Tablighi Jamaat: Karnataka HC Quashes Cases Against 9 Foreigners; Imposes Condition That They Should Not Visit India In Next 10 Years [Read Order]

A bench of Justice Krishna S Dixit, allowed the petitions filed by the foreign nationals who were arrested under the provisions of the Foreigners Act, 1946 for the violation of the conditions of visas. They have been directed to pay a fine that may be levied by the competent authority. The court has refused to quash the case registered against seven Indian nationals, who are members of the Jamat, stating their case stands on a different footing.

The authorities claimed that the Foreign nationals had entered India on the basis of e-Tourist visa and were found to be carrying out preaching of religious principles, an activity which is permissible only under the Missionary Visa.

Advocate Mohammed Tahir appearing for the accused argued that "There is no specific prohibition in the Visas in question for preaching religious principles in the Tablighi congregation."

This argument was turned down by the court saying "The very nature of these Visas, what is permissible is what is specifically provided for and therefore, the question of one looking for prohibition is irrelevant to say the least. In other words, what is not provided for in the Visa, is deemed to be impermissible; thus, the general principle that what all is not prohibited is permissible for a natural person and what all is not provided for is impermissible for a juristic person, ordinarily cannot be invoked by foreign nationals."

Tahir then relied on two unreported judgments, (Mr.Junia Erastus Mayemba Vs. The Bureau of Immigration) and (Mr.Freddy Tshimanga Kanyama Vs. Bureau of Immigration) of the Karnataka High court to argue that "The intended prosecution is not desirable since it would eventually result in overstaying of the foreign nationals at the cost of State Exchequer and therefore, these foreign nationals be granted exit at the earliest."

The Special Public Prosecutor V M Sheelvanth and Assistant Solicitor General C Shashikantha argued that if at all the accused foreigners are shown mercy, which is an attribute of Sovereign Power in view of the aforesaid two judgments, this court should prescribe similar conditions as are stipulated by the Madras High Court in Md. Kameual Islam and Others Vs. State, 2020 (SCC OnLine Mad 1171).

The petitioners' counsel agreed for the same, following which the court imposed similar conditions and held that its order will not act as a precedent.

The bench also rejected the the allegation made by the petitioners that "The criminal proceedings are initiated by the police, with the prejudice generated by the Media propaganda, and for the statistical purpose of the State."

The court said "Having examined the entire file made available by the learned SPP, does not find even an iota of material for entertaining such a baseless grievance; on the contrary, this gathers from the records a legitimate impression that the police having stood tall, exercised a lot of restraint despite running a huge risk of COVID-19 infection and tolerating the attack/assault by the miscreants; this court will be failing in its duty if it does not place on record a deep appreciation of the State Police for their yeoman service being rendered during COVID crises."

In June, the Madras HC had closed cases against 31 foreign Tablighis after saying that they have "suffered enough", and urged the Centre to consider their pleas to return to their native countries.

CRIMINAL PETITION NO. 2376/2020  
FARHAN HUSSAIN And STATE BY THILAK PARK P S TUMKUR CITY,
Coram: Justice Krishna S Dixit.
Date of Order: August 5, 2020.
Appearances:
Advocate Mohammed Tahir for Petitioners.
Special Public Prosecutor V M Sheelvanth a/w SPP V S Hegde and Advocate Namitha Mahesh B G, for State
ASG: C Shashikantha for Union of India.

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