Supreme Court Quashes Second Foreigners Tribunal Case | Abuse Of Process Against Person Already Declared Indian
Kiran Raj
The Supreme Court of India Division Bench of Justice Manoj Misra and Justice K.V. Viswanathan has held that initiation of fresh proceedings against the appellant, after she was previously adjudicated not to be a foreigner, was impermissible. The Court allowed the appeal, set aside the order of the Gauhati High Court dated 31st May 2023 insofar as it declined to quash the proceedings, and directed that Foreigners Tribunal Case No. 730 of 2018 pending before Foreigners Tribunal No.3, Nalbari stands quashed.
The matter originated from proceedings under the Foreigners Act, 1946 initiated against the appellant on allegations of illegal entry into Assam after 25th March 1971. These proceedings were registered as Case No. 39 of 2016 before Foreigners Tribunal No.3, Nalbari, Mukalmua.
In the 2016 case, the Tribunal gave a conclusive finding. The final order dated 31st August 2016 stated: “No witnesses have been examined for and on behalf of the Referral Authority/State. I have heard the learned Counsel for the proceedee and learned Assistant Govt. Pleader.”
The appellant had submitted that her parents were Indian citizens whose names were recorded in the 1966 and 1970 voter lists under 54 No. Cheng Legislative Assembly Constituency. She had married in 1979 and had been voting from 1985 onwards from 60 No. Barkhetri LAC. The Tribunal recorded: “Exhibit 13 as well as evidence of O.P.Ws shall prove the relationship of the proceedee with Jaharuddin as father and daughter.”
The Tribunal further stated: “Learned counsel for the proceedee further submits that parents name of the proceedee recorded in the voter lists of the year 1966 and 1970, which shows that parents of the proceedee is a citizen of India as per Section 6-A(2) of Citizenship (Amendment) Act, 1985. Accordingly, proceedee acquired her right of citizenship under the provisions of Citizenship (Amendment) Act.”
While the State raised objections regarding discrepancies in names and the absence of documents during the inquiry, the Tribunal, upon appraisal of documents and witness statements, ruled: “State has not rebutted these parts of evidence of O.P.W.1 and 3 during their cross examination. Therefore, evidence of O.P.Ws and documents exhibited by her are trustworthy.”
Accordingly, it concluded: “In view of the discussions made above, in my considered view, proceedee is able to discharge her burden of proof as envisaged under Section 9 of the Foreigners Act, 1946. Accordingly, in my opinion, proceedee namely Musstt. Tarabhanu Khatoon @ Tarabhanu Bibi is not a foreigner.”
Following this conclusive adjudication, a fresh notice dated 15th December 2018 was issued initiating FT Case No. 730 of 2018 calling upon the appellant again to show cause. The appellant challenged this action through Writ Petition (Civil) No. 1703 of 2019 before the Gauhati High Court. While the High Court noted the prior decision, it disposed of the writ petition permitting the appellant to raise all pleas before the Tribunal in the second case.
Aggrieved by this refusal to quash the fresh proceedings, the appellant preferred an appeal before the Supreme Court. Relying on Abdul Kuddus v. Union of India, (2019) 6 SCC 604, the appellant contended that once an adjudication on merits had occurred and attained finality, a fresh proceeding on the same issue was barred by principles akin to res judicata.
The respondents argued that the 2016 order was cryptic and lacked adequate analysis, and therefore was not binding.
The Supreme Court examined the submissions and the record. The Bench observed:
“Once it is not in dispute that on a previous reference the Tribunal after giving opportunity to both sides, on appraisal of evidence, found the appellant not a foreigner, the only course available for the respondent was either to challenge the order before the High Court or seek for its recall on grounds permissible for recall.”
The Court further recorded: “As no provision for review exists, at least not shown to us, so long the earlier order stands, it is not open to initiate fresh proceedings as the same would be hit by principles of res judicata as held by this Court in Abdul Kuddus (supra).”
Addressing the issue of whether the earlier decision could be ignored for being cryptic, the Court stated that the principle of finality still applied. The Bench unequivocally held:
“In our view, therefore, the subsequent proceedings were nothing but an abuse of the process of law, and therefore, the High Court ought to have interdicted the same.”
Thus, the Court concluded that the initiation of FT Case No. 730 of 2018 was legally unsustainable.
“The appeal is, therefore, allowed. The order of the High Court dated 31st May 2023 to the extent it declines to quash the impugned proceedings is set aside. The writ petition of the appellant shall stand allowed.”
Additionally, the Bench ordered: “The further proceedings in FT Case No. 730 of 2018 before Foreigners Tribunal No.3, Nalbari shall stand quashed. There shall be no order as to costs.”
The Court also directed: “Pending application(s), if any, shall stand disposed of.”
Advocates Representing the Parties
For the Petitioners: Mr. P V Surendranath, Senior Advocate; Mr. Subhash Chandran Kr, Advocate; Mr. Biju P Raman, AOR; Mr. Sawan Shukla, Advocate; Mr. John Arackal, Advocate; Ms. Krishna L R, Advocate
For the Respondents: Mr. Ankit Agarwal, AOR; Mr. Koustubh Desai, Advocate; Mr. Ashish Shukla, Advocate; Mr. Debojit Borkakati, AOR
Case Title: Tarabanu Begum @ Tarabhanu Khatun v. Union of India & Ors.
Case Number: Civil Appeal No. ___ of 2025 (arising out of SLP (C) No. 24703 of 2023)
Bench: Justice Manoj Misra and Justice K.V. Viswanathan
[Read/Download order]
