Reverse Onus U/S 16 Immigration & Foreigners Act Is Absolute: Calcutta HC Denies Relief To Bangladeshi Hindu Woman Accused of Overstaying Visa
The Court held that claims of religious persecution are matters of evidence to be established during trial and cannot be used to quash criminal proceedings.
Justice Dr. Ajoy Kumar Mukherjee, Calcutta High Court
The Calcutta High Court has clarified that while statutory exemptions exist for Hindu minorities from Bangladesh who entered India before the December 31, 2024, cut-off, the burden of proving eligibility for such protection remains an "absolute requirement" for the accused. The Court noted that Section 16 of the Immigration and Foreigners Act, 2025, places the onus of proof squarely on the individual to establish their status as an exempted person.
The Court dismissed a revisional application seeking to quash criminal proceedings against a Bangladeshi Hindu woman, charged with overstaying and illegal entry under the Immigration and Foreigners Act, 2025. Consequently, the Bench held that where a claim of religious persecution is contested by the State as a strategic afterthought to evade penal consequences, such factual determinations cannot be prematurely decided by a High Court exercising its inherent jurisdiction under Section 482 CrPC.
Dr. Justice Ajoy Kumar Mukherjee noting Section 16 of the Act of 2025, observed, “…it is clear that law dictates that ‘notwithstanding anything contained in the BSA, 2023’ makes this onus an absolute requirement for the individual. This provision is a corner-stone of the Act of 2025, designed to strengthen National Security, Streamline Immigration and enables authorities to take action, such as deportation, if the individual fails to establish their no foreign status. Therefore, the onus to provide documentation, confirming citizenship or right to stay/overstay in India lies upon the questioned person/petitioner, shifting the burden away from the state...”.
Senior Advocate Rajdeep Mazumder appeared for the petitioners and Advocate Suman De appeared for the State.
As per the facts, the petitioner, a 27-year-old Hindu woman from Khulna, Bangladesh, entered India on December 7, 2024, on a valid tourist visa that expired in January 2025. Following her entry, she married an Indian citizen and resided in Raipur.
She alleged that she faced severe matrimonial cruelty and, upon attempting to lodge a complaint against her husband in December 2025, was instead arrested by the Bongaon police. The police charged her under Section 21 of the Immigration and Foreigners Act, 2025, for loitering without valid travel documents, while her counsel argued she was a victim of religious persecution entitled to statutory protection.
Thereafter, the petitioner was arrested on December 29, 2025, and subsequently granted bail on February 28, 2026. A verification report from the Foreigner's Regional Registration Officer confirmed her entry date but noted the expiry of her visa.
The petitioner moved the High Court, seeking to quash the charge sheet filed on February 26, 2026, on the grounds that she was eligible for exemption under the 2025 Exemption Order and the CAA.
The Bench noted the State’s contention that the petitioner’s claim of religious persecution was never raised at the time of entry or during her marriage, appearing only after criminal charges were imminent.
The Court held that to establish “fear of religious persecution” under Section 3(e) of the Exemption Order, 2025, an applicant must show credible testimony, supporting documentary evidence, forced concealment of faith, legal discrimination, or loss of employment due to religious identity.
“…it is the petitioner who under the law is required to prove that she is an exempted person and entitled to get protection under order 3 (e ) of the Immigration and Foreigner (Exemption) Order, 2025, in view of the challenges made specifically by the State that the petitioner’s plea of ‘fear of religious persecution’ is an afterthought and has been cooked up when the present proceeding has been initiated against her for not having any valid visa and/or on the ground of illegal over-stay, since according to the State she has nowhere stated prior to initiation of the present criminal proceeding that though she entered into India by means of a tourist visa and thereafter got married with an Indian, she was actually forced to enter India due to ‘fear of religious persecution’”.
The Court ultimately dismissed the revisional application, though it clarified that it had not expressed an opinion on the merits of the case. The trial court was directed to decide the matter expeditiously and uninfluenced by the High Court's observations. The Court further ordered that the previous relaxation of bail conditions would continue until any further action by the lower court.
Cause Title: Sampa Sarkar v. The State of West Bengal and Anr. (CRR 1121 of 2026)
Appearances:
Petitioner: Rajdeep Mazumder, Sr. Adv., and Sayan Mukherjee, Advocate.
Respondents: Suman De and Santanu Deb Roy, Advocates.