New Delhi: Booked for letting 12 foreign women Tablighi Jamaat members stay in their homes during the lockdown, four Delhi residents approached the High Court earlier this month to quash the FIRs registered against them, terming the cases as “unwarranted, concocted and untenable in law”.
Rizwan, Abdul Wahid, Mohammad Nosad and Feroze, through their lawyer Ashima Mandla, have contended their cases are “classic examples wherein unsubstantiated allegations have been embellished and exaggerated”.
While Rizwan and Feroze have filed individual petitions, Nosad and Wahid have moved the Delhi HC jointly, as they are co-owners of the same property. ThePrint has accessed copies of all the petitions.
All of them are residents of Old Delhi and gave shelter to women Tablighis, who came to India to attend the event at the Jamaat headquarters in Nizamuddin in March 2020.
Speaking with ThePrint, Mandla said the four had allowed the women to reside in their residences because their faith disallows ‘pardanashin’ women (who wear a veil) to be lodged in masjids. They were with the petitioners even before the lockdown was imposed on 24 March 2020 to curb the spread of Covid-19.
The case, they contended, disregards ‘Right to Shelter’ as being a fundamental right enshrined in the Constitution, especially in unprecedented times and force of circumstances.
According to the FIRs registered at the Chandni Mahal police station, the four have been booked under IPC sections 188, 269, 270 and 120B.
Section 188 is punishment for someone who disobeys an order promulgated by a public servant, while Section 269 makes a negligent and unlawful act that is likely to spread infection of any dangerous disease an offence punishable upto six months of imprisonment.
Under Section 270, a person can be sentenced to two years of jail if it is found that he or she “malignantly” did an act that is likely to spread infection of a dangerous disease.
Invocation of Section 120B means that the four accused were part of a larger criminal conspiracy to spread Covid-19 that was declared a pandemic.
According to the police, the four had violated a police order issued under section 144 of the Criminal Procedure Code on 24 March 2020, prohibiting any religious, cultural, social or political activity.
The HC issued a notice to Delhi Police in the first week of February, following the submission of the petitions. The Delhi Police, in their response on 15 February, accessed by ThePrint, reiterated the charges against the four.
A bench of Justice Suresh Kait will now hear the matter on 8 March.
‘Could not have thrown them out of the house’
On 31 March 2020, an FIR was registered against those who had organised the congregation at the Nizamuddin headquarters in Delhi.
More than 950 foreign nationals, who attended the event, were charged with violating government guidelines on the lockdown.
While most of them pleaded guilty and left India after paying a fine, 44 foreign nationals stayed back to contest the charges. All of them now stand either discharged or acquitted.
Feroze, one of the petitioners before the HC, told ThePrint that the four women Jamaat members were staying in his house had come much before the lockdown was announced.
However, on learning that a case was filed against the markaz (headquarter) organisers as well as participants, he went to the local police station to inform them about his “guests”.
“We could not have thrown them out of the house as they were our guests. So, we thought of bringing it to the notice of the police, thinking they might want to carry out some paperwork regarding their stay with us. We signed whatever documents they told us to. Since, strict lockdown conditions were in force, we could not enquire much into what formalities they did,” Feroze said.
It was on the police advice that he took the women to the police station one day, from where they were sent to the quarantine centre. A few days later, Feroze was taken by surprise when he was told about the case against him.
‘FIRs are legally unsustainable’
Feroze’s and others’ petitions before the HC questioned the logic behind the case.
According to the police, the four violated the police order, which, Mandala said, is a legally flawed argument.
“The order said there should be no religious, social, cultural or political gathering. In this case, none of the four petitioners organised any congregation in their homes. These women devotees were like their guests, who got stranded in India due to the lockdown,” Mandala explained.
In their petitions before the HC, the four have argued that they have been compelled to face the unwarranted charges, an infringement upon their personal liberty, which has been held to be most sacrosanct and highest in the scale of Constitutional values.
The FIRs nowhere mentioned that the four had organised any religious or social gathering in their houses, the petitions have submitted.
Rizwan told ThePrint that the FIRs are also silent on whether he or others had contracted Covid-19, an essential factor to maintain the charges under sections 269 and 270 of the IPC. “We have been criminalised only because of a narrative that was spread against us,” he said.
Mandla added the FIRs are legally unsustainable.
“Under sections 269 and 270, the person accused of spreading the infectious disease should have knowledge. But, in the prevailing circumstances, there is no documentation on record to indicate that the petitioners contracted Covid-19,” she said.
Mandla referred to the Foreigners Act that binds hotels to maintain a record of foreign guests who hire rooms on payment basis. Mosques or private houses would not fall in this category, exempting them from keeping such information, she explained.