Wrong Forum, Right Protection: Calcutta High Court Shields Bangladeshi Woman Convicted Under Foreigners Act From Deportation Until Her CAA Citizenship Application Is Decided

A woman who said she entered India from Bangladesh in 2011 fearing religious persecution, and who later married and settled in India, was convicted by the ACJM, Bongaon under Section 14 of the Foreigners Act and sentenced to two years' imprisonment and a fine. Her appeal had been pending in the High Court, where an earlier prayer for suspension of sentence was rejected (Paras 1–2, 4). The Court noted that no one had pointed out that an appeal against an ACJM's conviction lies to the Sessions Court, and dismissed the appeal as not maintainable, with liberty to file a proper appeal (Paras 3, 7, 10–11). But the State accepted that she was apparently covered by the Citizenship (Amendment) Act, 2019 and the 2025 Exemption Order, the Union said the Act and Order 'may enure' to her benefit, and she was due to complete her sentence on 21 October 2026 with her CAA application still pending (Paras 4–6, 8). Exercising inherent powers, the Court directed that on completing her sentence she be released to a proper holding centre with all necessary amenities for a decent living, and that she not be deported to Bangladesh until her CAA application is decided, even if she files a fresh appeal (Paras 9, 12).

Key Proposition: Even while dismissing as not maintainable an appeal filed in the wrong forum, the High Court may, in exercise of its inherent powers, direct that a person convicted under the Foreigners Act who has a pending citizenship application under the Citizenship (Amendment) Act, 2019 be kept in a holding centre with decent amenities after serving her sentence and not be deported until that application is decided.

Background / Synopsis :

By judgment dated 4 January 2025, the ACJM, Bongaon, North 24 Parganas, in G.R. Case No. 3941 of 2024 (renumbered 81 of 2025), arising from Gaighata P.S. Case No. 948 dated 21 October 2024, convicted the appellant under Section 14 of the Foreigners Act and sentenced her to two years' imprisonment and a fine of Rs. 10,000 (Para 1).

The appeal was admitted on 24 October 2025; a prayer for suspension of sentence was rejected on 2 February 2026, and a second application came up before this Bench (Para 2).

The appellant says she entered India in 2011 fearing religious persecution in Bangladesh, married and settled here, and has a pending application for citizenship under the CAA (Para 4).

She was due to complete her sentence on 21 October 2026, or earlier with remission (Paras 4, 8).

Issues For Consideration :

Whether the appeal against the ACJM's conviction is maintainable before the High Court.

What directions should be given, given that the appellant would shortly complete her sentence and has a pending CAA citizenship application.

Submissions Of Parties :

• Appellant:

She fled religious persecution in Bangladesh in 2011 and is covered by the Citizenship (Amendment) Act, 2019 read with the Citizenship Act, 1955, and by the Immigration and Foreigners (Exemption) Order, 2025 (Para 4).

She will complete her sentence on 21 October 2026; her CAA application is pending (Para 4).

• State of West Bengal:

She is apparently covered by the CAA and the 2025 Exemption Order, and though she pleaded guilty on some instructions she would otherwise be entitled to its benefit (Para 5).

Bail pending appeal may in any case be granted in terms of Frank Vitus v. NCB (Para 5).

• Union of India:

The Amendment Act and the 2025 Order may enure to her benefit, but instructions are needed on her citizenship application (Para 6).

Pending deportation, a person can be kept at a holding centre under MHA guidelines (Mohammed Edris v. Union of India; State memo dated 23 May 2026) (Para 6).

Court's Observations & Analysis :

• Re: Issue (i): Maintainability

None of the counsel, nor the departmental note, pointed out that the conviction was by an ACJM, so the appeal lay to the Sessions Court (Paras 3, 7).

Held: The appeal is not maintainable before the High Court and is dismissed, with liberty to file before the Sessions Court. (Paras 10–11)

• Re: Issue (ii): Protective directions

The appellant will serve out her sentence by 21 October 2026 or earlier with remission, and would thereafter be liable to be pushed back to Bangladesh (Paras 8, 12).

As the matter remained pending in the High Court for a considerable time, the Court exercised its inherent powers to pass directions in the interest of justice (Para 9).

Held: Release to a holding centre with amenities, and no deportation until the CAA application is decided. (Para 12)

Notable Observations:

"It is unfortunate that it was never pointed out, especially on behalf of the appellant that as the order had been passed by the learned ACJM, Bongaon, the appeal would lie before the Sessions Court and not before this Court." (Para 7)

"…the appellant shall not be deported to her country Bangladesh till her application for Indian citizenship is disposed of." (Para 12(ii))

Decision & Directions :

CRA (SB) 140 of 2025 dismissed as not maintainable; the application for suspension of sentence disposed of. (Paras 10, 13–14)

Directions under inherent powers (Para 12):

1. On serving her sentence on 21 October 2026 or earlier, the appellant shall be released from the correctional home and placed at a proper holding centre, with all necessary amenities for a decent living while there.

2. She shall not be deported to Bangladesh until her application for Indian citizenship is disposed of.

3. She may file a proper appeal before the Sessions Court, which shall decide it expeditiously and uninfluenced by these observations; even if such an appeal is filed, she shall not be deported until her CAA application is decided.

Legal Provisions Discussed & Precedents Cited :

• Foreigners Act, 1946 – Section 14 and 14(c).
• Citizenship Act, 1955 read with the Citizenship (Amendment) Act, 2019.
• Immigration and Foreigners (Exemption) Order, 2025 (Ministry of Home Affairs).
• Inherent powers of the High Court (criminal jurisdiction).
• MHA guidelines on holding centres; Government of West Bengal memo dated 23.05.2026.
• Frank Vitus v. Narcotics Control Bureau, (2025) 3 SCC 1 – Cited by the State.
• Mohammed Edris @ Md. Idrish v. Union of India, WPA 5012 of 2026 (Cal HC, unreported) – Cited by the Union.

Case Details :

• Case / Party Name: Oishe Biswas v. State of West Bengal
• Case Number(s): CRA (SB) 140 of 2025 with CRAN of 2026 (CNR WBCHCA0443262025)
• Coram / Judges: Jay Sengupta, J. – Single Judge (heard via video conference)
• Counsel Appearances: For the Appellant: Mr. Jayanta Narayan Chatterjee, Senior Advocate, with Mrs. Moumita Pandit, Ms. Jayashree Patra, Ms. Alivia Dutt, Mr. Suprava Dey and Mr. Siddharta Roy, Advocates. For the Union of India: Mr. Dhiraj Kumar Trivedi, Learned ASGI, with Mr. Tapadip Gupta and Ms. Divyanshi Shaw, Advocates. For the State: Mr. Rajdeep Majumdar, Learned AAG, Mr. Gouranga Kumar Das, Learned APP, with Mr. Bankim Pal, Mr. Sayan Mukherjee, Mr. Soumya Raha and Mr. Yuvraj Chatterjee, Advocates.

Disclaimer: This summary is an editorial aid and does not form part of the judgment. Refer to the original judgment before citing.