Karnataka HC grants Bail to alleged "illegal Bangladeshi" woman citing CAA, 2019

The Karnataka High Court yesterday granted bail to a Bangladeshi Christian woman accused of being an 'illegal migrant', keeping in mind the provisions of the Citizenship (Amendment) Act 2019 (CAA). The main allegation against the petitioner was that she had obtained an Indian passport by means of fraudulent documents.

While granting bail, a Single Judge Bench of Justice John Michael Cunha held that that the allegations regarding the fabrication and manipulation of IDs such as Aadhaar and PAN for the purpose of obtaining an Indian passport require to be established during trial.

Notably, the Court also opined that since there is prima facie material to show that the woman has been residing in India since 2002, she deserves to be granted bail in view of the amended Section 2 of the the Citizenship Act, 1955 through the CAA, 2019.

The petitioner submitted that she had come to India to pursue her higher studies in 2003. Later on, she told the Court that she married an Indian resident and obtained an Indian passport by providing valid and genuine documents. It is submitted that she has been residing in India since 2002.

During a journey in May 2019, the Immigration Officer at Kolkata detained the petitioner and her son at Airport, although they were later released from custody.

Following this, the Regional Passport Office issued a notice for the revocation of her passport. This led to her arrest by the local Police who produced her before the a Magistrate. She was remanded to police custody until November 11, 2019. Since then, she has remained in judicial custody, the Court was told.

The primary allegation made against the petitioner was that she is a Bangladeshi National and an illegal migrant, who had fraudulently obtained an Indian Passport on the strength of fabricated IDs such as Aadhaar and PAN.

A complaint was lodged in this regard by the Assistant Passport Officer, Bengaluru, leading to her arrest. The FIR registered against her cited Sections 465, 471, 468 of the Indian Penal Code; Sections 5, 12 and 14 of Foreigners Act, 1946 and Section 3(1)(c) of the Citizenship Act, 1955.

An application for bail before an Additional City Civil & Sessions Judge, Bangalore was dismissed on the ground that there was prima facie material to show manipulation of records by the petitioner, and that she may tamper with evidence if she is allowed bail. This led the petitioner to approach the High Court

Before the Karnataka High Court, an unreported decision of the High Court was relied on to argue that the petitioner cannot be treated as an illegal migrant in view of the CAA, 2019.

It was contended that all proceedings initiated against her would stand abated in view of the Amendment. Further, it was pointed out that if the petitioner needs to apply for citizenship as per the amended Citizenship Act, her presence for the same would be required

The petitioner also challenged the provisions quoted in the FIR as not being applicable to her. It was her case that the documents seized by the police are genuine and not fabricated.

Inter alia, it was also pointed out that the police had failed to produce the chargesheet in the matter within time and that the petitioner was entitled to jail given that she has been in judicial custody since November 7, last year. Further, it was added that even the applicability of the Foreigners Act, 1946 may have to be decided before proceeding against the petitioner

The High Court also took on record the submission of the Government Pleader that the investigation was still in progress. Further, it was noted that the Government Pleader did not deny that the petitioner would be entitled to the benefit of the amended Section 2 of Citizenship Act, 1955.

As also noted in the bail order, the definition of “illegal migrant” under Section 2 of the Citizenship Act has undergone a change after the CAA, 2019. With the 2019 amendment, Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from Afghanistan, Bangladesh and Pakistan will not be treated as illegal migrants under the Act.

In view of the above, the Karnataka High Court proceeded to grant bail to the petitioner on the execution of a bond of Rupees 2,00,000 and subject certain other conditions, i.e.

• She shall not tamper with evidence.

• She shall co-operate in the investigation and shall appear before the Investigating Officer when called.

• She shall not leave the jurisdiction of the concerned Trial Court without prior permission.

• She shall mark her attendance on the 1st and 15th of every calendar month between 10.00 a.m. and 5.00 p.m. for a period of two months.

[Read the bail order here]