Bombay High Court: The present application was filed by the applicant seeking regular bail in connection with offences under Sections 335, 336(3), and 340 read with Section 3(5) of the Bharatiya Nyaya Sanhita, 2023 (‘BNS’), Sections 3(a) and 6(a) of the Passport (Entry into India) Rules, 1950, and Sections 3(1), 3(2), and 14 of the Foreigners Order, 1948. The applicant was accused of suppressing his foreign nationality and using forged Indian identity documents like Aadhaar and PAN to falsely claim Indian citizenship. A Single Judge Bench of Amit Borkar, J., held that relying on identity documents like Aadhaar, PAN, or Voter ID without verifying how they were obtained could not establish lawful citizenship. Given the crucial stage of investigation and serious allegations of national security, illegal entry, and forged documents, the Court found granting bail neither proper nor prudent.
Background:
The applicant was alleged to have entered the territory of India without a valid passport or travel documents. It was alleged that he had deliberately suppressed his foreign nationality by creating and using forged Indian identity documents, such as Aadhaar Card and PAN Card. It was further alleged that, by falsely showing himself as a citizen of India, he misrepresented his status before the authorities and obtained the Aadhaar Card by submitting fabricated documents.
The record further showed that at the time of his apprehension, the applicant was found in possession of a mobile phone which, upon forensic examination, contained digital copies of birth certificates of the applicant and his mother, issued by authorities in Bangladesh. Additionally, the contents of these documents raised a strong prima facie suspicion that the applicant was a Bangladeshi national, who entered India in violation of immigration laws.
The prosecution submitted that the verification of the Aadhaar card’s genuineness was awaited from the Unique Identification Authority of India (‘UIDAI’), but the process was delayed as it required prior approval or direction from the Court to disclose sensitive data. It was further contended that during the investigation, authorities recovered material showing the applicant had frequent contact with mobile numbers linked to Bangladesh. The Internet Protocol Detail Records (‘IPDR’) and Call Detail Records (‘CDRs’) indicated extensive cross-border digital communication, supporting allegations of his foreign origin and illegal stay in India.
The applicant submitted that he was a bona fide Indian citizen and that the prosecution had not produced conclusive evidence of his Bangladeshi nationality. He argued that the alleged forged documents had already been seized, his continued custody served no purpose, and the birth certificate retrieved from his phone was unverified, lacked his name, and was sent via WhatsApp from an unidentified number, which had not been traced or verified and therefore, mere possession of such a document could not prove foreign nationality.
The applicant further argued that he was suffering from health issues and required proper medical attention. He claimed to be a law-abiding citizen holding valid Indian documents linked to official records, , having a valid Udyog Aadhaar Card and a Ghumasta License, and contended that he had lived in Thane since 2013, thereby urging for bail based on deep community ties.
Analysis and Decision:
The Court observed that the allegations against the applicant involved deliberate concealment of identity and creation of forged documents to gain Indian citizenship benefits. The Court further emphasized that Parliament, using Article 11 of the Constitution, enacted the Citizenship Act, 1955 (‘the Act’) to establish a permanent system for acquiring and losing citizenship, beyond the temporary provisions in Part II of the Constitution.
The Court highlighted that the Act was the main and controlling law for deciding questions about nationality in India since it laid down who could be a citizen, how citizenship could be acquired, and in what situations it could be lost. The Court emphasised that merely having documents such as an Aadhaar Card, PAN Card, or Voter ID did not, by itself, made someone a citizen of India as these documents were meant for identification or availing services, but they did not override the basic legal requirements of citizenship as prescribed in the Act.
The Court opined that when there was an allegation that a person’s identity was forged or that the person was of foreign origin, the Court could not decide the matter based only on the possession of certain identity cards. The Court noted that the claim of citizenship must be examined strictly under the rules of the Act including whether the person met the conditions under Sections 3 to 6 of the Act, or any special provisions applicable to their case.
The Court observed that the law drew a clear line between lawful citizens and illegal migrants, who were barred from obtaining citizenship through most legal routes under the Act. The Court emphasised that this distinction protected national sovereignty and ensured benefits meant for citizens were not wrongfully taken. The Court further noted that under Section 9 of the Foreigners Act, 1946, if the Government presented credible evidence raising suspicion about a person’s citizenship, the burden of proof shifted to that person, and unless discharged, the legal presumption would work against them.
The Court observed that the applicant claimed the birth certificates found on his phone were sent via WhatsApp by an unknown person and were unverified. However, the Court noted that such an explanation could not be accepted at this early stage without proper investigation, as the source, genuineness, and relevance of the documents needed verification by authorities concerned.
The Court noted that official confirmation of the Aadhaar card and other documents was still awaited from UIDAI and other authorities, and that investigation under Section 193(8) of the Bharatiya Nagarik Suraksha Sanhita, 2023 was ongoing regarding the applicant’s identity. The Court further highlighted that the concern raised by the prosecution about the possibility of the applicant running away if released on bail was serious and could not be ignored.
The Court, while rejecting the bail application, found it neither proper nor prudent to grant bail at this stage. However, the Court left open the option for the applicant to revive his bail request if the trial was not concluded within one year from the date of the order.
[Babu Abdul Ruf Sardar v. State of Maharashtra, 2025 SCC OnLine Bom 2862, decided on 12-08-2025]
Advocates who appeared in this case:
For the Applicant: Jyotiram S. Yadav
For the Respondent: Megha S. Bajoria, APP
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