Calcutta High Court Denies Bail To Chinese Man Who Allegedly Attempted To Enter India With Fake Nepali Passport, Travel Documents

The Calcutta High Court Circuit Bench at Jalpaiguri has denied bail to a Chinese national who attempted to enter India using a fake Nepali passport and travel documents, posing as a Nepali citizen. 

A single bench of Justice Subhenu Samanta upheld the order of the trial court and stated: Magistrate had taken cognizance of the offence on the basis of the charge sheet submitted by the police and refused to grant default bail. I find no illegality or irregularity in the impugned order passed by the Learned Magistrate. The Learned Magistrate has correctly taken cognizance of the offence on the strength of the charge sheet, and as the charge sheet has been submitted has been correctly refused the prayer for default bail.

Petitioner was accused of being a Chinese citizen and trying to enter India with a fake Nepali passport and citizenship card on Nepal, posing as a Nepali citizen. It was the case of the petitioner that according to the nationality law of China, the present petitioner had lost his Chinese nationality and acquired citizenship in Nepal. During custody, the petitioner had submitted before the Magistrate regarding the verification of the genuineity of his Nepali passport.

It was submitted that the Magistrate had also directed the concerned investigating agency to expedite the process of verification, but had rejected the prayer of default bail by passing the impugned order. It is the further case of the petitioner that the Magistrate has illegally passed the order of taking cognizance of an incomplete charge sheet.

It was argued that since the verification of the passport was pending, the act of denial of statutory bail was not justified.

Counsel for the state argued that the investigation disclosed that the Nepali passport was suspected to be forged. It was stated that the petitioner was earlier apprehended by Delhi Police wherein he was cited as a Chinese Citizen. Now in the present case, he placed a fake Nepali passport and claimed to be a Nepali Citizen.

It was submitted that there are sufficient materials to hold that the alleged passport is a forged one, and the name of the father in the petitioner's Nepal Passport was different.

Counsel for the state further argued that according to the provisions of Sections 8/9 of the Foreigners Act, the onus lies upon the accused to prove that he is a citizen of a particular country. It was argued that the charge sheet submitted by the police cannot be said to be a document submitted only to deny the default bail of the present petitioner.

Upon hearing the arguments, the court held that although default bail is an indefeasible right, it is enforceable only prior to the filing of the charge sheet, and does not survive or remain enforceable after the submission of the charge sheet. Thus, once the charge sheet has been submitted the question of default bail cannot arise but the accused may ask for regular bail on merits.  

The verification Report regarding the genuineness of Nepali Passport of the present petitoner may be a good ground on behalf of the present petitioner in trial but at this juncture the same fact cannot be enquired into on the view of Section 8 and Section 9 of the Foreigners Act, 1946, wherein burden of proof is upon the accused against whom the charge has been levelled as a Foreigner, the Court added.

Accordingly, it found that there was no error by the magistrate in denying the prayer for default bail and dismissed the plea.

Citaiton: 2024 LiveLaw (Cal) 158

Case: Peng Yongxin@ Umesh Yonjan Vs. State of West Bengal

Case No: CRR 39 of 2024

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