[Tablighi Jamaat] Compelling Markaz attendees to undergo trial would be grave injustice: Bombay HC quashes FIRs against Myanmarese citizens

The Bombay High Court has passed another significant judgment quashing the FIRs filed against foreign nationals who attended the Tablighi Jamaat Markaz at Delhi in March this year..The Markaz attendees hailing from Myanmar had visited the Tablighi Jamaat in Delhi from March 2-6, and thereafter travelled to Nagpur, where they were arrested.They were accused of violating visa rules by propagating and preaching their religion, not complying with orders passed by a public servant, and spreading COVID-19. They were charged with various offences under the the Indian Penal Code, the Epidemic Diseases Act, the Disaster Management Act and the Foreigners Act. .Finding the allegations against them unsubstantiated, a Bench of Justices VM Despande and Amit B Borkar of the Nagpur Bench of the High Court ruled:."...we are of the considered view that the implication of the applicants herein for the offences punishable under Sections 188, 269, 270 of the Indian Penal Code and Section 14 of the Foreigners Act, Section 3 of the Epidemic Disease Act, 1987 and Section 51 of the Disaster Management Act, 2005 would be an abuse of process of law.".The Bench held that compelling the applicants to undergo trial for the said offences would cause grave injustice..On violation of visa rules.Contrary to the State's stance that the attendees preached and propagated their beliefs in a violation of visa rules, the Court found that the attendees only learnt about Indian Islamic culture and studied the scriptures in their native languages during their stay in India. Barring almost identical statements made by the witnesses arraigned, there was no proof, not even prima facie, of visa rule violations..On spread of COVID-19.The attendees had been in isolation and under medical supervision during their stay, and their tests had returned a negative result. The Court concluded that there was no material to record that they "had indulged in any act which was likely to spread infection of COVID -19." The judgment reads,."To attract ingredients of Sections 269 (negligent act likely to spread infection) and 270 (malignant act likely to spread infection), the person must commit any act which he knows is likely to spread infection of any disease which is dangerous to life...there is no evidence to substantiate the fulfillment of ingredients of Sections 269 and 270 of the Indian Penal Code."Bombay High Court.On disobeying a rule promulgated by a public servant.The prosecution alleged that the attendees violated a rule that mandated persons flying in from countries with a high incidence of COVID-19 to voluntarily report to a designated control room. The State asserted that the attendees violated Section 188 of the Indian Penal Code, which describes the offence of disobedience to a public servant's command. .Finding that the Sub-Inspector of Police had filed a chargesheet and forwarded it to a Magistrate who had taken cognizance, the Court ruled that this was a violation of procedure. As per a Supreme Court ruling, which the Court found applicable to Section 188 as well, a public servant such as a tehsildar was to have forwarded the complaint in question..It was stated:."The legislative intention appears to be clear from the language of Section 195(1) of the Code, which prescribes that where an "offence" is committed under Section 188 of the Indian Penal Code, it would be obligatory that the public servant before whom such an "offence" is committed, should file a complaint before the jurisdictional Magistrate either orally or in writing.".Further, the Court recorded that there was no indication of a violation of the provisions of the Disaster Management Act as well, from the material produced..Holding the FIR filed as well as the cognizance taken to have been defective in law, the High Court annulled the report on this count as well..Taking into consideration all of these reasons, the FIRs against the attendees were quashed..Notably, the attendees had placed reliance on the Bombay High Court's recent ruling that quashed proceedings against another batch of Markaz attendees. .As per Justice Nalawade's strongly-worded opinion in that case,."... A political Government tries to find the scapegoat when there is pandemic or calamity and the circumstances show that there is probability that these foreigners were chosen to make them scapegoats. The aforesaid circumstances and the latest figures of infection in India show that such action against present petitioners should not have been taken. It is now high time for the concerned to repent about this action taken against the foreigners and to take some positive steps to repair the damage done by such action..."Justice Nalawade.Read the Order here: