Tablighi Jamaat Foreigners- SC Allows Transfer of Pending Trials in UP; Directs HC to Designate Specific Courts for Expeditious Disposal

The Bench comprising of Justices AM Khanwilkar, Dinesh Maheshwari and Sanjiv Khanna ordered the State Government to approach the Principal Bench of Allahabad High Court with an application to decide which, and how many, courts would take up the trials pending across various zones in UP. The Court also directed the High Court to identify the specific court(s) within a period of one week where all the matters may be listed for hearing.

The Bench further clarified that the trial Court would take up the matter expeditiously in order to wrap up the trial within 8 weeks.

The Apex Court was considering an application by foreign nationals who were facing trial in courts across the State UP. They had prayed for similar relief of consolidated FIRs and expedited trial, as had been granted by Supreme Court with respect to the original matter filed by 34 petitioners from Delhi.

On September 1, the Court had similarly allowed the transfer of all trials pending before Bihar Courts to one particular Court.

As the present application came up for hearing today, the Bench expressed its inclination to allow one court per zone in UP to conduct trials. Distinguishing this from Delhi and Bihar's case, the Court took note of the size of the state of UP where trials are being conducted in 8 different zones. "We are thinking of saying one court for every zone can conduct trial for cases in that zone", remarked Justice Khanwilkar

Senior advocate, Dr. Maneka Guruswamy appearing for the applicants however suggested that fewer courts, not more than a total of 2-3 courts, may be tasked with taking up the trials across the State.

Urging the Bench to restrict hearings in pending trials before the least possible specified courts, Guruswamy highlighted the lack of uniformity in bail conditions being laid down in courts across different zones in UP.

Pressing the need to transfer the cases before one or two courts, she highlighted that while bail was being granted in certain cases in different zones, the conditions imposed were not practical at the moment. "Take Zone 3, Bareilly, for example, where 8 Indonesian nationals were granted bail. The first three bail conditions are fine. But the fourth condition is that the first secretary of the Embassy must appear in person before Court", she pointed out.

Similarly, having referred to another bail order from the Prayagraj zone, Guruswamy submitted that "since physical courts aren't functioning, though bail has been granted, conditions of bail cannot be fulfilled."

In this light, she urged that only a few specific courts be designated to hear the trials of applicants.

Having consulted with UP State Counsel, advocate Garima Prashad, Justice Khanwilkar stated that it deemed fit to ask Allahabad High Court to decide which court(s) will hear the issue.

"We suggest prosecution files an application in High Court which can then decide whether one court should hear the matters by merging various zones or different courts in different zones will hear the same", he stated.

Having recorded the submissions regarding a lack of uniformity in bail orders from courts in different zones of the State, the Apex Court directed the prosecution to move an application before Allahabad High Court to consider the transfer of pending appeals in light of previous orders passed by SC with respect to similar cases in NCT of Delhi.

Directing the High Court to decide this within one week of receiving the application, Khanwilkar J. further clarified that the trial Court must wrap up the trial expeditiously within 8 weeks, like in previous orders.

Before concluding, UP Counsel Garima Prashad informed court that there were originally 387 cases before UP courts, out of which the trial in 200 cases have already been disposed off. "We have been in expeditious mode already", she stated.

On August 6, a Bench headed by Justice Khanwilkar had directed all pending matters in Delhi to be transferred to the Chief Metropolitan Magistrate in Saket, and accordingly directed the CMM to dispose of all the cases expeditiously, within 8 weeks.

On that day, the Centre had informed Supreme Court that look out notices issued against foreign nationals for their alleged involvement in Tablighi Jamaat activities at Delhi's Nizammuddin Markaz had been withdrawn. Thus, Solicitor General Tushar Mehta had apprised the Court that all such foreign nationals, who were initially blacklisted by the Ministry of Home Affairs, may leave the country during the pendency of trial against them.

Upon being asked about the status of trials, Mehta informed Court that 10 out of the 34 original petitioners had chosen to contest the criminal cases against them instead of opting for a plea bargain. The SG had further stated that these trials were before different Courts in Delhi and suggested that they may be brought before one Court to be disposed of expeditiously. Agreeing with this suggestion, the Court had Ordered as follows-

"…we deem it appropriate that the criminal cases concerning these ten petitioners pending in different Trial Courts in the NCT of Delhi be brought before the same Court hearing Criminal Case arising out of FIR No.63 of 2020, so that all the cases can be disposed of expeditiously. Accordingly, we direct transfer of stated cases to the Chief Metropolitan Magistrate, South-East Delhi, Saket Court Complex, Saket as suggested and direct the said Court to dispose of all the cases expeditiously preferably within eight weeks from today."

On the issue of sending the foreign nationals back to their home countries, SG Mehta iterated that if those who were under trial chose to go back to their country during the pendency of the case, they may render an apology and be allowed to go back subject to the Orders of the Court. Mehta added that even the remaining petitioners who were facing trial had the option of going in for a plea bargain.

Recording these submissions of the Solicitor, the Bench had also noted as follows-

"Learned Solicitor General has also, in all fairness, submitted that if the concerned petitioners tender apology, as envisaged by the Madras High Court in the concerned criminal case, the said petitioners can be permitted to leave India despite the pendency of the criminal case but subject to such orders that may be passed by the concerned Trial Court…

…The learned Solicitor General has also fairly submitted that as of today only ten petitioners have decided to contest the criminal cases pending against them and are not willing to exercise the option of plea bargaining."

Background

On April 2, the Press Information Bureau (PIB) communicated the Government's decision to blacklist as many as 960 foreigners from 35 countries who were present in India. At the same time, orders were issued to Director Generals of Police (DGPs) of all States and Union Territories as well as the Commissioner of Delhi Police (CP) to register FIRs against such foreign nationals.

In light of this, a plea had been filed before the Supreme Court, contending that the decision had been taken unilaterally and arbitrarily. Their plea emphasised that a decision of en masse blacklisting without issuing notice or providing an opportunity of being heard is in blatant violation of not only principles of natural justice, but also, of the Right to Life under Article 21.

The petitioners, all of whom have been blacklisted, submitted that not only has the sudden decision led to FIRs being registered against them but has also resulted in them having to forfeit their passports to the State Administration. This, they contended, is a complete deprivation of personal liberty, without following procedure established under law.

Hearing the matter, the Court had allowed all these foreign nationals to make representations challenging their individual visa cancellation orders before appropriate authorities. While a certain number of them had opted for a plea bargain, a few others had expressed apprehension in doing so as they would face difficulties in their home countries if they were charged of a crime in a foreign country. Therefore, they had chosen to face trial.