Foreign national can’t claim that he has right to reside & settle in India: Delhi HC dismisses Habeas Corpus plea where Bangladeshi national was allegedly found travelling on basis of fraudulently procured Indian passport
Justices Suresh Kumar Kait & Manoj Jain [09-01-2024]

Read Order: KINADHAN CHAKMA v. UNION OF INDIA & ORS(In W.P.(CRL) 1950/2023-DEL HC)

Tulip Kanth

New Delhi, January 17, 2023: In a case where a Bangladeshi citizen was allegedly found travelling on the basis of an Indian passport which he had fraudulently procured, the Delhi High Court has dismissed the petition of Habeas Corpus with the finding that his liberty hadn’t been curtailed in an illegal manner.

The Division Bench of Justice Suresh Kumar Kait and Justice Manoj Jain was considering a writ petition filed under Article 226 of the Constitution of India read with Section 482 Code of Criminal Procedure, 1973 with a prayer to issue appropriate order for producing Shri Azal Chakma by invoking the Writ of Habeas Corpus.

The admitted facts as put forth by the petitioner was Azal Chakma was born in and brought up in India by his mother, who had earlier solemnized marriage in India with Uttam Kumar who had come to India from Bangladesh in 1986. According to petitioner, Azal Chakma had acquired Indian citizenship by birth and he had his initial education also in Gomati, Tripura and later on in Shilong, Meghalaya. It was averred that he lived in India all his life except for a very brief period and he is holding Indian Passport, AADHAR Card, PAN Card, driving licence issued by Indian authorities and has been running business at Kolkata.

The Bench noticed that Azal Chakma had been detained as he was allegedly found travelling on the basis of Indian Passport which he had, as alleged, fraudulently procured. “As noted, such passport has already been revoked. Documents collected by the respondents clearly indicate that he was holding Bangladeshi Passport and had come to India multiple times on the basis of such passport. When he had applied for visa, he claimed himself to be a Bangladeshi national by birth and also claimed that his parents were also Bangladeshi citizens”, the Bench further noted.

The Petitioner had also not given any response to the aforesaid documents and the passport issued to him by the Bangladeshi authorities. He had also failed to apprise as to how and when he entered India after he had gone to Dhaka on the basis of Bangladeshi passport.

Referring to the Citizenship Act, 1955 as well as the Foreigners Order, 1948, the High Court stated that there was nothing on record which indicated that detention was illegal or without any authority. The Bench also took into consideration the decision of the Magistrate dismissing application under Section 97 Cr.P.C. and observing that alleged confinement of Azal Chakma did not amount to any offence .

“We have already noted above that passport issued to him by Indian authorities has already been revoked as he was suspected Bangladeshi national who had obtained Indian Passport in a fraudulent manner”, the Bench said while adding, “We may also note that foreign national cannot claim that he has right to reside and settle in India in terms of Article 19 (1) (e) of Constitution of India.”

The Bench also referred to Hans Muller of Nurenburg Vs. Superintendent, Presidency Jail, Calcutta [LQ/SC/1955/15] wherein it has been observed that the power of the Government of India to expel foreigners is absolute and unlimited and there is no provision in the Constitution fettering such discretion. Fundamental Right of any such foreigner or suspected foreigner is limited to the one declared under Article 21 of Constitution of India i.e. Fundamental Right for life and liberty and there was nothing which would suggest that his liberty had been curtailed in an illegal or unlawful manner.

It was also highlighted by the Bench that this was not a case of preventive detention as his movements had been restricted in accordance with law so that he could be deported back.

On the contention that the petitioner couldn’t be deported unless his Indian Citizenship was terminated, the Bench stated, “…we hold that even such contention is without any substance. As per his own admission made before the Bangladeshi authorities when he had applied for visa for India way back in the year 2010 and 2011, he claimed himself to be a Bangladeshi national by birth and in such a situation, there is no question of termination of his alleged Indian citizenship which he never seemed to have acquired.”

Thus, without finding any substance in the petition, the Bench dismissed the same.