Person declared 'Indian' by FTs cannot be branded as foreigner by tribunal for second time: Gauhati HC

The petitioners’ contentions are based on the Supreme Court’s decision in the case of one Abdul Kuddus which states that subsequent proceedings before the FTs are barred by the principle of ‘res judicata’.

The Court directed that whenever a petitioner takes the plea of applicability of ‘res judicata’ on the ground that he had already been declared an Indian by the FT in an earlier proceeding, the tribunal has to first determine whether the petitioner is the same person who was proceeded in the earlier case or not.

“For that purpose, there can be examination of evidence in the form of oral documents and evidence and if the tribunal comes to the conclusion that the person was the same as in the earlier proceeding, there is no need to go into the merit of the case any further,” the judges ruled.

On the plea of applicability of ‘res judicata’, the subsequent proceeding shall be closed, without any further examination, on the basis of the earlier opinion that the person was not a foreigner, the order stated.

The order is a reiteration of a similar judgment passed by the Gauhati High Court in December 2021 where it was observed that the Supreme Court’s decision on the principle of ‘res judicata’ being applicable even in a proceeding before the FT also makes the FT’s opinion not sustainable as that issue had already been settled.

A Division Bench had ordered the release of Hasina Bhanu alias Hasna Bhanu from Tezpur Jail, as she was declared ‘Indian’ in 2016 and again a ‘foreigner’ in 2021 by the same FT, and, therefore, the proceedings against her could not sustain as it was the same person in both the cases.