Burden of Proving Exemption Under Section 33 of the Immigration and Foreigners Act Lies Upon the Claimant.

The petitioner, a 27-year-old Hindu woman from Bangladesh, entered India on 07.12.2024 with a valid passport and tourist visa valid until 06.01.2025.

She married an Indian citizen in December 2024 but later alleged matrimonial cruelty.

On 29.12.2025 (nearly one year after her visa expired), she was arrested and charged under Section 21 of the Immigration and Foreigners Act, 2025, for illegal stay.

The petitioner moved the High Court to quash the proceedings, claiming she is a victim of religious persecution in Bangladesh and is thus protected by the statutory exemptions granted to minority communities under the Immigration and Foreigners (Exemption) Order 2025 and the Citizenship (Amendment) Act (CAA), 2019.

The State opposed the plea, arguing her "fear of persecution" was a belated afterthought to evade criminal liability.

Section 21 of the Immigration and Foreigners Act, 2025, which penalizes entry or stay without valid documents.

Section 16 of the same Act, which places the "burden of proof" squarely on the individual to prove they are not a foreigner or belong to an exempted class.

Order 3(e) of the Immigration and Foreigners (Exemption) Order, 2025, which exempts Hindus and other minorities from Afghanistan, Bangladesh, and Pakistan from prosecution if they entered India by 31.12.2024 due to religious persecution.

The principles for quashing FIRs established in State of Haryana v. Bhajan Lal.

The cautious exercise of inherent powers under Section 482 Cr.P.C. as laid down in Som Mittal v. Government of Karnataka.

The Court observed that while the petitioner fits the demographic profile of the exempted class (a Hindu from Bangladesh), the protection under Order 3(e) is not automatic; it requires the person to have been "compelled to seek shelter... due to religious persecution or fear of religious persecution".

The Court emphasized that under Section 16 of the Act, there is a "reverse onus," meaning the petitioner must affirmatively prove her claim of persecution.

Because the petitioner entered on a tourist visa and only raised the plea of persecution after being charged—alleging matrimonial disputes as her immediate grievance—the Court found that "fear of persecution" is a factual determination that requires evidence such as credible testimony, documentary proof, or history of discrimination.

The Court determined that the validity of this defense cannot be decided in a quashing petition and must be adjudicated during the trial.

It held that the burden of proving the "persecution" exemption lies on the petitioner during the trial as per the statutory reverse onus clause.

The Court clarified it expressed no opinion on the merits and directed the Trial Court to decide the matter expeditiously.

The court's prior order regarding the relaxation of bail conditions remained in force.