In a latest, landmark and extremely laudable judgment titled Hla Shwe and 7 others v. State of Maharashtra in Criminal Application (Apl) No. 453 of 2020 delivered just recently on 21 September 2020, the Nagpur Bench of Bombay High Court comprising of a Division Bench of Justice VM Deshpande and Justice Amit B Borkar have laid down clearly, categorically and convincingly that there is no material to prove that Tablighi Jamaat members indulged in activities which are likely to spread Covid. The Court also quashed the FIR and the chargesheet filed against 8 Myanmar nationals who were booked for Tablighi activities while observing that allowing the prosecution to continue would be nothing but an abuse of the process of court especially because of lack of evidence supporting the charges levelled against the foreigners. It is good to see that the Nagpur Bench of Bombay High Court took into account the fact that the 8 Myanmar nationals did not even know Hindi and therefore there could be no question of them of engaging in any religious discourse or speech.
While elaborating on the facts of the case, it is then brought out in para 4 that, "The case of the applicants in nutshell is as under:-
(a) The applicants are nationals of Myanmar, who had obtained Tourist Visa on arrival from Netaji Subhash Chandra Bose International Airport, Kolkata to visit India and to attend religious seminars in India. They landed in India on 02.03.2020. On 02.03.2020 itself the applicants took a flight to Delhi and stayed in Delhi till 05.03.2020. On 06.03.2020, the applicants started their journey by Kerala Express and reached Nagpur on the same day at 11 p.m. On 08.03.2020, online C-Form was prepared under the Foreigner Regional Registration Office and its hard copy was submitted on 09.03.2020 to Muslim Cell, Special Branch, Police Control Room, Nagpur, FRRO and State Intelligence Department, Nagpur. On 11.03.2020 the entire schedule of the activities of the applicants was given to Police Station, Gittikhadan. They stayed under the jurisdiction of Police Station, Gittikhadan till 21.03.2020.
(b) The Government of India called for Janta Curfew on 22.03.2020. At 06.30 am on 22.03.2020 the applicants were shifted to Markaz Center at Mominpura, Nagpur within the jurisdiction of Police Station, Tahsil and the information to that effect was provided to the Police Station but, the acknowledgement was not obtained due to Janta Curfew. Police Station, Tahsil informed the applicants that they should remain in isolation at Markaz Center at Mominpura and the ladies were kept in a private residence at Bhankhed. During their stay from 24.03.2020 till 31.03.2020, Dr Khwaja, NMC Zonal Officer, Mominpura along with his team and Police has visited the applicants. On 03.04.2020, at about 03.30 p.m. all the applicants were sent to institutional quarantine at M.L.A. Hostel, Civil Lines, Nagpur and all the applicants have undergone a test for Covid-19, which was negative.
(c) On 05.04.2020, 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.
(d) The applicants were formally arrested during the institutional quarantine period. The non-applicant/State thereafter carried out an investigation and filed charge-sheet 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. The applicants, therefore, have filed the present application."
While shedding further light, it is then pointed out in para 5 that, "This Court on 09.09.2020 issued notice to the non-applicant/State granting two weeks to the non-applicant/State as prayed. The non-applicant/State on 18.09.2020 filed the reply sworn by Shri Ramdas R. Patil, API, Police Station, Tahsil, Nagpur. The non-applicant/State in their reply have not disputed the dates of arrival of the applicants in India and at Nagpur. The non-applicant/State has stated in its reply that after arriving in India on Tourist Visa for sightseeing, the applicants started preaching activities and participated in religious activities thereby violating Section 14 of the Foreigners Act and in particular condition nos. 1.25 and 19.8 of the Visa Manual. The non-applicant/State relied upon the statements of the witnesses of Mohd. Mazar, Mohd. Yasin, Faiyaz Khan, Mehmood Khan and 15 others, who as per the case of the non-applicant/State stated that all the applicants were actively involved in preaching activities by taking religious education and discourses. The male applicants were residing jointly in Markaz Lal Building in contravention of the orders dated 23.03.2020 and 31.03.2020 issued under Section 144(1)(3) of the Code and violated condition no. 8 of the said order. It is submitted that charge-sheet has been filed on 21.07.2020 and therefore, from the statement of the witnesses and other evidence collected by the Investigating Agency, there is ample material on record to prosecute the applicants and therefore, prayed for dismissal of the application."
More crucially, the Court after going through the statement of the witnesses made available by way of charge sheet as pointed in para 11 felt convinced of the innocence of the applicants and minced no words to observe in para 12 that, "Reading of the aforesaid statement makes it clear that on 19.03.2020 and 20.03.2020, the applicants studied Quran and Hadis and offered Namaz. They acquainted themselves about Indian Muslim culture. Since the applicants were not conversant with the local language, they studied Quran and Hadis in their language. The above statements make it clear that there is no material produced by the prosecution to prove that the applicants were engaged in tabligh work and they were involved in preaching religious ideology or making speeches in religious places. 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. From the material produced in the charge-sheet, except the statement of the witnesses referred above, there is no other material produced by the prosecution to prove ingredients of contravention of Section 14 of the Foreigners Act."
Needless to say, what came as a relief for the applicants is also what is stated in para 14 that, "To attract ingredients of Sections 269 and 270, the person must commit any act which he knows is likely to spread infection of any disease which is dangerous to life. It is not in dispute that the applicants had undergone Covid-19 test during their period of quarantine i.e. from 03.04.2020 and their test report for infection of Covid-19 was negative. It is also not disputed that they were kept in isolation from 24.03.2020 till 31.03.2020 under the supervision of Dr Khawaj, NMC Zonal Officer, Mominpura, Nagpur. 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."
Briefly stated, the key point that is stated in para 18 is that, "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. Therefore, in view of the bar under Section 195(1)(a) of the Code, the learned Magistrate ought not to have taken cognizance of the offence punishable under Section 188 Indian Penal Code on the report submitted by the Sub-Inspector of Police. Therefore, we are of the considered view that the cognizance is taken contrary to the specific bar envisaged under Section 195(1)(a) of the Code."
More to the point, it is then rightly held in para 20 that, "In that view of the matter, no prosecution could have been launched against the applicants under Section 188 of the Indian Penal Code based on a written report submitted by the Police. No FIR could have been registered by the police for an offence punishable under Section 188 of the Indian Penal Code. 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. 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."
Going ahead, it is then made clear in para 22 that, "In so far as an offence under Section 51 of the Disaster Management Act, 2005 is concerned, the material on record does not indicate that the applicants have failed to comply with the direction issued under said Act."
More damningly, it is then held in para 24 that, "Having considered the ambit and scope of Section 195(1) of the Code and the ratio laid down by the Supreme Court referred to hereinabove, we are of the opinion that the investigating authorities acted without jurisdiction in registering the F.I.R. under Section 188 of the Indian Penal Code based on a complaint of police. The investigation conducted by the police was also without jurisdiction."
Truth be told, what is equally damning is what is then further held in para 25 that, "Having regard to the facts involved in the present case and the ratio laid down by the Supreme Court in respect of the exercise of power under Section 482 of the Code in the decisions, noted above, 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."
Finally and far most significantly, it is then held in para 26 that, "In the backdrop of the exposition of the aforesaid position, 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. Compelling the applicants to undergo the trial would cause grave injustice. We, therefore, deem it appropriate to quash the F.I.R. bearing No. 178/2020 and charge-sheet bearing registration No. 6076/2020 before the Judicial Magistrate, First Class, Nagpur."
All said and done, the crux of this most significant ruling is that there is no material to prove that Tablighi Jamaat members indulged in any activity that are likely to spread Covid-19. We saw how earlier the Aurangabad High Court Bench of Bombay High Court too had quashed the FIRs filed against a total of 29 foreign nationals who too were booked under various provisions for allegedly violating their tourist visa conditions by attending the Tablighi Jamaat congregation at Nizamuddin in Delhi. While quashing the FIR, the Aurangabad Bench had observed that the Tablighi Jamaat members were made "scapegoats" and criticized the "big media propaganda" against them after noting that they were "virtually persecuted" with a campaign that they were responsible for spreading Covid-19 in India.
This only serves in painting a negative picture about condition of Muslims in India which must be avoided under any circumstances. The Tablighi Jamaat members never indulged in blocking of roads unlike we saw most unfortunately in Shaheen Bagh so how can Tablighi members be blamed for peacefully gathering in mosques? You tell me!
