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Government Appeals (Criminal) Nos. 1 of 1964; 2 and 7 of 1963, decided on 16th February 1968.

S. 14 read with Criminal Procedure Code (V of 1898), S. 403(1)‑Quit notice, contravention of‑-Each contravention constitutes fresh offence-‑Prosecutions for previous quit notices no bar to prosecution for fresh quit notice.

Whenever a notice to quit is issued and it is contravened, an offence is committed. In other words, every contravention of every notice to quit constitutes a fresh offence. If this be not so, the result would be disastrous for the reason that a foreigner once convicted or acquitted for contravening a quit notice would become immune from further prosecution and this would enable him to go on residing in this country illegally but with impunity. Section 403 of the Code does not conceive of such a situation.

Amir Khan v. The State 13 D L R 892 held not applicable.

Purnananda Das Gupta v. Emperor A I R 1939 Cal. 65 rel.

A. T. M. Masud with Sultan Ah mad for Appellant (in all Appeals).

Mozammel Huq for Respondent (in Appeal No. 1 of 1964).

Serajul Huq for Respondent (in Appeal No. 2 of 1963).

Azizuddin Ahmad for Respondent (in Appeal No. 7 of 1963).

.‑These three Government Appeals against the orders of acquittal involving some common questions of law have been heard together, and this judgment will dispose of all of them.

2. The prosecution case in Appeal No. 1 of 1964 is that the accused Jilani Khan, an Afghan national who has been residing at Chittagong, was served on 8‑11‑59 with Notice No. 7215/HSP, dated 13‑10‑59 requiring him to quit Pakistan within one month from the date of service of the notice, but he did not quit Pakistan in spite of service of the notice. Accordingly he was prosecuted under section 14 of the Foreigners Act, 1946 for contravention of the notice to quit. The further allegation against this accused was that he violated the provision of Rule 11 (1) of the Registration of Foreigners Rules, 1939 made under the Registrations of Foreigners Act, 1939, by not reporting his change of address at Chittagong to the Registration Officer of Foreigners. Accordingly, he was tried for an offence also under section 5 of the Registration of Foreigners Act, 1939. Mr. M. A. Qasmi, a Magistrate of the First Class at Chittagong, convicted the accused for both the offences and sentenced him to suffer rigorous imprisonment for two years under the first count under section 14 of the Foreigners Act. He was also fined Rs. 1,000 under the same section and, in default, he was to suffer rigorous imprisonment for six months. On his conviction under section 5 of the Foreigners Act, 1939, he was sentenced to pay a fine of Rs. 800 and to suffer rigorous imprisonment for three months in default of payment of the fine. The sentence of imprisonment in default of fine under section 5 of the Registration of Foreigners Act, 1939 was to run concurrently with the substan tive sentence of imprisonment on the first Court.

3. The accused preferred an appeal to the Court of Session at Chittagong, being Criminal Appeal No. 59 of 1963 against the order of conviction and sentences. The Sessions Judge allowed the appeal and set aside the conviction and sentences on the short ground that the accused having been convicted thrice previously under section 14 of the Foreigners Act, could not be tried once again.

4. In Appeal No. 2 of 1963, the accused Abdul Mannan Khan, another Afghan national residing at Narayanganj was similarly served with a quit notice, being, Notice No. 824‑SF, dated 11‑7‑1961, requiring him to leave Pakistan within one month from the date of service of the notice. As he failed to leave Pakistan in spite of the notice, he was put on trial for an offence under section 14 of the Foreigners Act, 1946. In the trial, he was found guilty of the offence with which he was charged and was sentenced to imprisonment till the rising of the Court, and was ordered to pay a fine of Rs. 200 and to suffer rigorous imprisonment for one month in default of payment of the fine.

5. The accused preferred an appeal to the Court of Session at Dacca, being Criminal Appeal No. 335 of 1962. The Sessions Judge allowed the appeal and set aside the conviction and sentence on the ground that in view of his previous conviction on several occasions for his un-authorised stay in Pakistan his further trial was illegal.

6. In Appeal No. 7 of 1963, the accused Malal Khan, yet another Afghan National residing at Narayanganj was also served with a notice on 7‑9‑59, being Notice No. 5921‑HS (P), dated 31‑7‑59 requiring him to leave Pakistan, but he did not quit. He was charged with an offence under section 14 of the Foreigners Act, 1946. The trying Magistrate convicted him under the said section and sentenced him to imprisonment till the rising of the Court and to pay a fine of Rs. 300 in default to suffer rigorous imprisonment for two months.

7. The accused preferred an appeal to the Sessions Judge of Dacca, being Criminal Appeal also was allowed mainly on the ground that his trial was bad in law as the previous case against him for staying in Pakistan without authority ended in acquittal.

8. In the appeals preferred by the accused Jilani Khan and Abdul Mannan Khan, the Courts of appeal below relied on the decision of this Court in the case of Amir Khan v. The State (13 D L R 892) in support of the view taken by them as regards the maintain ability of the trial. The cited decision which is one on its own facts was based on the interpretation of section 403 of the Code of Criminal Procedure. In the appeal preferred by the accused Malal Khan, the learned Sessions Judge also relied on section 403 of the Code of Criminal Procedure in support of his view and found that Malal Khan's trial was illegal.

9. It appears from the decisions cited in 13 D L R 892 that the accused in that case was once charged for contraven tion of the provision of clause 7 of the Foreigners Order, 1951 and was convicted. Subsequently, the same accused was proceeded against for the contravention of the said clause 7 of the Foreigners Order, 1951. In both the trials in respect of that accused, the charge was that he was staying in Pakistan without any authority. Having regard to the charges successively levelled in two different cases, it was held in the cited case that the accused of that case could not be put on trial for the second time for the same offence in view of the bar under section 403 of the Criminal Procedure Code. In other words in the said case it was held that the offence with which the accused was charged in the successive trials was the same.

10. It appears that the decision reported in 13 D L R 892 was relied on by the Sessions Judges in Criminal Appeal No. 59 of 1963 of Chittagong and Criminal Appeal No. 335 of 1962 of Dacca without ascertaining for what offence or offences the accused concerned had been tried and convicted previously. The learned Sessions Judges in those appeals proceeded on the basis that once a foreigner residing in Pakistan is convicted for his unauthorised stay, he can no more be put on trial, even if he contravenes a notice requiring him to quit the country. Although the decision reported in 13 D. L. R. 892 was not referred to by the Sessions Judge of Dacca in Criminal Appeal No. 350 of 1962, he also proceeded likewise because of the provision of section 403 of the Code of Criminal Procedure. Subsection (1) of section 403 of the Code which is relevant here, runs thus :‑

"A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under section 236, or for which he might have been convicted under section 237:"

This section bars a fresh trial of the same accused for the same offence in respect of which he had already been tried by a Court of competent jurisdiction, whether the previous trial ended in conviction or acquittal ; it also bars a trial of the same accused on the same facts for any other offence with which he might have been charged. As already stated in none of the cases the Courts of appeal below ascertained the particulars of the previous trial of the accused persons. In Criminal Appeal No. 59 of 1953 of Chittagong, the learned Sessions Judge merely took judicial notice that the accused concerned had been previously convicted for the same offence thrice. In Criminal Appeal No. 335 of 1962 of Dacca, the learned Sessions Judge simply remained content by saying that the accused was previously convicted on several occasions for living in this country without permit, but did not ascertain the exact charges levelled against him on previous trials. Lastly, in Criminal Appeal No. 350 of Dacca, the learned Sessions Judge simply stated that there was another case against the accused on the self‑same ground, but he was acquitted. The particulars of the charge in the previous trial against the accused were not ascertained in this case either. Thus there were no materials before the Courts of Appeal below as regards the nature of the earlier charges against the accused per sons nor did those Courts arrive at any finding on the basis of any materials as to whether the accused persons had been put on trial earlier for the same or on the same facts as in the present cases. It was not therefore, quite in order on the parts of the Courts of appeal below to hold that the decision in 13 D L R 892 or for the matter, section 403 of the Code is a bar to the trial of the accused person.

11. In order to ascertain the particulars of the previous trials of the present accused persons, the records of those trials were called for by this Court, and some of those records have arrived. It appears from those records that the accused Jilani Khan, who was residing in this country without valid visa was ordered to quit this country but, he contravened that order. A charge was accordingly framed against him in G. R. Case No. 696 of 1956. Next, it appears that in G. R. Case No. 877 of 1958 the same accused Jilani Khan, was put on trial for overstaying in Pakistan without valid visa in contravention of clause 7 of the Foreigners Order, 1959. The accused Abdul Mannan Khan was earlier placed on trial in G. R. Case No. 700 of 1958 on the ground of his stay in Pakistan without any valid residential permit. The charge against him was on account of contravention of clause 7 of the Foreigners Order. This accused was next charged in G. R. Case No. 1165 of 1960 for contravention of an other notice to quit this country. The accused Malal Khan, it appears, was once put on trial for illegal entry into Pakistan and his stay in Pakistan without any authority.

12. In the present cases, the accused persons were put on trial on the ground of their having contravened the order directing them to leave Pakistan. The quit notices issued on the accused Jilani Khan and Mannan Khan on earlier occasion are of different dates, and they were ordered to quit within specified periods. But the quit notices on them in the present cases are of subsequent dates and the periods within which these accused were to quit the country are also different from those mentioned in the earlier quit notices. It cannot, therefore, be said that the contravention of earlier quit notices by any of them is the same as the contravention of the notices to quit issued in the present cases. Whenever a notice to quit is issued and it is contravened, an offence is committed. In other words, every contravention of every notice to quit constitutes a. fresh offence. If this be not so, the result would be disastrous for the reason that a foreigner once convicted or acquitted for contravening a quit notice would become immune from further prosecution and this would enable him to go on residing in this country illegally but with impunity. Section 403 of the Code does not conceive of such a situation. The same view was taken by a Full Bench of the Calcutta High Court in the case of Purnananda Das Gupta v. Emperor (A I R 1939 Cal. 65). Thus the contravention of earlier notices to quit by the accused Jilani Khan and Abdul Mannan Khan constituted offences separate and distinct from the offences on account of the contrvention of the quit notices by them in the present cases.

13. As already stated, some charges were made in the past against the accused Jilani Khan, Abdul Mannan Khan and Malal Khan for staying in Pakistan without any authority or permit. But the charges on that score against them are quite different from the charge in the present cases which is one only on account of contra vention of the quit notices respectively served on them. We do not, therefore, think that the decision of this Court in 13 D L R 892 in which the offence involved in both the trials were found to be same, is applicable in the instant cases, nor does section 403 of the Code of Criminal Procedure is applicable here for the reason that the contravention of each successive notice to quit constitu tes a separate and distinct offence. The Court of appeal below were not therefore, correct in holding that the present trials of the accused persons were illegal.

14. Another common point of law raised in these cases is that the quit notices were not issued by any person or authority duly empowered to do so. In this connection, our attention was drawn to section 12 of the Foreigners Act, 1946. According to this section, the Central Government's power to make an order under the Act could be delegated only to an authority subordinate to the Central Government. In the present cases the notices to quit were issued by the Provincial Government. It is, therefore, contended on behalf of the accused persons that the issue of the quit notices by the Provincial Government was unauthorised. It appears from the Notification No. 10-6‑54 Poll (1), dated 11th March, 1958 that in the exercise of the powers conferred by clause (1), Article 127 of the Constitution of 1956, the President, with the concurrence of the Provincial Government, entrusted to the Provincial Government a number of functions including the function to make orders under the Foreigners Act, 1946. The power delegated to the Provincial Government by the said Notification, in view of the Laws (Continuance in Force) Order, 1958, read with Article 225 and Article 250 of the present Constitution, subsisted at the time of issuing the quit notices in the present cases. Thus the quit notices issued in these cases were issued by the Provincial Government with authority.

15. Since all the three appeals are Government appeals against the orders of acquittal, we were inclined to dispose of all of them on merits also. But we have been confronted with some difficulty. Criminal Appeal No. 59 of 1963 of Chittagong, the learned Sessions Judge did not deal with the question whether the quit notice was served on the accused Jilani Khan, although proof of service of the quit notice is essential. Again in the same Criminal Appeal No. 59 of 1963, there was another charge against Jilani Khan on the ground of his having violated the Rule 11 (1) of the Registration of Foreigners Rules. The learned Sessions Judge remained completely silent about that charge.

16. In Criminal Appeal No. 335 of 1962 of Dacca, the learned Sessions Judge delivered a very short judgment of acquittal, but did not decide whether the notice to quit was served on the accused.

17. Lastly, in Criminal Appeal No. 350 of 1962 of Dacca the judgment suffers from similar defect, although the learned Sessions Judge took notice of some evidence with regard to the service of the quit notice. For these reasons, it has become necessary to remand the cases to the respective Courts of appeal below for rehearing of the appeals.

18. In the result, we allow the three appeals, set aside the orders of acquittal and remand the cases to the respective Courts of appeal below for re‑hearing of the appeals according to law.

Appeals allowed.

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