Calcutta HC Denies Relief To Bangladeshi Hindu Woman Accused Of Overstaying Visa, Says Religious Persecution Plea Must Be Proved
The Calcutta High Court has refused to quash criminal proceedings against a Bangladeshi Hindu woman accused of overstaying in India without a valid visa under the Immigration and Foreigners Act, 2025, holding that whether she qualifies for statutory protection as a victim of religious persecution can only be determined at trial.Justice Ajoy Kumar Mukherjee observed that although the...
The Calcutta High Court has refused to quash criminal proceedings against a Bangladeshi Hindu woman accused of overstaying in India without a valid visa under the Immigration and Foreigners Act, 2025, holding that whether she qualifies for statutory protection as a victim of religious persecution can only be determined at trial.
Justice Ajoy Kumar Mukherjee observed that although the Immigration and Foreigners (Exemption) Order, 2025 grants protection to persecuted minorities from Bangladesh, Pakistan and Afghanistan who entered India on or before December 31, 2024, the burden lies on the accused to establish entitlement to such exemption.
The Court said: “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.”
The Court further held that the petitioner's plea of “fear of religious persecution” was disputed by the State as an afterthought and therefore required evidentiary examination during trial.
Background
The petitioner, Sampa Sarkar, a 27-year-old Hindu woman from Khulna district in Bangladesh, sought the quashing of proceedings arising out of Bongaon Police Station Case No. 1187 of 2025 registered under Section 21 of the Immigration and Foreigners Act, 2025.
According to her case, she entered India on December 7, 2024, through the Ghojadanga land border with a valid Bangladeshi passport and visa, which remained valid till January 6, 2025. She later married an Indian citizen and began residing at her matrimonial home in West Bengal.
She alleged that after marriage, she was subjected to cruelty and harassment by her husband and in-laws. When she approached the police to lodge a complaint in December 2025, the police allegedly refused to register it and instead implicated her in the present case in collusion with her husband.
The petitioner relied on Order 3(e) of the Immigration and Foreigners (Exemption) Order, 2025, issued under Section 33 of the Act, which exempts members of six minority communities from Bangladesh, Pakistan and Afghanistan who entered India on or before December 31, 2024 due to religious persecution or fear of such persecution.
Her counsel argued that an FRRO verification report confirmed that she had entered India on December 7, 2024 with a genuine visa, thereby bringing her squarely within the exemption clause. It was further contended that continuation of proceedings defeated the humanitarian object of the Citizenship (Amendment) Act, 2019.
The State opposed the plea, arguing that the petitioner had entered India on a tourist visa and never claimed religious persecution until after criminal proceedings were initiated against her.
It contended that a mere assertion of fear of persecution was insufficient and the petitioner was required to establish a well-founded fear through credible evidence. According to the State, the plea was raised only to evade penal consequences for overstaying in India after expiry of her visa.
Court's Findings
The Court noted that the prosecution had admitted through an official verification report that the petitioner entered India on December 7, 2024 with a valid visa. However, it also observed that her visa expired on January 6, 2025 and she had continued to stay in India thereafter.
While acknowledging that persecuted minorities covered under the exemption order could claim protection despite expiry of documents, the Court held that such protection was not automatic.
The Court observed that establishing “fear of religious persecution” would require evidence such as credible testimony, documentary proof, evidence of discrimination, concealment of faith, or loss of employment on religious grounds.
The court stated: “To substantiate the 'fear of religious persecution,' credible testimony and evidence may require to establish during hearing.”
The Court also emphasised the reverse burden clause contained in Section 16 of the Immigration and Foreigners Act, 2025, which places the onus on the individual to prove that they are not an illegal foreigner or that they fall within an exempted category.
Refusing to exercise inherent powers to quash the proceedings, the Court held that no case of grave miscarriage of justice or abuse of process had been made out under the principles laid down in State of Haryana v. Bhajan Lal and Som Mittal v. Government of Karnataka.
Accordingly, the criminal revision petition was dismissed, though the Court clarified that it had expressed no opinion on the merits of the case and directed the trial court to decide the matter independently and expeditiously.
Case: Sampa Sarkar Vs. The State of West Bengal and Anr.
Case No: CRR 1121 of 2026