Page No.# 1/7 GAHC010109752026 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/3099/2026 AMINA KHATUN D/O ABDUL ALI, W/O ABDUL KARIM, VILLAGE BENGAN-ATI, MOUZA NIZ SAHAR, P.O. AND P.S. NAGAON, ASSAM VERSUS THE UNION OF INDIA AND 8 ORS REPRESENTED BY THE SECRETARY, HOME DEPARTMENT, NEW DELHI, INDIA 2:THE STATE OF ASSAM REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM HOME DEPARTMENT DISPUR GUWAHATI-6. 3:THE CHIEF ELECTION COMMISSIONER OF INDIA NIRVACHAN BHAVAN NEW DELHI 4:THE STATE ELECTION COMMISSIONER OF ASSAM DISPUR GUWAHATI-6. 5:THE STATE COORDINATOR NATIONAL REGISTRAR OF CITIZENS (NRC) ASSAM GUWAHATI. 6:THE FOREIGNERS REGIONAL REGISTRATION AUTHORITY (FRRA) NAGAON Page No.# 2/7 ASSAM. 7:THE DEPUTY COMMISSIONER CUM RETURNING OFFICER DISTRICT- NAGAON ASSAM. 8:THE SUPERINTENDENT OF POLICE NAGAON ASSAM. 9:THE SUPERINTENDENT OF POLICE (B) DISTRICT- CACHAR ASSAM Advocate for the Petitioner : MR. A M BARBHUIYA, MS S R MAZARBHUIYA,S. M. ZINNA Advocate for the Respondent : DY.S.G.I., SC, ECI,GA, ASSAM,SC, NRC,SC, F.T BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA HONOURABLE MRS. JUSTICE SHAMIMA JAHAN ORDER Date : 15.06.2026 ( Kalyan Rai Surana, J) Heard Mr. A. M. Barbhuiya, the learned counsel for the petitioner. Also heard Mr. J. Payeng, the learned Standing Counsel for the NRC. 2. By filing the present writ petition under Article 226 of the Constitution of India, the petitioner has prayed for calling for the records of F.T. Case No. 2496/2011 from the learned Member, Foreigners' Tribunal No. 1, Nagaon, and for directing the State respondents to conduct a proper enquiry and investigation into the citizenship status of the petitioner and her family members in accordance with law. 3. In brief, the case of the petitioner is that, upon receipt of a notice in connection with F.T. Case No. 2496/2011, she submitted a written statement Page No.# 3/7 contending that she is an Indian citizen. She further contended that she and her family members are Indian citizens and that the reference made against her, which her citizenship status under doubt, is erroneous and without any basis in law. 4. The learned counsel for the petitioner has submitted that there was no proper enquiry and investigation as regards the citizenship status. It is submitted that the proceeding was initiated against one lady, whose name is Amina Khatun, daughter of Ozid Ali and that there are many Amina Khatun in the same village, but the petitioner was never subjected to any inquiry or investigation by the concerned police to verify her citizenship status. It is submitted that the petitioner was never asked to produce any documents and therefore, no enquiry whatsoever has been conducted. Accordingly, the learned counsel for the petitioner, placing reliance upon paragraphs 96 to 98 of the judgment in the case of “The State of Assam vs. Moslem Mondal & Others”; reported in 2013 (1) GLT 80; has submitted that a fair investigation and a proper trial are important facets of Article 21 of the Constitution of India and are required to be followed to in proceedings before the Foreigners' Tribunals. Accordingly, it is therefore submitted that the present proceedings initiated against the petitioner be stayed until the police conduct a further and proper investigation into the matter. 5. Per contra, the learned Standing Counsel for the FT and Border Tribunal matters has submitted that the burden of proof lies upon the petitioner. Therefore, in her defence, the petitioner can raise any plea with regard to the issues raised in the present writ petition, including the plea that she is not the intended proceedee. 6. It would be relevant to quote herein below, paragraphs no. 96 to 98 of the Page No.# 4/7 Case of Moslem Mondal (supra) cited by the learned counsel for the petitioner. “96. One of the contentions of the proceedees is that though the referral authority is required to make the reference to the Tribunal after making a fair investigation, no such proper and fair investigation is conducted and the police at their own whims and caprice gives a report, in some cases even without visiting the place where such proceedee resides and also without giving any opportunity to produce the relevant documents to substantiate that the proceedee is not a foreigner, and such report is accepted by the referral authority and accordingly the reference is made to the Tribunal, on the basis of which the reference is registered against such person. 97. Fair investigation and fair trial being the basic fundamental/human right of a person, which are concomitant to preservation of the fundamental right of a person under article 21 of the Constitution, there has to be a fair and proper investigation by the investigating agency before making a reference to the Tribunal. In such investigation the attempt has to be made to find out the person against whom the investigation is made, so that the person concerned is given the opportunity to demonstrate at that stage itself that he is not a foreigner. In case the person concerned could not be found out in the village where he is reported to reside or in the place where he ordinarily resides or works for gain, the investigating agency has to record the same in presence of the village elder or the village headman or any respectable person of the locality, which in turn would ensure visit of the investigating officer to the place where such person ordinarily resides or reported to reside or works for gain and making of an effort to find him out for the purpose of giving him the opportunity to produce the documents etc., if any, to demonstrate that he is not a foreigner. The investigating officer, as far as practicable, shall also obtain the signature or thumb impression of the person against whom such investigation is initiated, after recording his statement, if any, provided he makes himself available for that purpose. There are also instances where the person against whom such investigation is initiated, changes his place of residence, may be in search of Page No.# 5/7 livelihood or may be to avoid detection. To ensure proper investigation and also having regard to integrity and sovereignty of the nation, once investigation relating to the nationality status of a person starts he must inform the investigating agency in writing about the change of residence, if any, thereafter. In case such person has failed to intimate the investigating agency in writing the subsequent change of his place of residence, the investigating agency has to mention the same in his report with his opinion relating to the status of such person on the basis of materials collected at the place where he earlier resided. That will ensure a fair investigation and submission of a proper report on such investigation to the authority. Needless to say, such investigation need not be a detailed or an exhaustive one keeping in view the nature of the proceeding before the Tribunal and the object sought to be achieved. Hence it need not be equaled with an investigation conducted in criminal cases. 98. The reference by the referral authority also cannot be mechanical. The referral authority has to apply his mind on the materials collected by the investigating officer during investigation and make the reference on being satisfied that there are grounds for making such reference. The referral authority, however, need not pass a detailed order recording his satisfaction. An order agreeing with the investigation would suffice. The referral authority also, while making the reference, shall produce all the materials-collected during investigation before the Tribunal, as the Tribunal is required prima facie to satisfy itself about the existence of the main grounds before issuing the notice to the proceedee.” 7. From the aforesaid observations made by this court in Moslem Mondal (supra), it is not the law that merely because the petitioner takes a plea that the investigation was not properly conducted, the Foreigners' Tribunal would be divested of its jurisdiction to adjudicate upon the reference. 8. The learned Tribunal is mandated, in terms of the observations made in paragraph 98 of Moslem Mondal (supra), to satisfy itself that the reference received from the Referral Authority is not mechanical in nature. For that Page No.# 6/7 purpose, the learned Tribunal is empowered to examine the materials collected and produced during the course of an investigation. 9. Accordingly, the learned Tribunal is required to prima facie satisfy itself as to the existence of grounds for proceeding against the proceedee before issuing notice. However, such power by itself does not confer upon the Foreigners' Tribunal the authority to reject or dismiss the reference at the threshold without adjudication on merit. 10. As per the mandate of the Foreigners’ Act, read with Order 3 of the Foreigners’ Tribunals Order 1964, the Foreigners’ Tribunals are required to answer the reference made before it. Therefore, in the event the Tribunal is of the view that there is no grounds to support the allegations about the proceedings, it can return the reference against the State. 11. This Court, in the case of “Rukia Begum Barbhuiyan @ Rukia Begum vs. Union of India”; reported in (2023) 4 GLT 208, has observed that the requirement of Rule 2(1) of the Foreigners' Tribunals Order, 1964, makes it discernible that the Central Government may, by order, refer to a Tribunal constituted for the purpose the question as to whether a person is or is not a foreigner within the meaning of the Foreigners Act, 1946. 12. Accordingly, it was held that, ongoing by the statutory provisions of Clause 2(1) of the Foreigners' Tribunals Order, 1964, any reference made to a Tribunal has to be understood as a reference on the question as to whether the person concerned is a foreigner or not within the meaning of the Foreigners Act, 1946. It was further observed that a "foreigner" is defined under the Foreigners Act, 1946, as a person who is not a citizen of India, and the question of citizenship is to be determined in accordance with the provisions of the Citizenship Act, 1955. Page No.# 7/7 13. Therefore, this Court is of the considered opinion that since the petitioner has already filed her written statement, in the event the plea raised in the present writ petition have not been taken as part of her defence before the Foreigners' Tribunal, it would be permissible for the petitioner to file an additional written statement and raise all such plea, if so advised. Upon such steps being taken, the learned Foreigners' Tribunal shall consider the same and, after examining the evidence and materials brought on record, pass a reasoned order in accordance with law. 14. Accordingly, as the learned Foreigners' Tribunal is not vested with any power or authority to reject a reference at the threshold, this Court, in exercise of its jurisdiction under Article 226 of the Constitution of India, would also refrain from examining the merits of the petitioner's grievance at this stage, when the issues raised have yet to be adjudicated upon by the learned Foreigners' Tribunal. Any such exercise by this Court would amount to assuming original jurisdiction over matters which are required to be decided by the learned Tribunal in the first instance. 15. Accordingly, this writ petition stands closed and disposed of with the observations made hereinabove. 16. The parties shall bear their own costs. JUDGE JUDGE Comparing Assistant