On September 21, the Nagpur bench of the Bombay High Court quashed FIR and chargesheet filed against 8 Myanmar nationals who were booked for being part of Tablighi Jamaat and its activities.
The application for quashing FIR was heard by a two judge bench comprising Justices VM Deshpande and Amit Borkar and the judgment was authored by Justice Borkar.
The Myanmar nationals landed in Kolkata on March 2 and continued their journey to Nagaur by train where they informed the nearby police station of their entire schedule and also submitted the Foreigner Regional Registration Office mandated form to the police station. After the Junta curfew was announced on March 22, they were moved to Markaz Center at Mominpura, Nagpur; the information of which was provided to the police. A doctor also visited the Markaz centre and the members were put in institutional quarantine where they underwent Covid-19 test for which they all tested negative. After a quite uneventful stay until then, on April 5, 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 and were put under arrest.
The counsel appearing for the applicants, JH Aloni contended that the police were monitoring the activities of the applicants and therefore, there was no question of disobedience of the order issued under Section 144 of the CrPC. There was also no question of spreading infection as contemplated in Sections 269 and 270 of the Indian Penal Code since they all tested negative for the virus. Further, 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.
The public prosecutor stated that, relying upon some witnesses it was clear that the applicants had engaged themselves in tabligh work and preaching religious ideology, making speeches in religious places.
The court’s observations
The court held that to prosecute a person for a contravention of section 14 of the Foreigners Act, it is necessary to show that the person has done any act in violation of the condition of the valid visa issued to him for his entry and stayed in India or any part thereunder. The chargesheet had alleged that the applicants had breached condition nos. 1.25 and 19.8 of the Visa Manual which deal with “Restriction on engaging in tabligh activities” and “Foreigners visiting for tabligh work”, respectively.
The court deduced from the witnesses’ statements that the applicants studied Quran and Hadis and offered Namaz and acquainted themselves with Indian Muslim culture. The court held that the prosecution did not produce any material “to prove that the applicants were engaged in tabligh work and they were involved in preaching religious ideology or making speeches in religious places.”
The court observed that under section 195 of CrPC a court cannot take cognizance of offence under section 188 of IPC except on the complaint in writing by a public servant. “In the present case, there is no complaint in writing by the public servant concerned or by some other public servant to whom he is administratively subordinate…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,” observed the court.
The court’s findings
“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. 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,” held the court.
While considering the charges under section 269 and 270 of IPC which are concerned with spread of infectious disease, the court held, “There is no material on record to prove that applicants had indulged in any act which was likely to spread infection of Covid -19. Therefore, from the material produced in the charge-sheet, there is no evidence to substantiate the fulfillment of ingredients of Sections 269 and 270 of the Indian Penal Code.”
The court held that the police acted without jurisdiction by filing the FIR under section 188 of IPC on their own accord.
“we are 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,” held the court
While deciding that the FIR and the chargesheet against the 8 applicants be quashed, the court held that, “Compelling the applicants to undergo the trial would cause grave injustice.”
In August, the Aurangabad Bench of Bombay High Court had quashed the FIR against 29 foreign nationals and 6 Indians while also calling out blatant communalism and the way the entire incident was handled by the government, the police and the media. The judge, Justice TV Nalawade, even pointed towards the malic behind blaming the spread of Covid-19 upon Tablighi Jamaat calling it a propaganda against Muslims. It seems like a Pandora’s box is opening up as it is largely being observed that majority of Tablighi Jamaat members were only mechanically arrested and booked due to orders from their politician bosses without application of mind thus resulting in detention of hundreds of person belonging to Muslim faith from various countries, causing them mental trauma. Although, the Nagpur bench’s order does not comment on the way the police handled the matter or the trauma that the applicants must have gone through in the past 7 months, the quashing of the FIR is testimony to the fact the Tablighi members were merely incarcerated to fulfil some bigger agenda of hatred and communal divide.
The complete order may be read here.