[Breaking] There Is No Material To Prove that Tablighi Jamaat Members Indulged in Activities Which Are Likely To Spread COVID: Bombay HC [Read Order]

The Bench of Justice V. M. Deshpande and Justice Amit B. Borkar ordered thus, while noting (from the statements of the witnesses) that 8 Myanmar Nationals only read the Quran and offered Namaz at a local mosque.

The Court took into account the fact that they do not even know Hindi and therefore, there could be no question of them of engaging any religious discourse or speech.

Facts Submissions of the Applicants

The applicants are nationals of Myanmar, who had obtained Tourist Visa on arrival from Kolkata Airport to visit India and to attend religious seminars in India.

They landed in India on 02.03.2020. On 02.03.2020 itself, the applicants took a flight to Delhi and stayed in Delhi till 05.03.2020.

On 06.03.2020, the applicants reached Nagpur at 11 p.m. On 08.03.2020, online C-Form was prepared under the Foreigner Regional Registration Office and its hard copy was submitted on 09.03.2020 to Muslim Cell, Special Branch, Police Control Room, Nagpur, FRRO and State Intelligence Department, Nagpur.

On 11.03.2020 the entire schedule of the activities of the applicants was given to Police Station, Gittikhadan. They stayed under the jurisdiction of Police Station, Gittikhadan till 21.03.2020.

The Government of India called for Janta Curfew on 22.03.2020. At 06.30 am on 22.03.2020 the applicants were shifted to Markaz Center at Mominpura, Nagpur within the jurisdiction of Police Station, Tahsil and the information to that effect was provided to the Police Station but, the acknowledgement was not obtained due to Janta Curfew.

Police Station, Tahsil informed the applicants that they should remain in isolation at Markaz Center at Mominpura and the ladies were kept in a private residence at Bhankhed.

During their stay from 24.03.2020 till 31.03.2020, Dr Kkhawaja, NMC Zonal Officer, Mominpura along with his team and Police had visited the applicants.

On 03.04.2020, at about 03.30 p.m. all the applicants were sent to institutional quarantine at M.L.A. Hostel, Civil Lines, Nagpur and all the applicants had undergone a test for Covid-19, which turned out to be negative.

On 05.04.2020, the applicants were informed that the F.I.R. has been registered against them under the provisions of the Foreigners Act, the Epidemic Diseases Act, 1897 and the Disaster Management Act, 2005.

The applicants were formally arrested during the institutional quarantine period. The non-applicant/State thereafter carried out an investigation and filed charge-sheet under Sections 188, 269, 270 of the Indian Penal Code and Section 14 of the Foreigners Act, Section 3 of the Epidemic Disease Act, 1987 and Section 51 of the Disaster Management Act, 2005. The applications, therefore, have filed the present application.

It was submitted that during the quarantine period, the applicants had undergone a medical test for Covid-19 and they were found to be negative. Therefore, there was no question of spreading infection as contemplated in Sections 269 and 270 of the Indian Penal Code.

It was further submitted that there are no restrictions on foreigners from attending religious gatherings in India under the conditions of Tourist Visa and therefore, there is no violation of Section 14 of the Foreigners Act.

Court's Analysis and Decision

The court perused the statement of the witnesses made available by way of charge-sheet and then the Court observed that on 19.03.2020 and 20.03.2020, the applicants studied Quran and Hadis and offered Namaz. They acquainted themselves about Indian Muslim culture.

The Court Further observed,

"Since the applicants were not conversant with the local language, they studied Quaran and Hadis in their language. The statements of witnesses make it clear that there is no material produced by the prosecution to prove that the applicants were engaged in tabligh work and they were involved in preaching religious ideology or making speeches in religious places. There is no material produced by the prosecution in the charge-sheet which even prima-facie proves contravention of condition no. 1.25 or 19.8 of the Visa Manual." (emphasis supplied)

The Court further remarked,

"On the contrary, from the statements of the witnesses mentioned in the charge-sheet, it is clear that the applicants are not conversant with local language and they studied the Quran and Hadis in their language. From the material produced in the charge-sheet, except the statement of the witnesses referred above, there is no other material produced by the prosecution to prove ingredients of contravention of Section 14 of the Foreigners Act." (emphasis supplied)

Court's observation regarding Sections 269 and 270 of IPC

The Court observed,

"To attract ingredients of Sections 269 and 270, the person must commit any act which he knows is likely to spread infection of any disease which is dangerous to life. It is not in dispute that the applicants had undergone Covid-19 test during their period of quarantine i.e. from 03.04.2020 and their test report for infection of Covid-19 was negative. There is no material on record to prove that applicants had indulged in any act which was likely to spread infection of COVID -19." (emphasis supplied)

Court's observation regarding Section 188 of IPC

The Court observed that no prosecution could have been launched against the applicants under Section 188 of the Indian Penal Code based on a written report submitted by the Police. No F.I.R. could have been registered by the police for an offence punishable under Section 188 of the Indian Penal Code.

Further, the Court said,

"The legislative intention appears to be clear from the language of Section 195(1) of the Code, which prescribes that where an "offence" is committed under Section 188 of the Indian Penal Code, it would be obligatory that the public servant before whom such an "offence" is committed, should file a complaint before the jurisdictional Magistrate either orally or in writing. Hence, registration of an F.I.R. for an offence under Section 188 of Indian Penal Code is not permitted in law at the instance of Police." (emphasis supplied)

The Court specifically said,

"The investigating authorities acted without jurisdiction in registering the F.I.R. under Section 188 of the Indian Penal Code based on a complaint of police. The investigation conducted by the police was also without jurisdiction."

Lastly, the Court was of the opinion that allowing the prosecution to continue would be nothing but an abuse of the process of the Court in as much as there was an express legal bar against the institution of F.I.R. against an accused based on the police report.

In the backdrop of the exposition of the aforesaid position, the Court was of the considered view that the implication of the applicants herein for the offences punishable under Sections 188, 269, 270 of the Indian Penal Code and Section 14 of the Foreigners Act, Section 3 of the Epidemic Disease Act, 1987 and Section 51 of the Disaster Management Act, 2005 would be an abuse of process of law.

Further, it was noted that compelling the applicants to undergo the trial would cause grave injustice. We, therefore, deem it appropriate to quash the F.I.R. bearing No. 178/2020 and charge-sheet bearing registration No. 6076/2020 before the Judicial Magistrate, First Class, Nagpur.

Thereby, F.I.R. No. 178/2020 registered with Tehsil Police Station, Nagpur for the offences punishable under sections Sections 188, 269, 270 of the Indian Penal Code and Section 14 of the Foreigners Act, Section 3 of the Epidemic Disease Act, 1987 and Section 51 of the Disaster Management Act, 2005 and the resultant charge-sheet bearing registration No. 6076/2020 before the Judicial Magistrate, First Class, Nagpur stood quashed.

Last month, in a strongly-worded judgment, the Bombay High Court had quashed the FIRs filed against a total of 29 foreign nationals who were booked under various provisions of IPC, Epidemic Diseases Act, Maharashtra Police Act, Disaster Management Act and Foreigner's Act for allegedly violating their Tourist Visa conditions by attending the Tablighi Jamaat congregation at Nizamuddin in Delhi.

While quashing the FIRs, the HC had observed that the Tablighi Jamaat members were made "scapegoats" and criticized the "big media propaganda" against them after noting that they were "virtually persecuted" with a campaign that they were responsible for spreading COVID-19 in India.

While quashing FIRs/Chargesheets registered by Maharashtra police against Tablighi Jamaat foreigners, the Bombay High Court (Aurangabad bench) came down strongly against the media propaganda against them.

"There was big propaganda in print media and electronic media against the foreigners who had come to Markaz Delhi and an attempt was made to create a picture that these foreigners were responsible for spreading COVID-19 virus in India", the Court said adding that there was "virtually persecution" against these foreigners.

In June, the Madras HC had quashed the FIRs against Tablighi Jamaat foreigners after observing that they have "suffered enough" and urged the Centre to consider their request to return to their native places.

Again, in June, the Allahabad High Court had granted interim bail to six citizens of Bangladesh, accused of violating their visa condition by attending the Tablighi Jamaat congregation at Nizamuddin in New Delhi in the month of March and then going to Lucknow without medical examination amidst the serious apprehension of spreading coronavirus during the lockdown.

The Court had also observed that Government of India & Bangladesh can decide the fate of criminal cases otherwise than by way of a judicial trial'

Case Details:

Case Title: Hla Shwe and 7 others v. State of Maharashtra

Case No.: CRIMINAL APPLICATION (APL) NO. 453 OF 2020

Quorum: Justice V. M. Deshpande and Justice Amit B. Borkar

Appearance: Advocate J. H. Aloni (for the Applicants); A.P.P. V. A. Thakare (for the State).