Lebu Miah vs State Of West Bengal & Ors.

The written instructions filed in Court today be kept with the records. A copy of the report taken on record today is handed over to learned counsel for the petitioner by the State here and now.

The petitioner alleges that his wife and two children, being Indian citizens having valid passports, were travelling to Bangladesh upon obtaining visa in that regard. During transit within Indian territory, they were apprehended unlawfully and kept in a detention centre with the threat that they would be pushed back to Bangladesh on the apparent allegation that they are Bangladeshi citizens.

Learned counsel for the petitioner argues on the strength of the annexures to the present habeas corpus petition that the entire family of the petitioners, including his wife and children, are Indian citizens having valid passports, copies which are annexed hereto. That apart, there are several other documents indicating that the petitioner’s wife and children are Indian citizens.

It is contended that without registering any appropriate criminal proceeding against the petitioner and his family and without giving an opportunity of hearing, they are being sought to be deported forcibly to Bangladesh.

Learned Government Pleader, appearing on behalf of the State of West Bengal, hands over a written instruction indicating that upon being apprehended and searched, it was found that the petitioner’s wife and two children were holding several documents. However, it is revealed from the said written instruction that during profiling/interrogation, it appeared that the petitioner’s wife admitted that she had entered Indian territory through an unfenced IB border area near Kuchlibari (India)/Dahagram-Angarpota (Bangladesh) and got married with the petitioner and illegally settled in India and had fraudulently obtained Indian passport.

However, it prima facie transpires that no appropriate criminal proceeding has been initiated as yet against the petitioner’s wife and children under any provision of law. Moreover, we are not apprised of any proceeding as yet taken, assailing the passport held by the petitioner’s wife and two children.

In the prima facie opinion of the Court, the petitioner’s wife and children cannot be pushed back outside India prior to being afforded an opportunity of hearing and proving they are Indian citizens and/or initiating any proceeding under the appropriate provisions of law.

Consequently, the Court is also of the opinion that since the petitioner’s wife and children purportedly have Indian passports, without cancelling the same following due process of law, the manner in which they are sought to be deported to Bangladesh, is not valid in the eye of law.

Be that as it may, it is always open to the law enforcement agencies to initiate appropriate criminal proceedings against the petitioner’s wife and children in the event the latter have violated any provision of law, as well as to undertake proceedings in due process of law for cancelling the passports held by them, in the event those are found to be fake and/or unlawfully obtained.

In view of the above, the respondent authorities are restrained by an order of injunction from deporting the petitioner’s wife and children without initiating due process of law under the appropriate legal provisions as well as cancelling the Indian passport held by the petitioner’s wife and children in due process of law. For such purpose, the respondents would be at liberty to initiate such proceedings.

The respondents shall also produce the petitioner’s wife and two children within 24 hours from now before the jurisdictional Magistrate in accordance with law.

A further report containing particulars and details of the actions taken by the respondent authorities in the above regard shall be filed before the regular Bench taking habeas corpus matters when the same is next taken up for hearing.

The matter shall be listed before the regular Bench immediately after the reopening of court post-Annual Vacation for further hearing.