Possible that cops picked up 36 Tablighi foreigners to ‘maliciously prosecute’ them — court

Tablighi Jamaat was at the centre of a row in March, with authorities alleging that the participants had defied prohibitory orders and had become human carriers of Covid.

Members of Tablighi Jamaat being transported to various hospitals from the Nizamuddin Markaz in New Delhi for screening (Representational image) | Photo: Suraj Singh Bisht | ThePrint

New Delhi: Acquitting 36 foreigners who were charge-sheeted for attending a Tablighi Jamaat congregation in Delhi earlier this year by allegedly disobeying the government’s Covid-19 guidelines, a Delhi court Tuesday noted that it was “reasonably probable” that the police had picked up the accused to “maliciously prosecute” them on the directions of the Ministry of Home Affairs (MHA).

The Tablighi Jamaat was at the centre of a massive controversy in March, with authorities alleging that the participants had defied prohibitory orders and had become human carriers of Covid as a result of the congregation at the Nizamuddin Markaz, also called Banglewadi Masjid in Delhi.

In his order, Chief Metropolitan Magistrate Arun Kumar Garg pointed out certain contradictions in the prosecution’s case, which he said render the plea raised by the accused in their defence “reasonably probable that none of them was present at Markaz during the relevant period and they had been picked up from different places so as to maliciously prosecute them upon directions from Ministry of home affairs, Govt. of India vide letters dated 28.03.2020 and 01.04.2020”.

On 28 March, the MHA had written to the states that around 2,000 Tablighi Jamaat members from Bangladesh, Indonesia, Malaysia and Thailand who entered India on tourist visas appeared to be “potential carriers”, and asked the states to “screen, quarantine” and deport them if possible.

All international flights were suspended on 23 March and the country was placed under a 21-day lockdown on 24 March to prevent the spread of the pandemic.

On 1 April, the MHA blacklisted 960 foreigners and cancelled their visas, alleging that their involvement in the Tablighi Jamaat event violated their visa conditions. The home minister’s office had asked the Delhi Police and police chiefs of other states, where these foreigners were currently living, to take legal action under the Foreigners Act and the Disaster Management Act.

“It is significant to note in this regard that the Bureau of Immigration, Ministry of Home Affairs, Govt. of India has directed all Commissioner(s) of Police and DGP(s) of states to prosecute 960 foreign nationals as per list attached with the letter for visa violations and under other relevant provisions of law,” the Delhi court has now noted.

The court further pointed out that the original complaint filed in the case only named eight  accused who were a part of the management committee of Markaz. However, after the MHA’s 1 April order, the investigating officer added 952 foreign nationals as accused.

“It is beyond comprehension of the court, as to how, IO (investigating officer) could have identified 952 foreign nationals out of 2343 persons, who as per SHO, were found flouting the guidelines, without any TIP (test identification parade), but on the basis of list provided by MHA, Govt. of India,” it noted.

The 36 accused had refused that they were even present at the Markaz or Banglewali mosque in the national capital’s Nizamuddin after the Covid guidelines were issued on 12 March and before their evacuation towards the end of March.

Pointing out that the complaints in the case were filed by the investigating officers themselves, the accused had alleged “malicious prosecution…at the instance of a particular political party since they are foreign nationals belonging to a particular community”, according to the judgment.

The court agreed with the contentions raised by the accused and acquitted all of them.

952 accused, 48 charge sheets

The FIR in the case was registered on 31 March on a complaint filed by Inspector Mukesh Walia, who is the SHO of HN Din police station in New Delhi.

It was filed under provisions of the Epidemic Diseases Act and the Disaster Management Act, along with Sections 188 (disobedience to an order duly promulgated by a public servant), 269 (negligent act likely to spread infection of disease danger­ous to life), 270 (malignant act likely to spread infection of disease dangerous to life), 271 (disobedience to quarantine rule) and 120B (criminal conspiracy) of the Indian Penal Code (IPC).

While initially only eight persons were named in the FIR, the investigation completed with the police filing as many as 48 charge sheets and 11 supplementary charge sheets with 952 foreign nationals from different countries as accused.

Along with the Disaster Management Act, Epidemic Diseases Act and IPC provisions, they were also accused under Section 14 (b) of the Foreigners Act for allegedly violating the conditions of a valid visa.

After the court took cognisance of the charge sheet, 908 accused chose to take a plea deal instead, pleading guilty. The remaining 44 decided to face trial instead.

On 24 August, the court framed charges against the foreigners under the Epidemic Diseases Act, the Disasters Management Act and Sections 188 and 269 of the IPC. They were, however, discharged for offences under the Foreigners Act, and Sections 270 and 271 of the IPC.

‘SHO either failed to take measures or lied in court’

In its judgment passed Tuesday, the court noted that Walia, who was examined as prosecution witness-1, had submitted that the management of Nizamuddin Markaz kept him as well as other authorities in dark about the actual number of persons inside the Markaz till the completion of the evacuation exercise.

It, however, pointed out that during his cross-examination, Walia “tried to improve upon his case”, submitting that he visited Markaz, covering all floors, almost on a daily basis and found the accused violating the guidelines.

The court inferred that “had it been so, SHO was aware of the actual number of persons gathered at Markaz since beginning and still he failed to take any timely measures to ensure dispersal of the said gatherings despite being aware of the Govt. guidelines”.

“Else, if he was not so aware of the actual or even approximate numbers staying inside Markaz till the last day of evacuation exercise, he in all probability is deposing falsely about his daily visits to Markaz and briefing of the people stranded therein with Govt. Guidelines,” it added.

The court therefore concluded that the SHO’s testimony had “failed to pass the test of creditworthiness” and therefore his identification of the accused was not enough as evidence.

‘Not even an iota of evidence’

The court also noted that passports of some of these accused were actually seized from different mosques or shelters within the jurisdiction of Chandni Mahal police station on or before 15 May. It said this would not have been the case “had there been any truth in the story sought to be propounded by the prosecution” that the 36 accused were seen at Markaz immediately before they were shifted to the quarantine centres or hospitals.

The prosecution had alleged violation of Section 188, by contending that the accused had not adhered to the order passed under Section 144 of the Code of Criminal Procedure on 24 March.

This order had prohibited all religious and non-religious gatherings in the Lajpat Nagar subdivision and directed everybody with a suspected or confirmed case of Covid­-19 to take measures for prevention/treatment through home isolation/institutional quarantine.

The court, however, noted that the accused were not aware of this order, “which in turn implies that the order was not duly promulgated”. It opined that promulgation of an order involves letting the people know about it.

It further pointed out that no evidence of newspapers or radio/television clipping publicising Section 144 order was produced before it.

“From the aforesaid discussion, it can be concluded that the prosecution has failed to prove the charge u/s 188 IPC against the accused persons in as much as not even an iota of evidence qua the first two pre­requisites of promulgation and actual knowledge of the order u/s 144 Cr.P.C. on the part of the accused has been led by the prosecution,” the court concluded.