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REPORTABLE IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 267 OF 2019 (Arising out of SLP (Crl.) No. 4500/2018)

SIRAJUL HOQUE                                     Appellant(s)

VERSUS

THE STATE OF ASSAM & ORS.                        Respondent(s)

J U D G M E N T

   R.F. Nariman, J.

1) Leave granted.

2) The present appeal raises an issue as to whether the

appellant  herein  has  been  declared  to  be  a  foreigner

incorrectly.   By  the  Foreigner’s  Tribunal  judgment  dated

19.01.2017, after referring to some of the documents produced

by  the  appellant,  and  after  finding  that  there  was  a

discrepancy in the name of the grandfather and the fact that

the  grandfather  and  the  father  later  lived  in  different

villages,  the  Tribunal  declared  the  appellant  to  be  a

foreigner.  The High Court dismissed the writ petition filed

against the same judgment  stating:

“Having said that we may look into the written

statement filed by the petitioner before the

Tribunal.   In  a  proceeding  before  the

Foreigners’  Tribunal  where  the  citizenship

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status of the proceedee is being questioned,

that  too,  by  the  State,  the  proceedee  must

disclose all material facts within his special

knowledge  relevant  for  establishing  his

citizenship at the first instance itself i.e.,

in the written statement.  In other words, he

must be able to plead about his identity as a

citizen of India.  This would be as per the

requirement  of  Section  9  of  the  Foreigners’

Act,  1946,  which  is  in  pari  materia  to  the

provision of Section 106 of the Evidence Act,

1872.  Thereafter, the material facts pleaded

in  the  written  statement  are  required  to  be

proved  in  accordance  with  law  by  adducing

cogent and reliable evidence.  In the written

statement, petitioner did not even mention his

name; not to speak of his date of birth or year

of birth.  All that he stated was that he was

born at Village-Sagolchora in the district of

Dhubri and that his parents were voters in the

voters’ list of 1997.  His grand-parents were

voters of 1966-1970.  Only in the verification

column, he described his name as Sirajul Haque.

This is all that the petitioner stated in the

written statement.  This is not only inadequate

but  does  not  in  any  manner  lead  to  the

identification  of  the  petitioner  as  an

individual, not to speak of identification of

the petitioner as a citizen of India.  It is

not a case of violation of the principles of

natural  justice  or  procedural  impropriety.

Neither  can  it  be  said  to  be  a  case  of

perversity.”

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3) We have heard learned counsel for both sides extensively

and have gone through the documents produced by the appellant

ourselves.  On a perusal of the same, we find that a number of

documents have been relied upon by the appellant starting with

a  voters’  list  of  his  grandfather  Kematullah  in  villge

Sotobashjani.  There is no doubt that the great grandfather’s

name  Amtullah  appears  as  Amtullah  throughout  the  document.

Equally,  there  is  no  doubt  about  the  father’s  name  which

appears as Hakim Ali throughout.  The only discrepancy found

is  that  in  some  of  the  documents  Kefatullah  later  becomes

Kematullah.  However, what is important to note is that his

father’s  name  Amtullah  continues  as  Amtullah  and  the  other

family members associated continued as such.  Also produced

are  NRC  Registration  details  of  the  year  1971  of  the

grandfather who is noted to be Kefatullah in this document.

Other  voters  lists  are  then  produced  where  the  letter  F

becomes the letter M with other family names remaining the

same.  In fact, the appellant has himself produced a document

of 1981 from the Income Tax Department giving his Permanent

Account  Number.   Apart  from  these  documents,  certain  other

later  documents  have  also  been  produced  including  photo

identity cards issued by the Election Commission of India and

identity cards issued to his brother including voters lists in

which the appellant’s name appears.

4) Having gone through these documents, we are of the view

that it is not possible to state that Kematullah is not the

same despite being named Kefatullah in some of the documents.

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This being so, the grandfather’s identity, father’s identity

etc.  has  been  established  successfully  by  the  appellant.

Further, the mere fact that the father may later have gone to

another village is no reason to doubt this document.

5) We, therefore, set aside the judgment of the High Court

as well as the Foreigner’s Tribunal and allow the appeal.

6) As a result thereof, the appellant is liable to be set

free at once.

  .......................... J.    (ROHINTON FALI NARIMAN)

  .......................... J.              (VINEET SARAN)

New Delhi; February 14, 2019.