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Judgment
Aniruddha Bose, J.—1. The petitioners before us are two citizens of Bangladesh who have been taken into custody on the allegation of remaining in India after lapse of their visas, and also for making forgery of certain documents. The petitioners were arrested on 20th July 2015 on the basis of a complaint instituted by one Nani Gopal Biswas, who also happens to be the brother-in-law of the petitioner No. 1. The petitioner No. 2 is the wife of the petitioner No. 1.
We are apprised by Mr. Kabir, learned counsel for the petitioners that charge-sheet has been submitted. Complaint against the petitioners relate to commission of offences under the provisions of Sections 14/14A(b)/14C of the Foreigners Act, 1946 and Sections 467/471 of the Indian Penal Code, 1860. Mr. Kabir also brought to our notice that the daughter of the petitioner is at present lodged in a juvenile home for her care and protection. Case of the petitioners is that they, along with their daughter had been staying in Nabadwip and working at the temple complex of the International Society of Krishna Consciousness (ISKCON) Mayapur, after entering into India in the month of December, 2013 with valid passports and visas. One Sanjib Kumar Biswas, who was also a Bangladeshi citizen was arranging for their stay and extension of visa in India. Said Sanjib Kumar Biswas is the son of Nani Gopal Biswas, on whose complaint the F.I.R. was registered against the petitioners. It has also been pointed out by Mr. Kabir that Said Sanjib Kumar Biswas has subsequently become a citizen of the United States of America. Grievance of the petitioners is that on the pretext of helping them, said Sanjib Kumar Biswas had committed rape on their daughter. Thereafter, complaint was lodged against Sanjib Kumar Biswas in Nabadwip police station on 27th October, 2014 by the aforesaid juvenile victim. Nabadwip Police Station Case No. 606/14 dated 27th October, 2014 has been initiated against said Sanjib Kumar Biswas. So far as the complaint against the petitioners is concerned, this was lodged on 3rd July, 2015.
Mr. Kabir has pressed the plea for bail of the petitioners mainly on the basis of a Notification and an Order of Central Government, both dated 7th September, 2015. These instruments stipulate:--
"(i) G.S.R. 865 (E), - In exercise of the powers conferred by section 3 of the Passport (Entry into India) Act, 1920(34 of 1920), the Central Government hereby makes the following rules further to amend the Passport (Entry into India) Rules, 1950, namely:--
(1) These rules may be called the Passport (Entry into India) Amendment Rules, 2015.
(2) They shall come into force on the date of their publication in the Official Gazette.
In the Passport (Entry into India) Rules, 1950, in rule 4, in sub-rule (1), after clause (h), the following clause shall be inserted, namely:--
"(ha) persons belonging to minority communities in Bangladesh and Pakistan, namely, Hindus, Sikhs, Buddhists, Jains, Parsis and Christians who were compelled to seek shelter in India due to religious persecution or fear of religious persecution and entered into India on or before the 31st December, 2014-
(i) without valid documents including passport or other travel documents: or
(ii) with valid documents including passport or other travel document and the validity of any of such documents has expired:
Provided that provision of this clause shall take effect from the date of publication of this notification in the Official Gazette".
(iii) "G.S.R. 686(E).- In exercise of the powers conferred by section 3 of the Foreigners Act, 1946(31 of 1946), the Central Government hereby makes the following order further to amend the Foreigners Order, 1948, namely:--
(1) This Order may be called the Foreigners(Amendment) Order, 2015
(2) It shall come into force on the date of its publication in the Official Gazette.
In the Foreigners Order, 1948, after paragraph 3, the following paragraph shall be inserted, namely:--
"3A. Exemption of certain class of foreigners._ (1) Persons belonging to minority communities in Bangladesh and Pakistan, namely, Hindus, Sikhs, Buddhists, Jains, Parsis and Christians who were compelled to seek shelter in India due to religious persecution or fear of religious persecution and entered into India on or before the 31st December, 2014-
(a) without valid documents including passport or other travel documents and who have been exempted under rule 4 from the provisions of rule 3 of the Passport (Entry into India) Rules, 1950, made under Section 3 of the Passport (Entry into India) Act, 1920(34 of 1920); or
(b) with valid documents including passport or other travel document and the validity of any of such documents has expired.
are hereby granted exemption from the application of provisions of the Foreigners Act, 1946 and the orders made thereunder in respect of their stay in India without such documents or after the expiry of those documents, as the case may be, from the date of publication of this order in the Official Gazette".
It is submitted on behalf of the petitioners that so far as allegation of overstaying is concerned, after expiry of their visas, the petitioners are entitled to protective cover of these two notifications, as both belong to minority community in Bangladesh, being Hindus, and they are apprehending persecution on religious grounds in Bangladesh. It is submitted that they had entered into India with valid documents, and they are in need of shelter in India. This has been pleaded in Paragraph 2 of the petition, which reads:--
"Your petitioners state that they are aged 55 and 48 years respectively and are permanently resident at the address as stated in the cause title hereinabove with their two daughters. The petitioners and their daughters are permanent residents of Bangladesh, holding valid passports (passport No. AA0878316 valid till 27.06.2016 of petitioner No. 1, passport No. AG7082674 valid till 01.09.2018 of petitioner No. 2, and passport No. AD1250650 valid till 2016 of the daughter of the petitioners), and had entered India in December 2013 on tourist visas, to visit the International Society of Krishna Consciousness (hereinafter ''Iskcon'') religious institution at Mayapur for the purpose of trying to obtain asylum based on their religion and to escape religious persecution in their own country. After their arrival in India, they and their daughters were residing in India at the address as mentioned in the cause title hereinabove, and were under the care and protection of one Hare Krishna Das, being their mentor and guide at Iskcon, Mayapur. This in fact, is all admitted in the prosecution case itself, as would be clear from the First Information Report."
This application has been heard on several occasions and prayer for bail has been resisted by Mr. Singh, learned Public Prosecutor. He submitted that the petitioners cannot claim the protective coverage of the said two instruments as they have not established a clear case for being compelled to seek shelter in India due to religious persecution or fear of religious persecution. It was emphasized by Mr. Singh that as per their own case, the petitioners had entered into India on tourist visa and made no complaint of religious persecution at the time of their entry. Further submission of Mr. Singh is that there is allegations of forgery of documents, and the petitioners being foreign nationals cannot be allowed to roam freely, before conclusion of the trial.
In this case, we had directed service of notice upon the Central Government as interpretation of the aforesaid two notifications and the question of their applicability in respect of the petitioners is necessary. In response to such notice, Mr. Ranjan Roy, learned counsel appeared on behalf of the Union of India and submitted, as regards interpretations of the said instrument:--
"(i) By the notification No. G.S.R. 685(E) dated 7th December, 2015 issued in exercise of the powers conferred by section 3 of the Passport (Entry into India) Act, 1920, the entry into India of the persons covered by the conditions laid down in the notification without valid travel documents or with valid documents and the validity or any of such documents has expired, stand regularized with effect from 8.9.2015(the date of publication of the notification in the Official Gazette).
(ii) By the Order No. G.S.R. 686(E) dated 7th September, 2015, issued in exercise of the powers conferred by section of the Foreigners Act, 1946, stay in India of the persons covered by the conditions laid down in the Order who entered into India without valid travel documents or with valid documents but the validity of such documents having expired, stands regularized with effect from 8th September 2015, being the date of publication of the Order in the Official Gazette.
(iii) The conditions to be fulfilled under these two notifications or Orders are:--
(a) The person should belong to minority communities in Bangladesh and Pakistan, namely Hindus, Sikhs, Buddhists, Jains, Parsis and Christians.
(b) The person should have been compelled to seek shelter in India due to religious persecution or fear of religious persecution.
(c) The person should have entered into India on or before the 31st December, 2014.
(iv) The provisions in the notification and the Order Mentioned above are to apply automatically.
(v) The notification and Order dated 7.9.2015 protects such Bangladeshi and Pakistani nationals fulfilling the conditions mentioned in those two instruments from prosecution under the Passport (Entry into India) Act, 1920 either without valid travel documents or with valid travel documents, the validity of which expire, and also from deportation proceedings.
(vi) Such persons covered by the conditions laid down in the notification and Order are expected to apply for Long Term Visa (LTV)."
We find that so far as charges against the petitioners under Foreigners Act, 1946 is concerned, the aforesaid Notification and the Order protect them from prosecution under the 1946 Act. We have taken into consideration submission of Mr. Singh that the petitioners had not raised any complaint of facing religious persecution in their home country while they entered into India, and had not reported their fear or apprehension before any statutory authority in India. But on behalf of the State or Union of India, no specified authority has been referred to, before whom such complaint could be made. The said two instruments dated 7th September 2015 do not specify or designate any authority before whom the possibility of facing religious persecution has to be factually established in order to get shelter in this country. On the other hand, submission of Mr. Roy is that the substantive provisions of those two instruments apply automatically. In this case, both the petitioners have raised the plea of facing religious persecution in Bangladesh in the petition, and in our view, for the purpose of applying the provisions of the said Notification and Order in their case while considering their prayer for bail, we ought to take cognizance of the statements made in paragraph 2 of the petition, which has been reproduced earlier in this Order. It is not in dispute that both the petitioners belong to minority community in Bangladesh. Both of them had entered into India before the specified date, being 31st December, 2014. No screening procedure was brought to our notice by the learned counsel appearing for the Union or the State, through which the genuinity of apprehension of persecution on religious grounds in the home country of the asylum seeker could be verified. The statement of the asylum seeker would have to be prima facie accepted on this count.
So far as allegation under Sections 467/471 of the Indian Penal Code is concerned, Mr. Kabir pointed out that the offence under Section 471 of the Indian Penal Code is bailable. As regards the allegation against the petitioner in relation to offence under Section 467 of the Code, the prosecution cases is that the petitioners had procured or manufactured fake birth certificate and ration card. Mr. Kabir urged before us that the charge under Section 467 would not be maintainable as there is no allegation of any forgery of any valuable security, but that question we are not considering at this stage. We are concerned at this stage with the question as to whether the petitioners ought to remain in detention or not on the allegation of having committed offence under the aforesaid provision.
In our opinion, detention of the petitioners under the Foreigners Act cannot continue having regard to the aforesaid Notification and Order. In our opinion, the petitioners are entitled to the protection contemplated in the said Notification and the Order. On the charge under Section 467 of the Indian Penal Code, having considered the period of detention already undergone by the petitioners, in our opinion it would not be necessary to keep them detained pending disposal of the case, provided they comply with the conditions which we stipulate in this order. On the aspect of the petitioners applying for long-term visa, we are not expressing any opinion in this order. It would be for the petitioners to take such step as they may be advised in that respect.
We accordingly direct that the petitioners be released on bail furnishing bonds of Rs. 30,000/- (Thirty Thousand only) each with two sureties of Rs. 15,000/- (Fifteen Thousand only) each, one of whom shall be local, to the satisfaction of the learned Judicial Magistrate, Nabadwip.
At the time of furnishing the bail bonds, the petitioners shall specify their place of stay in India, which shall be within the Sadar Sub-Division in the District of Nadia, West Bengal. The petitioners, during the period they remain on bail, shall not leave the territorial area of Sadar Sub-Division in the district of Nadia, West Bengal without leave of the concerned Court.
The instant application is allowed in the above terms.
Urgent Photostat certified copy of this order be given to the parties expeditiously, if applied for.
Sankar Acharyya, J.—I agree.