Govinda Menon, J.

1. This is an appeal filed by the State against the order of the District Magistrate (J), Kozhikode in C. C. 165/58 under which he acquitted the respondent. The charge-sheet filed by the police against the respondent was for offence under Rule 3 read with Rule 6 of the Indian Passport Rules and para 7 of the Indian Foreigners Act, 1946. The case was that the accused who is a Pakistanee citizen had come to Kundotti within the Indian Union on 16-3-53 with a valid passport and visa issued by the High Commissioner for India in Pakistan and returned to Pakistan on 2-12-53 and that later he again came to India and was found at Kundotti on 14-9-58 without a passport or visa or any valid travel document from the authorities concerned or a residential passport for stay in India. P. W. 1 is the Sub Inspector of Police who was in Kundotti till December 1955. He has proved that the accused had gone to his police station on 16-9-53 with a Pakistan passport No. 126015 and C. Visa No. 38420 dated 3-9-53, that his arrival had been noted in the station general diary and that the accused had left India on 2-12-1953. He proved Ext. P. 1, the register of Pakistanees maintained in the regular course of business at his police station. Ext. P. 2 is the particular entry with regard to this accused. Ext. P. 3 is a C. Visa application of the accused, wherein the accused has described himself as a Pakistanee. Ext. P. 4 is the memo received by him along with Ext. P. 3 from the District Police Office, Kozhikode and Ext. P. 5 is the endorsement on Ext. P. 4 made by P. W. 1. P. W. 2 is the Adhikari of the Kundotti amsom. He says that the accused is a Pakistanee since 10 years and that since about 6 months he has been seeing the accused in Kundotti. P. W. 3 is the Sub-Inspector of Police, Kundotti who arrested the accused on 14-9-58. He says that when the accused was arrested, he had with him a certificate of identity, Ext. P. 6, issued by the Political Agent in Persian Gulf. P. W. 4 is a clerk in the District Police Office who proved the documents which he had produced from the office of the District Superintendent of Police. On this evidence a charge under Section 14 of the Foreigners Act 1946 read with para 7 of the Foreigners Order 1948 was framed against the accused. No charge was framed under Rule 3 read with Rule 6 of the Indian Passport Rules. It is not known why such a charge was not framed or why the Public Prosecutor did not request the court to frame such a charge.

2. The case of the accused was that he is not a foreigner, but he is an Indian citizen. He relies on Ext. P. 6 the identity card. When questioned about Ext. P. 3, the application for visa, he admitted his signature to that document, but he denied knowledge of its contents and stated that the entries contained therein were made by his brother and that what is contained therein is not correct. According to his statement, it is clear that he had no passport or visa to visit India and his case seems to be that he is an Indian citizen and as such there is no need for any passport or visa. The learned District Magistrate held that the prosecution has not succeeded in proving that the accused is a foreigner and therefore found him not guilty under para 7 of the Foreigners Order 1948 and acquitted the accused.

3. Para 7 of the Foreigners Order relates to "Restriction on sojourn in India". It reads as follows:

Every foreigner who enters India on the authority of a visa issued in pursuance of the Indian Passport Act, 1920 (XXXIV of 1920) shall obtain from the Registration Officer having jurisdiction, "either at the place at which the said foreigner enters India or at the place at which he presents a registration report in accordance with rule 6 of the Registration of Foreigners Rules 1939", a permit indicating the period during which he is authorised to remain in India and shall, unless the period indicated in the permit is extended by the Central Government, depart from India before the expiry of the said period; and at the time of foreigners departure from India the permit shall be surrendered by him to the Registration Officer having jurisdiction at the place from which he departs:

Provided that this requirement shall be deemed to have been complied with by a foreigner who enters India as a "Tourist" is granted a certificate of Registration in Form D as provided for in the Registration of Foreigners Rules, 1939.

4. Section 14 of the Foreigners Act is the Penal Section. It says that:

If any person contravenes the provisions of this Act or of any order made thereunder, or any direction given in pursuance of this Act or such order, he shall be punished with imprisonment and fine.

So for an offence under para 7 of the Foreigners Order read with Section 14 of the Foreigners Act, the prosecution has to prove that the accused is a foreigner who had entered India on the authority of a visa issued under the Indian Passport Act, but failed to do certain things enjoined under para 7 of the Foreigners Order.

5. The prosecution has attempted to prove that the accused is a foreigner mainly on the strength of his application for a visa for India of Category C. In his application he has given Karachi, which is in Pakistan, as his permanent address. He has shown under column 6 "National Status" as Pakistan and he has shown the purpose of his visit to India as seeing his brother and children in Kundotti. The period for the visa was shown as 3 months and he has shown the date of migration to Pakistan as 1945." The accuseds photo is affixed in the application and it is on the strength of this application that passport and visa were issued to him in 1953. In his Section 342 questioning, the accused when confronted with Ext. P. 3, stated that he had not signed Ext. P. 3, but in the written statement filed by the accused on 14-3-1959 he has admitted that his brother had got his signature in the application form that he did not know as to what the contents therein were and his case seems to be that in his anxiety to go back to his native place he had signed in the application. There is evidence of P. W. 1 the Sub Inspector that the accused came to the police station with the Pakistan passport No. 126015 and C. Visa No. 38402 and he reported at the station on 16-9-53. He says that he entered the report at once in the general diary and in a separate register kept for recording the entry and departure of Pakistanees. He says that the entries were made in the general diary, but the book is not available as general diaries are preserved only for one year and might have been destroyed. He has proved the entry in the register Ext. P. 1, and Ext. P. 2 is the relevant entry in the Register.

6. The learned District Magistrate has relied on Ext. P. 6. It is a certificate of identity granted by the Political Officer, Abu Dabi at Persian Gulf. Ext. P. 6 only states that the accused has told the officer that he is a citizen of India, not that he has found so after any enquiry. It is only stated that the officer had no reason to doubt his statement. It cannot be taken to be a certificate that the accused is a citizen of India and that he is not a foreigner and it cannot take away the effect of the evidence of P. W. 1 and of Ext. P. 3 his application for visa. Prima facie when a person enters India under a passport and visa obtained by him on application submitted by him claiming that he is a national of a foreign country and that he desired to vist India for particular purpose and for a limited period, it may be assumed that he is not a citizen of India. But a decision on this question is not necessary for the purpose of the disposal of this appeal. Being a foreigner alone is not sufficient to make out an offence under para 7. As stated earlier, the foreigner must have entered India under a valid permit and failed to do certain things mentioned under para 7. Here there is no case for the prosecution that the accused entered India under a valid passport. Therefore even if the accused is considered to be a foreigner, offence under para 7 read with Section 14 of the Foreigners Act is not made out. The learned Public Prosecutor frankly conceded that the acquittal of the accused under para 7 of the Foreigners Order cannot therefore be challenged.

7. The learned Public Prosecutor however contends that the District Magistrate on the evidence tendered by the prosecution ought to have found that he is a foreigner and ought to have framed a charge under Rule 3 read with Rule 6 of the Passport Rules. He referred us to the observation at the end of para 8 of the judgment, wherein the District Magistrate has stated :

Probably on the basis of these facts an offence punishable under Rule 3 read along with rule 6 of the Indian Passport Rules may lie as against the accused.

It is therefore argued that the learned District Magistrate ought to have amended the charge as he is empowered to do and the acquittal without doing so is wrong and contrary to law. He further argues that under sections 236 and 237, Criminal Precedure Code, this Court has ample powers to find the accused guilty of the offence under Rule 3 read with Rule 6 of the Indian Passport Rules on the evidence adduced in the case.

8. The respondent whether a foreigner or a citizen of India had no case that he entered the territories of India with a passport. If that is so the question for determination would be whether his act in so entering amounts to an offence punishable under Rule 6(a) of the Indian Passport Rules. The Indian Passport Act and the Rules were passed with the object, as its preamble itself shows to take power to require passports of persons entering India. The Central Government was given power to make rules requiring that persons entering India shall be in possession of passports and for all matters ancillary or incidental to that purpose. Rule 3 of the Indian Passport Rules reads as follows :

Save as provided in rule 4, no person proceeding from any place outside India Shall enter, or attempt to enter, India by water, land or air unless he is in possession of a valid passport conforming to the conditions prescribed in rule 5.

Rule 4 specifies the persons who shall be exempted from the provisions of rule 3. Rule 6 deals with punishment and it says that any person who contravenes or abets the contravention of the rule shall be punishable with imprisonment for a term which may extend to 3 moths or with fine or with both. What is made punishable is a breach of rule 3 and the rule is intended to prohibit persons from entering the Indian territory without a valid passport. The learned defence counsel had contended that the question of being in possession of a passport would arise only if the respondent is proved to be a foreigner and that if he is an Indian citizen as contended for by him there is no need for a passport and that the Central Government was the proper authority to decide whether he is an Indian citizen or not and until that adjudication is over he cannot be found guilty.

9. A reading of Section 3 of the Act and Rules 3 and 4 of the Passport Rules will show that these rules apply to every person including an Indian citizen. So it is immaterial whether the accused is a foreigner or an Indian citizen. A similar argument that the rule does not apply to an Indian citizen was raised in the case Abdul Rahim Ismail C Rahimtoula v The State of Bombay (A.I.R. 1959 S. C. 1315) and the contention was negatived. Imam J. has stated that,

Under Section 3(1) of the Act the word "persons" has been stated without any qualification. Under S. 3 (2) (a) the words employed are "any person" and in R. 3 the words employed are "no person". Clause (b) of R. 4 obviously applies to Indian citizens but those mentioned in that clause have been specifically exempted from the operation of R. 3. Clause (h) of R. 4(1) can apply to Indian citizens who are by religion Mahomedans. They have been exempted. Therefore, on a reasonable interpretation of S. 3 of the Act and Rules 3 and 4 of the Rules there can be no manner of doubt that these provisions apply to all persons including Indian citizens.

Therefore it follows that if the respondent entered India without a passport it will be in contravention of Rule 3 of the Rules and therefore punishable under Rule 6(a) of the Indian Passport Rules.

The next question is whether under the provisions of Section 237, we could find the respondent guilty under Rule 6 read with Rule 3 of the Indian Passport Rules or the case must be sent back to the lower court for re-trial in accordance with law. Under Section 237 Criminal Procedure Code a person may be convicted of an offence although there has been no charge in respect of it if the evidence is such as to establish a charge that might have been made. In such a charge there is no alteration in the substance of the accusation but only in the section more properly applicable to the facts found. But we do not think that this is a case where we should make use of the provisions of Section 237 Criminal Procedure Code to find the respondent guilty. The question whether passport was necessary irrespective of whether the respondent was a foreigner or an Indian citizen was not argued either in the court below or at the time of the hearing of this appeal. The respondent was not called upon to answer a charge that whether as a foreigner or as an Indian citizen he had no valid passport to enter India and that therefore he is guilty under Rule 6 read with Rule 3 of the Indian Passport Rules. Concentration was centred on whether the respondent was a foreigner or an Indian citizen and not whether in either case he had a valid passport. We do not know what plea the respondent would have taken if he had been charged for this offence. So the question of prejudice to the accused if re-trial is not ordered cannot be altogether ruled out. We therefore think that in the interests of justice this is a fit case where we would send back the case for re-trial. The order of acquittal is set aside and we order that the respondent be retried for an offence under Rule 6 read with Rule 3 of the Indian Passport Rules. The case should go back to another Magistrate.