The Calcutta High Court has clarified that a claim of religious persecution under the Immigration and Foreigners Act, 2025 cannot be accepted at the quashment stage without credible substantiation. While the law provides statutory exemptions for persecuted minorities, the burden lies on the accused to establish the genuineness of such claim before trial.
Background & Facts
The Dispute
The petitioner, Sampa Sarkar, a 27-year-old Hindu woman from Khulna District, Bangladesh, was charged under Section 21 of the Immigration and Foreigners Act, 2025 for allegedly entering and remaining in India without a valid visa. She sought quashing of the criminal proceeding on the ground that she qualifies for exemption under Order 3(e) of the Immigration and Foreigners (Exemption) Order, 2025, as a victim of religious persecution.
Key Facts
- The petitioner entered India on 07.12.2024 through the Ghozadanga Land Border with a valid Bangladesh passport (No. A 01870282) and a tourist visa (No. VL6686067), issued on 07.07.2024 and valid until 06.01.2025.
- She married Bibek Mondal, an Indian citizen, in December 2024, according to Hindu rites, and resided with him in Raipur.
- She alleged sustained mental and physical cruelty from her husband and in-laws, prompting her to approach Bongaon Police on or around December 2025 to file a complaint.
- Instead of registering her complaint, police allegedly conspired with her husband to implicate her in a false case under Section 21 of the Act of 2025.
- The FIR was lodged on 29.12.2025, alleging she was found loitering without valid travel documents.
- The FRRO verification report dated 16.02.2026 confirmed her entry on 07.12.2024 and the authenticity of her visa.
- The petitioner claimed religious persecution in Bangladesh as the reason for her stay beyond visa validity, but made no such assertion prior to the initiation of criminal proceedings.
Procedural History
- 07.12.2024: Petitioner enters India with valid passport and visa.
- 06.01.2025: Visa expires; petitioner remains in India.
- December 2025: Petitioner attempts to file complaint against husband and in-laws at Bongaon P.S.; complaint not registered.
- 29.12.2025: FIR No. 1187 of 2025 registered under Section 21 of the Act of 2025.
- 22.01.2026: ACJM Bongaon directs police to verify petitioner’s visa and entry details.
- 16.02.2026: FRRO submits report confirming entry on 07.12.2024 and validity of visa.
- 26.02.2026: Charge sheet filed against petitioner.
- 28.02.2026: Petitioner granted bail.
- 07.04.2026: Hearing before Calcutta High Court on Criminal Revisional Jurisdiction.
- 06.05.2026: Judgment delivered.
The Parties' Positions
For the Petitioner: Argued that she qualifies for exemption under Order 3(e) of the Exemption Order 2025 as a Hindu woman from Bangladesh who entered India on or before 31.12.2024 and was compelled to flee due to religious persecution. Cited the Citizenship (Amendment) Act, 2019 as aligned humanitarian policy. Asserted that the charge sheet was filed maliciously to silence her domestic violence complaint.
For the State: Contended that the petitioner’s claim of religious persecution was raised only after the initiation of criminal proceedings and lacked any prior documentation or assertion. Argued that her visa was issued for tourism, and her marriage and subsequent stay do not automatically establish fear of persecution. Stated that the burden of proof lies on the petitioner under Section 16 of the Act of 2025.
Relief Sought
The petitioner sought quashing of the criminal proceeding under Section 482 CrPC, arguing that the charge sheet was mala fide and legally unsustainable in light of the statutory exemption and exculpatory evidence on record.
The Legal Issue
Can a criminal proceeding under Section 21 of the Immigration and Foreigners Act, 2025 be quashed at the pre-trial stage when the accused claims exemption under Order 3(e) of the Exemption Order 2025 based on religious persecution, but has not produced credible evidence of such persecution prior to the filing of the FIR?
Arguments Presented
For the Petitioner
The petitioner’s counsel, Mr. Rajdeep Mazumder, argued that the Exemption Order 2025, issued under Section 33 of the Act, provides an absolute statutory shield to persecuted minorities from Bangladesh, including Hindus, who entered India on or before 31.12.2024. He emphasized that the FRRO report confirmed lawful entry and valid documentation at the time of entry, and that the petitioner’s continued stay after visa expiry falls squarely within the exemption. He further contended that the prosecution was initiated in bad faith to suppress her domestic violence complaint and that the charge sheet ignored binding evidence. He cited Section 6(B)(3) of the Citizenship (Amendment) Act, 2019 to argue that criminal proceedings related to illegal migration must abate upon eligibility for citizenship.
For the Respondent
The State, represented by Mr. Suman De and Mr. Santanu Deb Roy, countered that the petitioner’s claim of religious persecution was raised for the first time in the revision petition and was not asserted during her initial interactions with authorities or in any prior application. The State argued that the exemption under Order 3(e) requires more than a vague assertion - it demands credible testimony, documentary proof of persecution, and evidence of a well-founded fear of future harm. The State emphasized that the petitioner’s visa was issued for tourism, her marriage was subsequent to entry, and her claim emerged only after police refused to register her domestic violence complaint. The State maintained that the burden under Section 16 of the Act lies squarely on the petitioner to prove her exempt status, and that such determination requires a full trial.
The Court's Analysis
The Court undertook a detailed examination of the statutory framework under the Immigration and Foreigners Act, 2025, particularly Sections 3, 21, 33, and 16. It acknowledged that Order 3(e) of the Exemption Order 2025 provides a clear exemption for persecuted minorities from Bangladesh who entered India on or before 31.12.2024, whether with or without valid documents. However, the Court emphasized that the exemption is not self-executing; it requires the individual to establish the factual basis for the claim.
"The onus of proving that such person is not a foreigner or is not a foreigner of such particular class or description... shall lie upon such person." - Section 16, Immigration and Foreigners Act, 2025
The Court noted that while the petitioner’s entry was lawful and documented, her assertion of religious persecution was not made at the time of entry, during her marriage, or in any prior communication with authorities. It was only after the FIR was filed that she invoked this ground. The Court held that such a belated claim, unsupported by affidavits, police reports, medical records, or any corroboration of persecution, cannot be accepted as conclusive at the quashment stage.
The Court referred to Som Mittal v. Government of Karnataka and State of Haryana v. Bhajanlal to underscore that Section 482 CrPC is an extraordinary power to be invoked only in rare cases where the proceeding is manifestly illegal or an abuse of process. It found no such abuse here, as the prosecution was initiated based on a prima facie violation of Section 21, and the exemption claim, while plausible, remained unverified.
The Court further observed that the legislative intent behind Section 16 was to place the burden of proof on the individual to establish lawful status, a provision designed to strengthen immigration control. The Court declined to substitute its judgment for that of the trial court, noting that the merits of the religious persecution claim - its credibility, timing, and corroboration - must be tested through evidence and cross-examination.
The Verdict
The petition was dismissed. The Calcutta High Court held that the criminal proceeding under Section 21 of the Immigration and Foreigners Act, 2025 shall continue before the trial court. The Court made no determination on the merits of the religious persecution claim and directed the trial court to decide the matter expeditiously. The bail order dated 28.02.2026 shall remain in force until the trial court considers its cancellation.
What This Means For Similar Cases
Exemption Claims Require Early and Credible Substantiation
- Practitioners must advise clients claiming exemption under immigration laws to document and assert religious persecution claims at the earliest opportunity, preferably at entry or upon first interaction with authorities.
- Vague or belated assertions made only during litigation will not suffice to invoke statutory exemptions at the quashment stage.
Burden of Proof Under Section 16 Is Absolute and Non-Negotiable
- In all cases under the Immigration and Foreigners Act, 2025, the accused bears the burden of proving exempt status, regardless of the strength of the prosecution’s case.
- Legal teams must prepare comprehensive evidence packages - including affidavits, country condition reports, medical records, and witness statements - before filing any quashment petition.
Quashing Under Section 482 CrPC Is Not a Substitute for Trial
- Courts will not quash proceedings merely because an exemption may apply; the factual foundation for the exemption must be established through trial.
- Lawyers should avoid relying on Section 482 as a shortcut in immigration-related criminal cases and instead focus on securing bail and preparing for trial.
