Page No.# 1/24

GAHC010122212019

THE GAUHATI HIGH COURT

(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

Case No. : WP(C)/3745/2019

ASMINA KHATUN AND 2 ORS.

W/O MD. INTAZ ALI, R/O VILL. KALIKAJARI, P.S. MIKIRBHETA, DIST.-

MORIGAON, ASSAM

2: JAKIR HUSSAIN

S/O MD. INTAZ ALI

R/O VILL. KALIKAJARI

P.S. MIKIRBHETA

DIST.-MORIGAON

ASSAM

3: IMRANA KHATUN

D/O MD. INTAZ ALI

R/O VILL. KALIKAJARI

P.S. MIKIRBHETA

DIST.-MORIGAON

ASSA

VERSUS

THE UNION OF INDIA AND 3 ORS.

REP. BY THE SECRETARY TO THE GOVT. OF INDIA, MINISTRY OF HOME

AFFAIRS, JAISALMER HOUSE, 26, MANSINGH ROAD, NEW DELHI-110011

2:THE STATE OF ASSAM

REP. BY THE SECRETARY

DEPTT. OF HOME

DISPUR

GUWAHATI-6

3:THE SUPERINTENDENT OF POLICE (BORDER)

MORIGAON

DIST.-MORIGAON

ASSAM Page No.# 1/24

GAHC010122212019

THE GAUHATI HIGH COURT

(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

Case No. : WP(C)/3745/2019

ASMINA KHATUN AND 2 ORS.

W/O MD. INTAZ ALI, R/O VILL. KALIKAJARI, P.S. MIKIRBHETA, DIST.-

MORIGAON, ASSAM

2: JAKIR HUSSAIN

S/O MD. INTAZ ALI

R/O VILL. KALIKAJARI

P.S. MIKIRBHETA

DIST.-MORIGAON

ASSAM

3: IMRANA KHATUN

D/O MD. INTAZ ALI

R/O VILL. KALIKAJARI

P.S. MIKIRBHETA

DIST.-MORIGAON

ASSA

VERSUS

THE UNION OF INDIA AND 3 ORS.

REP. BY THE SECRETARY TO THE GOVT. OF INDIA, MINISTRY OF HOME

AFFAIRS, JAISALMER HOUSE, 26, MANSINGH ROAD, NEW DELHI-110011

2:THE STATE OF ASSAM

REP. BY THE SECRETARY

DEPTT. OF HOME

DISPUR

GUWAHATI-6

3:THE SUPERINTENDENT OF POLICE (BORDER)

MORIGAON

DIST.-MORIGAON

ASSAM

Page No.# 2/24

PIN-782105

4:THE ELECTION OFFICER

MORIGAON

DIST. MORIGAON

ASSAM

PIN-78210

Advocate for the Petitioner : MR. U DUTTA

Advocate for the Respondent : ASSTT.S.G.I.

Linked Case : WP(C)/8399/2022

MD. INTAZ ALI

S/O- LATE JAMIRUDDIN

RESIDENT OF VILLAGE- KALIKAJARI

P.S.- MIKIRBHETA

DISTRICT- MORIGAON

ASSAM

PIN- 782016.

VERSUS

THE UNION OF INDIA AND 3 ORS

REPRESENTED BY THE SECRETARY TO THE GOVERNMENT OF INDIA

MINISTRY OF HOME AFFAIRS

JAISALMER HOUSE

26

MANSINGH ROAD

NEW DELHI- 110011.

2:THE STATE OF ASSAM

REPRESENTED BY THE SECRETARY

DEPARTMENT OF HOME

Page No.# 3/24

DISPUR

GUWAHATI- 781006.

3:THE SUPERINTENDENT OF POLICE (BORDER)

MORIGAON

DISTRICT- MORIGAON

ASSAM

PIN- 782105

4:THE ELECTION OFFICER

MORIGAON

DISTRICT- MORIGAON

ASSAM

PIN- 782105.

------------

Advocate for : MR. U DUTTA

Advocate for : DY.S.G.I. appearing for THE UNION OF INDIA AND 3 ORS

BEFORE

HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA

HONOURABLE MR. JUSTICE ROBIN PHUKAN

JUDGMENT & ORDER (ORAL)

Date : 28-03-2023

(A.M. Bujor Barua, J)

Heard Mr. U. Dutta, learned counsel for the petitioners and Ms. L. Devi,

learned counsel for the respondent No. 1, being the Union of India. Also heard

Mr. J. Payeng, learned counsel for the respondents No. 2 and 3, being the

authorities in the Home Department and Mr. T. Pegu, learned counsel for the

respondent No. 4, being the authority in the Election Commission of India.

2. As the present proceeding also involves a question involving the

proposition laid down by the three judges bench of this Court in the case of

State of Assam & Ors. Vs. Moslem Mondal & Ors. reported in 2013 (1) GLT 809

and its implication in the manner in which the State of Assam in the Home

Department is carrying out the proceedings against the suspected foreigners,

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Mr. D. Nath, learned Senior Government Advocate has also appeared on behalf

of the State of Assam in the Home Department.

3. WP(C) No. 3745/2019 has been instituted by Musstt. Asmina Khatun, Md.

Jakir Hussain and Musstt. Imrana Khatun being aggrieved by an opinion dated

21.12.2018 of the Foreigners’ Tribunal No. 3, Morigaon in F.T.(C) No. 203/2015

declaring them to be foreigners. It is noted that Musstt. Asmina Khatun is the

wife of Md. Intaz Ali, resident of village Kalikajari, P.S. Mikirbheta in the

Morigaon district, whereas Md. Jakir Hussain and Musstt. Imrana Khatun are

respectively the son and daughter of Md. Intaz Ali. WP(C) No. 8399/2022 has

been instituted by Md. Intaz Ali son of late Jamiruddin, resident of village

Kalikajari, P.S. Mikirbheta in the Morigaon district also being aggrieved by an

opinion dated 21.12.2018 of the Foreigners’ Tribunal No. 3, Morigaon in F.T.(C)

No. 203/2015. In the writ petitions, the petitioners raise a question of law with

reference to the provisions in paragraph 97 of the judgment rendered by the

three judges bench of this Court in Moslem Mondal (supra) to the effect that if

an enquiry/investigation as provided in the said paragraph is not conducted, the

resultant proceedings before the Foreigners’ Tribunal itself would be vitiated and

the entire proceedings are liable to be set aside. A further question of law raised

by the petitioners is that the enquiry and the reference had been made only

against Md. Intaz Ali being the writ petitioner in WP(C) No. 8399/2022 and no

such enquiry was held against the three writ petitioners in WP(C) No.

3745/2019 and therefore by relying upon the proposition laid down by this

Court in paragraph 9 of its judgment rendered in Sudhir Roy & Ors. Vs. Union of

India & Ors., reported in 2019 (1) GLT 353, the proceedings against the said

writ petitioners in WP(C) No. 3745/2019 are vitiated and therefore the opinion

rendered by the Tribunal in respect of such writ petitioners are also liable to be

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set aside.

4. Over and above the aforesaid two questions of law being raised by the writ

petitioners, the petitioner Md. Intaz Ali in WP(C) No. 8399/2022 seeks to

discharge the burden under Section 9 of the Foreigners Act, 1946 by referring to

the voters’ list of 1971 in respect of village Nagabandha, Mouza Lahorighat in

the Nagaon district which contains the name of Md. Jamiruddin son of Khalil at

Sl. No. 1063. The petitioner Md. Intaz Ali also refers to the voters’ list of 1985 of

village Nagabandha, Mouza Lahorighat in the Nagaon district which contains the

name of Md. Jamiruddin son of Khalil at Sl. No. 194, Musstt. Sabarjan wife of

Jamiruddin at Sl. No. 195 and that of Md. Muktab Ali son of Jamiruddin at Sl.

No. 196, by claiming that Musstt. Sabarjan is his mother and Md. Muktab Ali is

his brother. The petitioner also places reliance upon a Jamabandi in respect of a

plot of land of village Nagabandha wherein as per the order of the Circle Officer

dated 27.11.2019, the land had been mutated by deleting the name of

Jamiruddin son of Khalil and by including the names of Md. Muktab Hussain son

of Jamiruddin, Musstt. Hasen Banu daughter of Jamiruddin and Md. Intaz Ali

son of Jamiruddin. Accordingly the petitioner Md. Intaz Ali claims that he is the

Intaz Ali as reflected in the order of the Circle Officer dated 27.11.2019 and

therefore he is the son of Jamiruddin of village Nagabandha whose name

appears in the voters’ list of 1971 of the said village and claims to have

discharged the burden that he is a citizen of India.

5. Mr. J. Payeng, learned counsel for the respondents in the Home

Department states that the Jamabandi relied upon by the petitioner Md. Intaz

Ali was not before the Tribunal because the proceedings in the Tribunal was

prior to the order of the Circle Officer dated 27.11.2019.

6. Mr. D. Nath, learned Senior Government Advocate appearing for the Home

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Department of the Government of Assam raises a contention that the

propositions laid down in paragraph 97 of the judgment of this Court in Moslem

Mondal (supra) are provisions in furtherance of Article 21 of the Constitution of

India and it does not lay down a jurisdictional procedure so that in the event, an

enquiry or investigation contemplated under the said proposition could not be

carried out in a given case, the same would vitiate any proceeding that has

been initiated before the Foreigners’ Tribunal without due adherence to the

requirement laid down in the said paragraph 97. Mr. D. Nath raises another

contention that these proceedings are of a different nature vis-a-vis any other

criminal investigation or proceeding wherein the prospective foreigners do have

a tendency, whenever any enquiry/investigation is being contemplated or

carried out, to disappear and make themselves unavailable for the enquiry and

the investigation. By exhibiting such tendency, the attempt of the prospective

proceedees are to avoid the judicial system of being detected whether the

person concerned is a foreigner or not. According to Mr. D. Nath, learned Senior

Government Advocate, to mitigate such eventualities, the provisions of

paragraph 97 of the judgment in Moslem Mondal (supra) would have to be read

in the context of each individual case.

7. Mr. U. Dutta, learned counsel for the petitioners has raised a contention

that the provisions laid down in paragraph 97 of the judgment in Moslem

Mondal (supra) is a provision which would be mandatory in nature and any

deviation thereof would lead the subsequent proceeding that may be initiated to

be vitiated. The further submission raised is that the judgment in Moslem

Mondal (supra) having been rendered by a three judges bench, a Division Bench

cannot take a contrary view as it would violate the principle of judicial discipline

and therefore the question raised by the State authorities cannot be gone into.

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To support his contention, Mr. U. Dutta, learned counsel for the petitioners relies

upon the pronouncement of the Hon’ble Supreme Court in the case of M/s

Trimurthi Fragrances (P) Ltd. through its Director Shri Pradeep Kumar Agarwal

Vs. Government of N.C.T. of Delhi through its Principal Secretary (Finance) &

Ors., reported in (2022) AIR(SC) 4868. A reference is made to paragraph F

wherein an earlier judgment of the Hon’ble Supreme Court rendered in Central

Board of Dawoodi Bohra Community & Anr. Vs. State of Maharashtra & Anr.,

reported in (2005) 2 SCC 673 was quoted and thereafter in paragraph G, a

conclusion was arrived that a decision delivered by a bench of larger strength is

binding on any subsequent bench of lesser or co-equal strength and that it is

the strength of the bench and the number of judges who have taken a

particular view which is said to be relevant. Accordingly, the conclusion that was

arrived in the said judgment was that it is absolutely clear that a bench of a

lesser quorum cannot disagree or dissent from the view of the law taken by a

larger quorum and quorum means the bench strength which was hearing the

matter. Mr. U. Dutta, learned counsel for the petitioners in his submission also

refers to the in the case of Official Liquidator Vs. Dayanand & Ors., reported in

(2008) 10 SCC 1, wherein at paragraph 90 the Hon’ble Supreme Court had

observed that despite several pronouncements on the subject, there is a

substantial increase in the number of cases involving violation of the basics of

judicial discipline and the learned single judges and benches of the High Courts

refuse to follow and accept the verdict and law laid down by coordinate and

even larger benches by citing minor difference in the facts as the ground for

doing so. The Hon’ble Supreme Court concluded that therefore it has become

necessary to reiterate that disrespect to the constitutional ethos and breach of

discipline have grave impact on the credibility of judicial institution and

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encourages chance litigation.

8. By raising the submission that a Division Bench cannot take a different

view from that of the proposition laid down by a three judges bench, Mr. U

Dutta, learned counsel for the petitioners refers to another Division Bench

judgment of this Court in Rina Rani Das –vs- Union of India and others, in

WP(C) No. 2706/2019 in its order dated 10.03.2021, wherein the provision of

paragraph 97 of the judgment of the three judges bench in Moslem Mondal

(supra) was deliberated and discussed. In paragraph 16 of the judgment in Rina

Rani Das (supra), it was provided that proper pre-referral investigation is

absolutely necessary to obviate the problem that had arisen in the matter before

the Court in Rina Rani Das (supra).

9. In Rina Rani Das (supra), the issue was that while serving notice on the

proceedee, the person against whom the proceedings were initiated was not

properly identified inasmuch as, there was an issue raised that the opinion

rendered by the Tribunal was given in respect of ‘Rima Das’, which was sought

to be made applicable to ‘Rina Rani Das’. In the aforesaid circumstance, the

Court examined the relevance of an enquiry/investigation before the proceeding

was initiated and in the circumstance, arrived at its conclusion in paragraph 16

that a proper pre-referral investigation is absolutely necessary to obviate to such

problem i.e. to avoid the problems of identity of an opinion being made

applicable to a person against whom there was no reference or no proceeding

held. Accordingly, the Court expressed the view that pre-reference investigation

cannot be mechanical and there must be proper application of mind by the

authorities concerned and the persons concerned in the locality including the

proposed proceedee must be examined wherever possible.

10. In the circumstance, in paragraph 20 of the said judgment in Rina Rani

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Das (supra), the Division Bench had held that the referral authority must adhere

to the norms laid down in paragraph 96, 97, 98 of Moslem Mondal (supra) as

otherwise the proceeding before the Tribunal would be vitiated.

11. Mr. U Dutta, learned counsel for the petitioners without much reference to

the circumstance in which the proceeding against Rina Rani Das (supra) was

held, merely seeks to rely upon the provision of paragraph 20(1), wherein it was

held that if the provision in paragraph 97 of Moslem Mondal (supra) is not

scrupulously followed, the proceedings before the Tribunal would be vitiated. Mr.

U Dutta, learned counsel for the petitioners seeks to raise his submission that in

the instant case, the petitioner Md. Intaz Ali and his family members were not

properly enquired or investigated and therefore, the proceedings as well as the

resultant opinion dated 21.12.2018 of the Tribunal would be vitiated.

12. With regard to the other submission of Mr. U Dutta, learned counsel for

the petitioners that the writ petitioners in WP(C) No. 3745/2019, who are the

family members of the other writ petitioner Md. Intaz Ali were not duly enquired

or investigated, and therefore could not have been referred in the same

reference as made to Md. Intaz Ali relies upon the proposition in Sudhir Roy

(supra) and submits that the proceedings against the writ petitioners in WP(C)

No. 3745/2019 are vitiated although otherwise it may be maintainable against

the other writ petitioner Md. Intaz Ali.

13. Mr. D Nath, learned Senior Government Advocate for the respondents in

the Home Department of the Government of Assam on the other hand relies

upon the pronouncement of the Hon’ble Supreme Court rendered in Veerendra

–vs- State of Madhya Pradesh, reported in (2022) 8 SCC 668, wherein it had

been held that merely because of certain defects or shortcomings in the

investigation, an accused who had been subjected to a criminal trial cannot get

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acquittal only for the reason of the shortcomings in the investigation.

Accordingly, Mr. D Nath, learned Senior Government Advocate seeks to invoke

the said principle in the instant case and submits that even though the enquiry

or the investigation was not carried out or not carried out as per the

requirement of law in respect of the writ petitioners, the same by itself will not

vitiate the resultant proceedings that had been initiated against them merely on

the reason of such shortcomings or defects in the investigation.

14. We have heard the learned counsel for the parties.

15. As regards the issue raised by Mr. U Dutta, learned counsel for the

petitioners that it would be inescapable for the authorities not to conduct an

enquiry or investigation as provided in paragraph 97 of Moslem Mondal (supra)

before referring for an opinion to the Foreigners Tribunal as regards the

citizenship of a person and the said provision having been laid down by a three

judges bench, a Division Bench would not have the jurisdiction to take a

different view, we find that from the issues raised by the State of Assam as

regards the provision of paragraph 97 of the judgment in Moslem Mondal

(supra), this Court has not been called upon to render any judgment by taking a

view which would be different or in deviation to what had been already laid

down in Moslem Mondal (supra). Neither this Court is called upon to take a view

which would be different or in deviation of what is provided in paragraph 97, nor

the Court intends to take a view which would be different or in deviation of

paragraph 97. We are in respectful agreement with the propositions laid down

by the Hon’ble Supreme Court in paragraphs F and G of its judgment rendered

in M/s Trimurthi Fragrances (P) Ltd (supra) as well as with that of Dayanand

(supra) in paragraphs 90 and 91 thereof. The issue raised by the Home

Department of the Government of Assam is that in the peculiar nature and

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circumstance of the present proceedings, situations are also faced where a

proceedee deliberately avoids appearing before the enquiring or investigating

authorities with the intention that by not appearing before the authorities in the

enquiry or investigation, they can subsequently take a technical view that as

there was no enquiry or investigation, therefore as held in paragraph 20(1) of

the judgment of this Court rendered in Rina Rani Das (supra), the proceeding

initiated against them is vitiated. If such situations do exist when the referring

authorities conduct the verification, certainly it is a matter of concern and it

would be an escape route for a prospective proceedee to avoid the proceedings

and being declared as a foreigner merely by disappearing and making

themselves unavailable before the enquiring authority and ensure that in spite

of all efforts, the enquiring authority is unable to do the needful as provided in

paragraph 97 of the judgment in Moslem Mondal (supra).

16. In this proceeding, we are required to look into the issue only from the

aforesaid perspective and not from the general perspective as to whether the

provisions in paragraph 97 of Moslem Mondal (supra) can be diluted to some

extent or that a different view or a deviated view is required to be taken of the

provisions thereof. In the circumstance, we examine the provisions of

paragraphs 92, 93, 94, 95, 96, 97, 98, which are extracted as below and

understand as to what are the exact provisions and propositions laid down

therein:-

“(92). As discussed above, the Tribunals constituted under the Foreigners

Act read with the 1964 Order have to regulate their own procedure and

they have also the quasi-judicial function to discharge and hence in a

given case the Tribunal has jurisdiction to entertain and pass necessary

order on an application to set aside an ex-parte opinion, provided it is

proved to the satisfaction of the Tribunal that the proceedee was not

served with the notice in the reference proceeding or that he was

prevented by sufficient cause from appearing in the proceeding, reason

for which was beyond his control. Such application, however, should not

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be entertained in a routine manner. The Tribunal can entertain such

application provided the proceedee could demonstrate the existence of

the special/exceptional circumstances to entertain the same way of

pleading in the application filed for setting aside the ex-parte opinion,

otherwise the very purpose of enacting the 1946 Act and the 1964 Order

would be frustrated. The Tribunal, therefore, would have the jurisdiction

to reject such application at the threshold, if no ground is made out.

Question (d): In what manner the investigation is to be carried out by

the instrumentality of the State before making a reference to the Tribunal

under the provisions of the 1964 Order?

(93) The right to get a fair trial is a basic fundamental and human right.

Any procedure which comes in the way of a party in getting a fair trial

would be violative of Article 14 of the Constitution. Fair trial also includes

a fair investigation. The concept of fair investigation and fair trial

assumes much importance in the matter of detection and deportation of

foreigners under the provisions of the Foreigners Act, 1964 Order as well

as the 2012 Amendment Order, because of the nature of proceeding as

well as the burden cast on the person who is suspected to be a foreigner

to prove that he is not a foreigner, by Section 9 of the 1946 Act. The

citizenship right is to be jealously protected. The right under Article 21 of

the Constitution is available to all persons to protect his life and personal

liberty and hence even the right of a non-citizen to have a fair

investigation, trial as well fair procedure to be adopted by the Tribunal is

guaranteed by Article 21 of the Constitution.

(94) The Apex Court in Dwarka Prasad Agarwal (supra) has opined that

the right to get a fair trial is a basic fundamental/human right and denial

of fair trial violates Article 14 of the Constitution. In Zahira Habibulla H.

Sheikh (supra), commonly known as “best Bakery Case”, the Apex Court

giving emphasis on the principle of fair trial, has opined that the just

application of its principle in substance is to find out the truth and

prevent miscarriage of justice. It has also been opined that the concept

of fair trial entails the familiar triangulation of interests of the accused,

the victim and society, and it is the community that acts through the

State and prosecuting agencies. It has also been opined that a trial

which is primarily aimed at ascertaining the truth has to be fair to all

concerned. It will not be correct to say that it is only the accused who

must be fairly dealt with. That would be turning a Nelson’s eye to the

needs of society at large and the victims or their family members and

relatives. Public interest in the proper administration of justice must be

given as much importance, if not more, as the interests of the individual

accused. While dealing with the role of the Court, the Apex Court

observed that the courts have a vital role to play. Its role is to discover,

vindicate and establish the truth and hence the trial should be search for

the truth and not a bout over technicalities. The Apex Court further

observed that the Presiding Judge must cease to be a spectator and a

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mere recording machine and he must have active interest and elicit all

relevant materials necessary for reaching the correct conclusion to find

out the truth and administer justice with fairness and impartiality both to

the parties and to the community.

(95). In Zahira Habibulla H. Sheikh (5) (supra) the Apex Court opined

that every State has a constitutional obligation and duty to protect the

life and liberty of its citizens, which is the fundamental requirement for

observance of the rule of law. There cannot be any deviation from this

requirement because of any extraneous factors like caste, creed, religion,

political belief or ideology. The Apex Court further opined that the fair

trial consists not only in technical observance of frame and forms of law,

but also in recognition and just application of its principles in substance,

to find out the truth and prevent miscarriage of justice. In Samadhan

Dhudaka Koli (supra) the Apex Court has reiterated its view that the

prosecution must also be fair to the accused. Fairness in investigation as

also trial is a human right of an accused. In Himanshu Singh Sabharwal

(supra) the Apex Court reiterating the earlier view, has further opined

that the fair trial is inherent in the concept of due process of law and the

fair hearing requires an opportunity to preserve the process. In Nirmala

Singh Kahlon vs State of Punjab and Ors reported in AIR 2009 SC 984,

the Apex Court has reiterated that fair investigation and fair trial are

concomitant to observance of fundamental right of an accused under

Article 21 of the Constitution and hence through the State has a larger

obligation i.e. to maintain law and order, public order and preservation of

peace and harmony in the society, a victim of a crime, thus, is equally

entitled to a fair investigation. In National Human Rights Commission

(supra) commonly known as Godhra Riot Case, the Apex Court has

reiterated the requirement of having fair investigation and the trial.

(96) One of the contentions of the proceedees is that through the

referral authority is required to make the reference to the Tribunal after

making a fair investigation, no such proper and fair investigation is

conducted and the police at their own whims and caprice gives a report,

in some cases even without visiting the place where such proceedee

resides and also without giving any opportunity to produce the relevant

documents to substantiate that the proceedee is not a foreigner, and

such report is accepted by the referral authority and accordingly the

reference is made to the Tribunal, on the basis of which the reference is

registered against such person.

(97)Fair investigation and fair trial being the basic fundamental/human

right of a person, which are concomitant to preservation of the

fundamental right of a person under Article 21 of the Constitution, there

has to be a fair and proper investigation by the investigating agency

before making a reference to the Tribunal. In such investigation the

attempt has to be made to find out the person against whom the

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investigating is made, so that the person concerned is given the

opportunity to demonstrate at that stage itself that he is not a foreigner.

In case the person concerned could not be found out in the village where

he is reported to reside or in a place where he ordinarily resides or works

for gain, the investigating agency has to record the same in presence of

the village elder or the village headman or any respectable person of the

locality, which in turn would ensure visit of the investigating officer to the

place where such person ordinarily resides or reported to reside or works

foe gain and making an effort to find him out for the purpose of giving

him the opportunity to produce the documents etc., if any, to

demonstrate that he is not a foreigner. The investigating officer, as far as

practicable, shall also obtain the signature or thumb impression of the

person against whom such investigation is initiated, after recording his

statement, if any, provided he makes himself available for that purpose.

There are also instances where the person against whom such

investigation is initiated, changes his place of residence, any be in search

of livelihood or may be to avoid detection. To ensure proper investigation

and also having regard to integrity and sovereignty of the nation, once

investigation related to the nationality status of a person starts must

inform the investigating agency in writing about the change of residence,

if any, thereafter. In case such person has failed to intimate the

investigating agency in writing the subsequent change of his place of

residence, the investigating agency has to mention the same report with

his opinion relating to the status of such person on the basis of materials

collected at the place where he earlier resided. That will ensure a fair

investigation and submission of a proper report on such investigation to

the authority. Needless to say, such investigation need not be a detailed

or an exhaustive one keeping in view the nature of the proceeding

before the Tribunal and the object sought to be achieved. Hence it need

not be equalled with an investigation conducted in criminal cases.

(98) The reference by the referral authority also cannot be mechanical.

The referral authority has to apply his mind on the materials collected by

the investigating officer during investigation and make the reference on

being satisfied that there are grounds for making such reference. The

referral authority, howe-ver, need nit pass a detailed order recording his

satisfaction. An order agreeing with the investigation would suffice. The

referral authority also, while making the reference, shall produce all the

materials collected during investigation before the Tribunal as the

Tribunal is required prima facie to satisfy itself about the existence of the

main grounds before issuing the notice to the proceedee.”

17. In paragraph 92 of the judgment of Moslem Mondal (supra), a question

being “Question (D)” had been framed as to in what manner the investigation is

to be carried out by the instrumentality of the State before making a reference

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to the Tribunal under the provisions of Foreigners Order, 1964. In paragraph 93,

it is provided that the right to get a fair trial is a basic, fundamental and human

right and that a fair trial also includes a fair investigation. In paragraph 93, it is

further provided that the right under Article 21 of the Constitution of India is

available to all persons to protect his life and personal liberty and hence even

the right of a non-citizen to have a fair investigation, fair trial as well as fair

procedure to be adopted by the Tribunal is guaranteed under Article 21 of the

Constitution of India. Accordingly, it has to be understood that the right to have

a fair investigation is derived from the fundamental rights under Article 21 of the

Constitution of India.

18. To substantiate the submission on the requirement of there being a fair

investigation, Mr. U Dutta, learned counsel for the petitioners relies upon the

proposition laid down in paragraph 38 of the Hon’ble Supreme Court in Dwarka

Prasad Agarwal (D) by LRS and another –vs- B. D. Agarwal and others, reported

in (2003) 6 SCC 230, which is extracted below:-

“38. There is another aspect of the matter which must also be taken notice

of. A party cannot be made to suffer adversely either indirectly or directly by

reason of an order passed by any court of law which is not binding on him. The

very basis upon which a judicial process can be resorted to is reasonableness

and fairness in a trial. Under our Constitution as also the international treaties

and conventions, the right to get a fair trial is a basic fundamental/human right.

Any procedure which comes in the way of a party in getting a fair trial would be

violative of Article 14 of the Constitution of India. Right to a fair trial by an

independent and impartial Tribunal is part of Article 6(1) of the European

Convention for the Protection of Human Rights and Fundamental Freedoms,

1950 [See Clark (Procurator Fiscal, Kirkcaldy) v. Kelly [(2003) 1 All ER 1106

(PC)] ]. Furthermore, even if the petitioner herein had filed a writ petition

before the High Court in terms of Article 226 of the Constitution of India, the

same would not have been entertained as the impugned order had been passed

consequent to and in furtherance of the purported consent order passed by the

High Court. Ordinarily, the High Court would not have issued a writ of certiorari

for quashing its own order. Even in that view of the matter it is apposite that

this petition under Article 32 should be entertained.”

Page No.# 16/24

19. The judgment cited by the learned counsel for the petitioners i.e.

paragraph 38 in Dwarka Prasad Agarwal (D) (supra) does not appear to be a

relevant proposition on the submission on the requirement of a fair investigation

but as in Moslem Mondal (supra) a three judges judgment of this Court had

provided that fair trial also includes a fair investigation, we look into the aspect

as to what would be a fair investigation in respect of the proceedings under the

Foreigners Act, 1946.

20. Most of the judgments enunciating the principle of fair investigation

pertain to an investigation in a criminal matter where an investigation is being

carried out to achieve some other oblique purpose rather than it being an

investigation in a matter where certain serious criminal allegations are being

raised or where serious allegations are raised but the investigations are

deliberately not done in a required manner so as to give undue advantage to a

prospective accused. But for the purpose of a proceeding under the Foreigners

Act, a fair investigation would be fair enough if the prospective proceedee is

given an opportunity to present his claim before the enquiry or the investigating

authority that he is otherwise a citizen of India.

21. The said proposition can also be found to have been laid down in

paragraph 97 of Moslem Mondal (supra). In paragraph 97 of Moslem Mondal

(supra) it has specifically been provided that a fair investigation would be a

concomitant to preservation of the fundamental rights of a person under Article

21 of the Constitution of India and in such investigation the attempt has to be

made to find out the person against whom the investigation is made so that the

person concerned is given the opportunity to demonstrate at that stage itself

that he is not a foreigner. The proposition in paragraph 97 of Moslem Mondal

(supra) is consistent with what we have already discussed that in respect of the

Page No.# 17/24

proceeding under Foreigners Act, a fair investigation would be sufficient if an

opportunity is given to the prospective proceedee to present or demonstrate

with any relevant material that he is not a foreigner or that he is an Indian

citizen.

22. The provision of paragraph 97 itself makes it discernable that the

dominant purpose of an investigation or an enquiry is to provide the prospective

proceedee with an opportunity to present or demonstrate that he is an Indian

citizen or that he is not a foreigner before he is referred. But the said

requirement to give an opportunity to the prospective proceedee to present or

demonstrate that he is not a foreigner is again qualified with the further

provision of paragraph 97 which provides that to ensure proper investigation

and also having regard to the integrity and sovereignty of the nation, once an

investigation relating to the nationality, status of a person starts, he must inform

the investigating agency in writing about the change of residence, if any,

thereafter. The said provision in paragraph 97 makes it inherent that to avail the

benefits of the opportunity to be given during the investigation, a corresponding

cooperation from the prospective proceedee is also a requirement and the

requirement is to the extent that the proceedee must at all point of time during

the process of investigation should make it known to the investigating authority

about his whereabouts or his location where the authority may find him.

23. A corollary to the said provision of requiring the prospective proceedee to

inform the investigating authority about his whereabouts would also be that

there is a requirement of the prospective proceedee to cooperate with the

investigating authority and not to avoid the investigation.

24. The said provisions which are inbuilt within paragraph 97 of the Moslem

Mondal (supra) make it apparent that the provisions thereof for giving an

Page No.# 18/24

opportunity to the prospective proceedee are not to enable a prospective

proceedee to move away and disappear from being available before the

investigating authority so as to create an obstacle in the continuation of the

investigation.

25. In this respect, we also take note that the requirement of an enquiry

preceding a reference made to the Foreigners’ Tribunal is a provision of Rule 3

of the Illegal Migrants (Determination by Tribunals) Rules, 1983, which is

extracted as below:

“3. Preliminary Inquiry- For the purpose of making a reference in relation to any

person under sub-section (1) of Section 8

1

[and sub-section (1) of Section 8A] to the

Tribunal (including consideration as to whether a question such as is referred to in that

section has arisen in relation to such person), –

(a) the competent authority seized of the matter shall

require the Superintendent of Police to direct, or

(b) where such competent authority is the Superintended of Police himself, the

Superintendent of Police shall direct, any officer not below the rank of a Sub-Inspector

of Police to make an inquiry.”

26. Rule 3 of the Illegal Migrants (Determination by Tribunals) Rule, 1983

makes it a requirement that for the purpose of making a reference under

Section 8 of the Illegal Migrants (Determination by Tribunals) Act, 1983 there is

a pre-requirement of the Superintendent of Police to make an enquiry through

an officer not below the rank of Sub-Inspector of Police as to whether the

questions referred in Section 8 or Section 8(A) of the Illegal Migrants

(Determination by Tribunals) Act, 1983 exists in a given case.

27. Section 8(1) of the Illegal Migrants (Determination by Tribunals) Act, 1983

provides for a representation to be made by any such person against any order

under the Foreigners Act, 1946 requiring him not to remain in India or to any

other effect whereas Section 8A (1) refers to any person making an application

to the Tribunal for its decision as to whether the person whose name and other

Page No.# 19/24

particulars are given in the application, is or is not a foreigner.

28. But be that as it may, the Hon’ble Supreme Court in its judgment

rendered in Sarbananda Sonowal v. Union of India and Another, reported in

(2005) 5 SCC 665 had struck down the Illegal Migrants (Determination by

Tribunals) Act, 1983 meaning thereby that as a corollary thereof Rule 3 of the

Illegal Migrants (Determination by Tribunals) Rules, 1983 had also been set

aside by implication. In such situation, there would be no statutory requirement

for the referring authority to make any enquiry preceding a reference made to

the Tribunal but however, in paragraph 97 of the Moslem Mondal (supra) the

three judges judgment brings the requirement of an enquiry or an investigation

by providing it to be a requirement of Article 21 of the Constitution of India.

29. As the requirement to make an enquiry is no longer a statutory

requirement but a requirement under Article 21 of the Constitution, as provided

in paragraph 97 of Moslem Mondal (supra), we will have to understand the

purport, nature and extent of the enquiry as provided in paragraph 97 of

Moslem Mondal (supra).

30. As already, indicated above the dominant purpose of the provisions of

paragraph 97 of Moslem Mondal (supra) is to afford the prospective proceedee

an opportunity to present or demonstrate before the investigating authority

itself that he is not a foreigner.

31. The further provision is that the prospective proceedee has to keep the

investigating authority informed about his whereabouts and also to give specific

location as to where he may be found in the event the proceedee decides to

change his residence. The provisions in paragraph 97 of Moslem Mondal(supra)

itself makes it imperative that the prospective proceedee has to make himself

available before the investigating agency which again would mean that he is not

Page No.# 20/24

expected to make his disappearance from the availability before the

investigating agency so as to frustrate the investigation. Accordingly, we clarify

that the provisions of paragraph 97 of Moslem Mondal(supra) is available for the

purpose of affording the prospective proceedee an opportunity to present that

he is a citizen of India and not a foreigner and it cannot be understood to be a

provision which may enable the prospective proceedee to frustrate the enquiry

or investigation by making himself deliberately unavailable to the investigating

agency and thereafter taking advantage of his own unavailability to take the

stand that the proceeding that may be drawn against him would be vitiated.

32. We are clarifying further that we are not in any manner deviating,

disagreeing or diluting the provisions of paragraph 97 of Moslem Mondal

(supra), but only clarifying to the extent as to what would be the effect if the

prospective proceedee deliberately disappears and makes himself unavailable

before the investigating agency so as to frustrate the entire judicial system.

33. When we have perused the records of the instant case, it is noticed that

the investigating agency had given adequate opportunity to the writ petitioner

Md. Intaz Ali as well as to the writ petitioner Asmina Khatun. As appropriate

opportunity had been given by the investigating agency to the aforesaid two

writ petitioners it cannot be said that the requirement of paragraph 97 of

Moslem Mondal (supra) was not complied with.

34. But in respect of the other two writ petitioners Md. Jakir Hussain and

Musstt. Imrana Khatun records do not reveal that the investigating authority

had given them the opportunity.

35. Mr. U Dutta, learned counsel for the writ petitioners has raised another

contention that the writ petitioners Musstt. Asmina Khatun and Musstt. Imrana

Khatun have been referred along with their husband/father namely, Md. Intaz

Page No.# 21/24

Ali and, therefore, the reference made in respect of the said three writ

petitioners would be vitiated in view of the propositions laid down in paragraph

9 of the judgment rendered in Sudhir Roy (supra). In paragraph 9 of the

judgment in Sudhir Roy (supra) it had been provided that it may be a good

cause for the referring authority to initiate an enquiry and make a reference

against the family members of a proceedee, but without following the due

procedure of law conducting an enquiry and making a reference and being

adjudicated by the Tribunal, the family members cannot be declared to be

foreigners.

36. In the instant case, we have noticed that the enquiry had been made

against the writ petitioner Musstt. Asmina Khatun as revealed from the records.

From such point of view, factually the proposition laid down in paragraph 9 of

Sudhir Roy (supra) would be inapplicable in respect of the writ petitioner Musstt.

Asmina Khatun.

37. We also clarify that nothing is indicated in the records that the writ

petitioners Md. Jakir Hussain and Musstt. Imrana Khatun have made themselves

unavailable before the enquiring authority or investigating agency so as to

disable the authority to make an enquiry. Accordingly, we hold that the

references as well as opinion dated 21.12.2018 in Case No.F.T.(C) No.203/2015

rendered against the writ petitioners Md. Jakir Hussain and Musstt. Imrana

Khatun would be unsustainable in law. But however, as the said declaration is

made on a technical aspect in a combined opinion being rendered against the

said writ petitioners along with their father Intaz Ali in deviation of the

provisions in paragraph 9 of Sudhir Roy (supra), we grant liberty to the referring

authority, if so advised, to give the said two writ petitioners namely Md. Jakir

Hussain and Musstt. Imrana Khatun an opportunity to present any materials

Page No.# 22/24

that they may have to prove that they are citizens of India and upon such

opportunity being given, liberty remains to make a reference against them, if so

advised and also maintainable under the law.

38. As regards the writ petitioners Md. Intaz Ali and Musstt. Asmina Khatun,

as records reveal that the required procedure of law have been followed, we

now examine the submissions raised by the said two writ petitioners for

discharging the burden under Section 9 of the Foreigners Act, 1946 that they

are citizens of India.

39. In respect of the writ petitioner Md. Intaz Ali, reliance is placed on the

voters list of 1971 of village Nagabandha, Mouza Lahorighat, PS Lahorighat in

the Nagaon district which contains the name of Md. Jamiruddin son of Khalil at

Sl.No.1063. Thereupon reliance is placed on the voters list of 1985 of village

Nagabandha, Mouza Lahorighat, PS Lahorighat which contains the name of Md.

Jamiruddin son of Khalil at Sl.No.194, Musstt. Sabarjan wife of Jamiruddin at

Sl.No.195 and Md. Muktab Ali son of Jamiruddin at Sl. No.196 and accordingly

claim is made that Musstt. Sabarjan is the wife of Jamiruddin and Md. Muktab

Ali son of Jamiruddin is the elder brother of Md. Intaz Ali. Thereupon reliance is

placed on the voters list of 1997 of village Nagabandha, Mouza Lahorighat, PS

Lahorighat in the Nagaon district which contains the name of Intaz Ali son of

Jamir at Sl.No.340 and that of Asmina Khatun wife of Intaz at Sl.No.341. By

referring to Sl.No.340 of the voters list of 1997 that Intaz Ali is the son of Jamir

of village Nagabandha, a linkage is claimed with Md. Jamiruddin of the voters

list of 1971 of village Nagabandha to claim that Intaz Ali is also a citizen of

India. But it is also noticed that the further voters list of 2015 relied upon by the

petitioner contains the name of Intaz Ali son of Jamiruddin of village Kalikajari,

PS Mikirbheta in the Morigaon district and not village Nagabandha.

Page No.# 23/24

40. We have noticed that the notice of the Tribunal is issued against Md. Intaz

Ali, son of Late Jamir of village Uttar Kalikajari, Islampur. No material is available

before the Tribunal that Intaz Ali son of Jamir at Sl.No.340 of the voters list of

1997 of village Nagabandha, Mouza Lahorighat PS Lahorighat in the Nagaon

district and Intaz Ali son of Jamiruddin of village Kalikajari, PS Mikirbheta in the

Morigaon district of 2015 voters list are one and the same person. The

petitioner also referred to a copy of the Jamabandi wherein an order of the

Circle Officer dated 27.11.2019 is referred which provides that in respect of a

plot of land bearing dag No.184 of village Nagabandha had been mutated by

deleting the name of Jamiruddin son of Khalil and substituting it with the name

of Md. Muktab Hussain son of Jamiruddin and Musstt. Hasen Banu, daughter of

Jamiruddin and Md. Intaz Ali son of Jamiruddin. No lineage is provided that

Musstt. Asmina Khatun of village Nagabanda of 1997 voters list may be a citizen

of India, but whether Md. Intaz Ali son of Jamir of village Kalikajari of 2015

voters list and Intaz Ali son of Jamir of village Nagabandha of 1997 voters list as

well as Md. Intaz Ali appearing in the Jamabandi are one and the same person,

also requires a determination.

41. For the purpose the matter stands remanded back to the Tribunal to

enable the petitioner Md. Intaz Ali to adduce any evidence that he may desire to

rely upon to substantiate that Md. Intaz Ali of village Nagabandha of the voters

list of 1997 and Md. Intaz Ali of village Kalikajari of 2015 voters list are one and

the same person. As regards the petitioner Musstt. Asmina Khatun, no material

is placed before the Court that she is a citizen of India through the lineage of

her father, although the lineage of her husband Md.Intaz Ali may be available.

We accordingly allow another opportunity to the writ petitioner Musstt. Asmina

Khatun to adduce any evidence before the Tribunal which may establish that

Order downloaded on 24-12-2024 06:24:00 PMPage No.# 24/24

she is a citizen of India and thereby discharge the burden under Section 9 of the

Foreigners Act 1946.

42. The writ petitioner Md. Intaz Ali and the writ petitioner Musstt. Asmina

Khatun to appear before the Foreigners Tribunal No.3 at Morigaon on

11.05.2023.

43. The Tribunal upon considering the evidence and materials that may be

produced by the said two writ petitioners Md. Intaz Ali and Musstt. Asmina

Khatun shall pass a reasoned order. In the event, the reasoned order is in

favour of the petitioners, the same shall prevail over the order dated 21.12.2018

of the Foreigners Tribunal No.3 Morigaon in F.T.(C) Case No.203/2015 and if it is

against the petitioners, consequential action shall follow.

44. However, with respect to the writ petitioner Md. Jakir Hussain and Musstt.

Imrana Khatun liberty remains to the respondent authority to refer them if so

advised by following the due procedure of law as indicated above.

45. Till the reasoned order is passed, no coercive action be taken against the

petitioners.

46. Send back the LCR immediately.

47. Both the writ petitions stand disposed of in the above terms.

J U D G E J U D G E

Comparing Assistant