On Monday, a Mumbai Metropolitan Magistrate’s court acquitted 20 people who had come to attend the Tablighi Jamaat Ijtema that was held in Delhi in February 2020. The people hailed from Indonesia and Kyrgyzstan and had come to Mumbai after the event got over. The court ruled in favour of the accused foreign nationals as the Prosecution failed to provide any evidence of wrongdoing against them.
The accused were being tried for offences under Section 37(3) of Bombay Police Act (Prohibiting assembly for preservation of public order) punishable under section 135 of Bombay Police Act.
They had been accused of spreading infection and charged under various sections of the Epidemic Act, Disaster Management Act, Bombay Police Act and the Indian Penal Code. It is interesting that the charges against both sets of foreigners were almost identical.
On March 29, 2020, an informant who visited Noor Masjid Jamaat Khana in Gaondevi Dongar, Andheri at about 10 A.M, found 10 Indonesians there who he claimed had arrived from the Delhi Markaz on February 22. Shockingly, the same informant then claimed that on the same day, at the same time, he came across 10 Kyrgyz nationals at the Tayyaba Masjid near the Andheri Subway, who had also come to Mumbai after attending the Delhi Markaz on February 22!
DN Nagar police station then registered offences against both sets of foreigners. Initially charges against the foreign nationals were as follows:
· Section 37 (3), Bombay Police Act (Prohibiting assembly for preservation of public order)
· Section 3, Epidemic Act (Disobeying regulation or order) punishable under Section 188, IPC (Disobedience to order duly promulgated by public servant)
· Section 269, IPC (Negligent act likely to spread infection of disease dangerous to life)
· Section 270, IPC (Malignant act likely to spread infection of disease dangerous to life)
· Section 14, Foreigners Act (Overstaying Visa)
· Section 51, Disaster Management Act (Obstruct a government official or employee)
However, on June 17, 2020, two more charges were added against the accused:
· Section 307, IPC (attempt to murder)
· Section 304(2), IPC (punishment for culpable homicide not amounting to murder)
The Sessions Court had granted the accused bail on a personal bond of Rs 25,000/- each and via an order dated September 21, 2020 dismissed charges under Sections 307 and 304 (2) and sent the case back to the magistrate’s court for trial.
But when the prosecution failed to prove that the accused had violated any lockdown protocol and when even the prosecution witnesses themselves admitted that they had not seen the accused contravening directions or orders issued by various authorities, the case against the foreign nationals fell flat.
The order passed by Metropolitan Magistrate RR Khan observes, “The evidence of PW1 PSI Mr. Durgesh Harishchandra Salunkhe at Exh. 16 and P. W. No.2 PI Rajendra Vishwanath Rane at Exh.18 came to be recorded through video conferencing. I have recorded the statement of accused persons under section 313 of Cr. P. C. at Exh.22. They have denied the evidence put forth by the prosecution.”
With respect to witness testimonies and what transpired during cross-examination, the court noted, “In cross-examination by accused, PW1 PSI Durgesh has admitted that the female accused were not in mosque, but, their arrangement was made at separate room. He has admitted that he has not noticed accused persons violating the lock-down or curfew.” The court further noted about the cross-examination of the second witness PI Rajendra Vishwanath Rane, “In cross-examination by accused he has admitted that he has not prepared Spot Panchanama and not recorded statement of Trustee of Masjid and adjacent residents. He has deposed that nobody have informed him that accused committed contravention of lockdown. He has admitted that nobody is harm or died due to accused persons.”
The court concluded, “From the combined perusal of evidences of Police officials of prosecution, it is apparent that both of them have deposed that accused have not committed violation of lock-down or curfew. Additionally, they have deposed that they neither entered into mosque and nor noticed accused contravening the lock-down norms. Ultimately, the prosecution witnesses themselves have clarified the position of accused persons.”
The court further said, “The brief survey of prosecution evidence transpires that none of examined witnesses have an occasion to see the accused persons together in the form of assembly. Per contra the prosecution witnesses admitted that they have not seen accused persons contravening any directions or order issued by authority. The said witnesses were also not found in position to tell where and how the accused person were residing at the time of alleged offence.”
“Thus there is no iota of evidence with prosecution to show any contravention of order by accused persons beyond all shadow of doubt,” concluded the court.
The entire order may be read here: