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Most news coverage over the past few days, especially related to the breakout of the COVID 19 pandemic has been sensationalised and concentrated on the Tablighi Jamaat’s Congregation held from March 11-13. The Delhi government has called it a ‘COVID19 hotspot’. The same week that the congregation came under much criticism for continuing the congregation despite of Delhi government’s order on ban on mass gatherings above 50 persons, a criminal case was registered against Maulana Saad and other members of the Tablighi Jamaat have been booked under some sections of the Disaster Management Act and Sections 269 (Negligent act likely to spread infection of disease), 270 (malignant act likely to spread infection of disease), 271 (disobedience to quarantine rule) and 120b (punishment of criminal conspiracy) of the IPC.
As more and more people who attended this congregations are turning out to be COVID positive cases, the situation intensifies. Reportedly, the Markaz in south Delhi organised Tabligh-e-Jamaat from March 11 to 13 and at least 3,400 people attended this event including Indians as well as foreigners. In Delhi itself 24 people who attended the event have tested positive so far and the number is expected to rise as many state governments are asking people who attended this event to come forward to get themselves tested. Arvind Kejriwal has strongly condemned this and slammed the organisers for holding such a religious gathering at a time when Delhi government had banned huge gatherings.
Markaz Nizamuddin, the international headquarters of the Jamaat for nearly 100 years, has said when Prime Minister Narendra Modi announced the “Janta Curfew” on March 22, they discontinued ongoing programmes but a large number of people were stuck there because of the closure of transport services.
The legal aspect
From the beginning till the middle of March, many state governments had started invoking the colonial era law, the Epidemic Diseases Act, 1897, in order to formulate further regulations that would help them contain and combat the epidemic disease.
Meanwhile, the central government also invoked the Disaster Management Act, 2005 and declared COVID19 as a “notified disaster”. On March 24, the country’s Prime Minister, Mr. Narendra Modi, declared a nation wide 21-day lockdown starting midnight while majority of states had already declared such a lockdown within their jurisdiction before March 23. The Ministry of Home Affairs then issued a list of guidelines to be followed during this 21-day lockdown which would last till April 14. These guidelines mentioned that any person who violates these containment measures will be liable to be proceeded against as per section 51 to 60 of the Disaster Management Act as well as Section 188 of the Indian Penal Code (IPC).
Additionally, the IPC has some specific offences affecting public health, safety, convenience, decency and morals. Under this chapter, are sections 269 and 270 which become applicable in times like these.
Section 269 – Negligent act likely to spread infection of disease dangerous to life.
The punishment under this offence is up to 6 months or fine or both. Now that the news of social distancing and lockdown of states has been widely communicated, one cannot plead ignorance and anyone flouting the lockdown regulations can be booked under this section by the police on patrol.
Section 270- Malignant act likely to spread infection of disease dangerous to life.
The only difference between sections 269 and 270 is that the former is invoked if the act is negligent and this one is invoked if the act is malignant which means it is backed with malicious, bad intent, done in bad faith. Here, the punishment is up to 2 years or fine or both.
The relevant section under the Disaster Management Act is section 51 which deals with offence of refusing to comply with directions given by government and any other authority, and is punishable with up to 1 year in prison or fine or both and if this leads to loss of lives or any imminent danger, punishment will extend up to 2 years in prison.
While these charges are valid and applicable against the Maulana and other management members of the Jamaat congregation, why was the charge of criminal conspiracy invoked?
Criminal conspiracy
Section 120B deals with the punishment of criminal conspiracy and section 120A actually defines what the offence entails.
Section 120A
120A. Definition of criminal conspiracy.—When two or more persons agree to do, or cause to be done,—
1. an illegal act, or
2. an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy: Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.
Explanation – It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object.]
Section 120B
120B. Punishment of criminal conspiracy.—
(1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, 2[imprisonment for life] or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.
(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both.]
Since none of the offences which are said to be “conspired” by the Tablighi management, are punishable with either death or imprisonment or rigorous imprisonment, sub section 2 applies here, and a punishment of up to 6 months is invited here, in addition to the punishments of the other offences.
Criminal conspiracy under the Indian Penal Code (IPC) is a substantive offence in itself and punishable separately. There have been rare instances where persons have been tried for commission of the substantive act of criminal conspiracy. The ingredients of the offence of criminal conspiracy is, there needs to be an agreement among two or more persons and that agreement should be to do either an illegal act or any act by illegal means.
The stand of the prosecution will either be that the Tablighi members conspired to organise this event with the intent to spread the disease (which is an illegal act) or that they continued with the event (which took place before any Delhi government order against large gatherings) despite of the order against large gatherings, which could amount to an act done by illegal means. As mentioned before, it is usually difficult to prove the factum of conspiracy, it is ultimately a matter to be decided by the courts.
Looking at some legal precedents which lay down the ingredients of the offence of criminal conspiracy. In Ram Narayan Popli v CBI, the court laid down several aspects of Criminal Conspiracy,
(a) an object to be accomplished,
(b) a plan or scheme embodying means to accomplish that object,
(c) an agreement or understanding between two or more of the accused persons whereby, they become definitely committed to cooperate for the accomplishment of the object by the means embodied in the agreement, or by any effectual means, and
(d) in the jurisdiction where the statute required an overt act.
Further, in Mukesh & anr v. State for NTC of Delhi and ors (Cri.A. 609 -610 / 2017), the Supreme Court held that The proviso to Section 120A engrafts a limitation that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.
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