Page No.# 1/6 GAHC010003332025 2025:GAU-AS:1456- DB THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/409/2025 ARIFUL ISLAM AND 2 ORS SON OF LT. KHAIRUL ISLAM, R/O-VILLAGE- KACHARIBORI, P.O.- DEWAGURI, DIST.- MORIGAON, ASSAM, PIN- 782127. 2: AZAHARUL ISLAM SON OF LT. KHAIRUL ISLAM R/O-VILLAGE- KACHARIBORI P.O.- DEWAGURI DIST.- MORIGAON ASSAM PIN- 782127. 3: AMINUL ISLAM SON OF LT. KHAIRUL ISLAM R/O-VILLAGE- KACHARIBORI P.O.- DEWAGURI DIST.- MORIGAON ASSAM PIN- 782127 VERSUS Page No.# 2/6 THE UNION OF INDIA AND 6 ORS REPRESENTED BY THE SECRETARY TO THE MINISTRY OF HOME AFFAIRS, GOVERNMENT OF INDIA, SHASTRI BHAWAN, NEW DELHI- 110001. 2:THE STATE OF ASSAM REPRESENTED BY THE COMMISSIONER AND SECRETARY TOT HE GOVT. OF ASSAM DEPARTMENT OF HOME DISPUR GUWAHATI-6. 3:THE SUPERINTENDENT OF POLICE(B) DISTRICT- MORIGAON ASSAM P.O.- MORIGAON HEAD OFFICE PIN- 782105. 4:THE CHIEF ELECTORAL OFFICER OF THE STATE OF ASSAM DISPUR GUWAHATI-6. 5:THE ELECTION COMMISSION OF INDIA REPRESENTED BY THE CHIEF ELECTION COMMISSIONER NIRVACHAN SADAN ASHOKA ROAD NEW DELHI INDIA PIN- 110001. 6:THE ELECTORAL REGISTRATION OFFICER OF MORIGAON P.O.- MORIGAON HEAD OFFICE PIN- 782105. 7:THE NATIONAL REGISTRAR OF CITIZEN REPRESENTED BY THE STATE CO-ORDINATOR ASHYUT PLAZA BHANGAGARH KAMRUP(M) ASSAM PIN- 781006 Page No.# 3/6 Advocate for the Petitioner : MR. M A SHEIKH, MR. W A SHEIKH,MS F INTAZ Advocate for the Respondent : DY.S.G.I., SC, ECI,SC, F.T,GA, ASSAM BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA HONOURABLE MRS. JUSTICE MALASRI NANDI ORDER 12.02.2025 (K.R. Surana, J) Heard Ms. F. Imtaz, learned counsel for the petitioners. Also heard Ms. B. Sarma, learned CGC; Ms. A. Verma, learned Standing Counsel for the F.T matters; Ms. P. Barua, learned Standing Counsel for the ECI; and Mr. G. Sarma, learned Standing counsel for the NRC. 2. The petitioners project themselves to be the sons of Late Khairul Islam, who was a resident of Kacharibori in the district of Morigaon. In an enquiry made by the Superintendent of Police (Border), Morigaon, opinion was expressed that the father of the petitioners, who was then alive, was a foreigner who had entered India (Assam) after 25.03.1971 and upon enquiry, a reference was submitted before the Foreigners’ Tribunal and F.T. Case No.1449/2012 was registered before the Foreigners’ Tribunal No. 2nd, Morigaon. It is also projected that in the meantime, in the voters list, the name of the father of the petitioners was marked with the letter ‘D’. It is further projected in this writ petition that during the pendency of the proceedings of F.T. Case No. 1449/2012, the father of the petitioners had died on 04.03.2016. The petitioners project that in the enquiry report, the Enquiry Officer had confirmed that the father of the petitioners was an Indian and accordingly, the legality of the proceedings of F.T. Page No.# 4/6 Case No. 1449/2012 is assailed in the writ petition filed under article 226 of the Constitution of India. 3. The learned counsel for the petitioners has submitted that as the Enquiry Officer has submitted a report confirming that the father of the petitioners was an Indian, the reference made by the Superintendent of Police (Border), Morigaon was illegal. 4. Heard the submissions made by the appearing learned counsel for the respondents. 5. The learned Standing Counsel for the F.T. matters has submitted that the reference was made by the competent authority, i.e. Superintendent of Police (Border), Morigaon. She has relied on the decision of this Court in the case of Bahej Ali v. Union of India & Ors., WP(C) No. 7526/2017, decided by a Co-ordinate Bench of this Court by order dated 11.12.2017 and it is submitted that the law in this regard is settled by this said judgment, wherein it has been held that the question of abetment of a reference does not arise and that if a suspect or a proceede has expired, the reference is required to be returned back to the referral authority with a note that the proceede has expired. Thereupon, the said authority will take appropriate steps in accordance with law. It has been further held that it is the prerogative of the jurisdictional Superintendent of Police (Border), to make subsequent reference against any other family member of the deceased, drawing lineage from the said deceased. 6. Having heard the appearing counsels for all sides, perused the materials available on record and also perused the order dated 11.12.2017, passed by the Division Bench of this Court in WP(C) Case No.7526/2017. 7. It would be appropriate to quote paragraph no. 15 of the order dated Page No.# 5/6 11.12.2017, passed by the Division Bench of this Court in WP(C) case No.7526/2017: “15. In so far the first issue is concerned, going by the scheme of the Foreigners Act, 1946 and the Foreigners’ (Tribunals) Order, 1964, the referral authority, i.e., Superintendent of Police (Border) seeks an opinion from the competent Foreigners’ Tribunal as to whether the suspect is a foreigner or not. Therefore, on a reference made by the referral authority, Tribunal is required to render its opinion. This Court has held on more than one occasion that a proceeding before the Tribunal is not of the nature of a civil suit or of a criminal trial. It is a summary proceeding following which opinion is to be rendered by the Tribunal on the reference made. Therefore, question of ’abatement’ of a reference may not arise. If the suspect has expired, the reference is required to be returned back to the referral authority, i.e., Superintendent of Police (Border) with the note that the proceedee has expired, who shall, thereafter, take appropriate steps in accordance with law. Since the materials on the basis of which the reference was made continues to remain on record, it would be open to the referral authority, i.e., the Superintendent of Police (Border) to make subsequent reference(s) against the other family members of the deceased proceedee drawing lineage from the same father. If a person is suspected to be a foreigner on the basis of materials on record, it would be a logical corollary to take the view that the to her family members of the proceedee drawing lineage from the same father would also be suspected foreigners whose citizenship status would have to be gone into by a Foreigners’ Tribunal. This is a decision which has to be taken by the referral authority. Therefore, it would not be just and proper on the part of the Tribunal to close a reference as having ’abated’’ on the death of a proceedee.” 8. In view of the already settled law that a reference does not abate on the death of a proceedee, but it would be returned by the concerned Tribunal, we refrain from touching upon the merit of submissions made by the learned counsel for the petitioners as the petitioners will still get an opportunity to address those issues if a reference, if any, is registered against them and therefore, if any observations are made in this order, it may cause prejudice to either side. Therefore, we refrain from touching upon merit of the submissions made by the learned counsel for the petitioners. Page No.# 6/6 9. The issue as to whether the proceedings before the Foreigners Tribunal abates on the death of the proceedee, having already been answered in the judgment of this Court dated 11.12.2017, passed in WP(C) case No.7526/2017, in the matter of Bahej Ali (supra) the learned Member, Foreigners’ Tribunal No. 2nd, Morigaon is directed to take note of paragraph no.15 of the order passed in the case of Bahej Ali (supra), which is quoted hereinbefore, and do the needful in accordance with law as laid down therein. 10. In this regard, the petitioners are directed to produce a certified copy of this order before the learned Member, Foreigner’s Tribunal, No. 2nd, Morigaon within 3 (three) weeks from the date of this order to bring the order to the notice of this said learned Tribunal. 11. It is clarified that the Court has not entered into the merit of the plea taken by the learned counsel for the petitioners. Therefore, it would be open to the petitioners to take such defence as may be permissible in the event any reference is made and registered against them. 12. Accordingly, this writ petition stands partly allowed to the extent as indicated above, and disposed of. JUDGE JUDGE Comparing Assistant