Institute of Legal and Management Studies

In a significant order, the Bombay High Court while denying bail to an alleged Bangladeshi national, held that merely having documents such as Aadhar Card, PAN Card or a Voter ID Card, does not make someone a citizen of India and in fact the concerned person must place on record the verification of these documents.

A Single-judge denied bail to the Petitioner, who was booked by the Thane Police, last year, on the ground that he was a Bangladeshi national and that he misled the Indian authorities and obtained Aadhar Card, PAN Card and also a Voter ID Card, income tax records, gas and electricity connections, fraudulently.

The judge while referring to the circumstances in which India 'historically' transformed before adopting the Constitution of India, explained how initially a 'temporary' arrangement was made for identifying citizens of India amid those who migrated from neighbouring Pakistan.

However, the judge held that the Citizenship Act, which was brought into force by the Parliament in 1955 is the main and the controlling law for deciding the nationality of Indians even today.

The judge said that the law also draws a clear line between lawful citizens and illegal migrants.

"Persons falling into the category of illegal migrants are barred from obtaining citizenship through most of the legal routes mentioned in the Act. This distinction is important, because it protects the sovereignty of the country and ensures that benefits and rights meant for citizens are not wrongfully taken by those who have no legal status to stay in India," the judge observed.

In his 12-page judgment, the judge explained that whenever there is an allegation that a person's identity is forged or that the person is of foreign origin, the Court cannot decide the matter based only on the possession of certain identity cards and that the claim of citizenship must be examined strictly under the rules of the Citizenship Act, 1955, including whether the person meets the conditions under Sections 3 to 6, or any special provisions applicable to their case.

"Furthermore, under Section 9 of the Foreigners Act, 1946, if the Government places credible evidence before the Court raising a reasonable suspicion that the person is not an Indian citizen, the burden of proof shifts to that person. This means it becomes their legal duty to produce satisfactory and lawful evidence to prove that they are indeed a citizen of India. Unless this burden is discharged, the presumption under the law will work against them," the judge said.

The judge noted that the prosecution heavily relied on 'digital evidence' adduced from the accused's WhatsApp chats, particularly, two birth certificates - one of his own and the other of his mother - both showing the two as Bangladeshi nationals. The judge further noted that there have been several cross-border communications.

The court, therefore, refused to accept the explanation of the accused that an unknown person sent him these 'unverified' documents.

"The real source of these documents (birth certificates), whether they are genuine or fake, and whether they actually relate to the applicant, can only be found out after proper verification by the concerned authorities. In cases involving false identity and claims of citizenship, the process of verification is often detailed and takes time, as it may require the involvement of agencies like UIDAI, passport authorities, and sometimes even foreign government departments. This case also needs such careful verification, which is still going on," the judge underscored.

The Court made it clear that at this stage, it is not deciding whether the documents are true or false and said that the same will be decided at the trial.

"But the fact that such documents have been found on the applicant's own phone is important and cannot be ignored. If they turn out to be genuine, they could directly affect the question of whether the applicant is an Indian citizen or a foreign national staying in India without permission. At this stage, the Court cannot ignore the fact that official confirmation regarding the genuineness of the Aadhaar card and other documents is still awaited from UIDAI and other authorities," the judge said, while noting that the probe in the instant case is still going on.

The allegations in this case are not small as it is not just about staying in India without permission or overstaying a visa but it is about making and using fake and forged identity documents like Aadhaar Card, PAN Card, and Voter ID, with the aim of pretending to be an Indian citizen, the judge underlined.

"The fact that he was allegedly able to get official documents through fraud shows that he has the ability to misuse the system and create a false identity again if given the chance. In these circumstances, if the applicant is given bail now, there is a real risk that he may hide, get another false identity using forged documents, or leave the area under the Court's control altogether. There is also a real chance that he may destroy evidence or put pressure on witnesses, especially since the verification of the documents in question is still not complete. This Court believes that the fear expressed by the prosecution is not an empty or imaginary fear. It is supported by the applicant's alleged past actions and the serious nature of the accusations. The danger of the applicant running away from the law or interfering with the investigation is real, and for this reason also, this is not a case where bail should be granted at this stage," the judge opined.

Appearance:

Advocate Jyotiram Yadav appeared for the Applicant.

Additional Public Prosecutor Megha Bajoria represented the State.