view of the matter, interim injunction granted by this Court shall continue to be operative till 31st December 1994. Necessary application for citizenship by registration may be made at the earliest possible. If such an application is made, the prescribed authority must decide the said application at the earliest possible and in any event before 31st December 1994. I express no opinion on applicability of the said provision or on merits of the said application.