'They Are Also Entitled To Equal Protection Of Law ', Allahabad HC Grants Bail to 6 Foreign Members of Tablighi Jamaat [Read Order]

These bail applicants were arrested under Section 188 I.P.C., Section 3 of Epidemic Disease Act, 1897, Section 12(3) of the Passport Act, 1967 and Sections 3(2) and Section 3 (3) Passports (Entry into India) Act, 1920 and Section 14/14-C of the Foreigners Act, 1946 and Section 51 of the Disaster Management Act, 2005.

The Bail granted to these six members is subject to the condition that they shall deposit an amount of Rs 11,000 each in C.M. Covid-19 Relief Fund and shall submit a receipt in this regard before the Court concerned. It is to be noted that the applicants before the court, were in Jail since 18.04.2020.

While granting the bail, the Court highlighted the fact that the applicants who have prayed for bail, even though are foreign nationals, cannot be deprived of their personal liberty except in procedure established by law and that they are also entitled to equal protection of law and equality before the law.

Court, in its order said,

"The law does not permit any differentiation between Indian nationals and foreign citizens in the matter relating to grant of bail. What is permissible while considering the facts and circumstances of each case, the Court can impose different conditions which may be necessary to ensure that the accused is made available for facing the trial and an application for bail cannot be rejected solely on the ground the applicants are foreign nationals."

Court also noted the fact that unless and until extreme circumstances are pointed out, it cannot be considered that the parameters for considering a bail application for a national or a foreigner would be on a different footing before the Court of law.

The case against the accused persons

According to the First Information Report, the Administration on 22.03.2020 had imposed Section 144 C.r.P.C. within the area of Lucknow Commissionarate. Information was received that in a Markaz Mosque situated at Lucknow, 6 foreign nationals who had entered India on a tourist Visa and they were being given shelter in the said mosque by its Manager namely Ali Hasan.

The fact also came into light that the aforesaid foreign nationals had attended the religious congregation at Nizamuddin in New Delhi and thereafter had come to Lucknow and without getting their medical examination done, they were residing in the said Markaz Mosque.

It is also alleged that the Manager of the Mosque had given shelter to these foreign nationals for the purposes of propagating and disseminating religious discourse and these persons have violated the norms and were staying at one place. It is also alleged that the local police/Administration was not informed regarding these 6 foreign nationals.

Later on, the applicants were medically examined and on 31.03.2020 and they were kept at the Lok Bandu Hospital under 14 day's quarantine under medical supervision. It is alleged that the applicants have deliberately violated the Government Orders and have worked against the provisions of law and for the aforesaid they have been accused of having committed an offence under the Sections as hereinabove mentioned.

Arguments in the Court

Counsel for the applicants, Sri Priyanshu Agarwal submitted before the court that the aforesaid applicants are valid passport holders and were granted valid Visa to arrive in the territory of India. The applicants arrived at New Delhi on different dates and thereafter all the applicants reached Lucknow on 13.03.2020.

It was categorically claimed by the counsel that the applicants had provided all the necessary details regarding their travel and stay within the territory of India including at Lucknow with the Foreigner Regional Registration Office, Lucknow (hereinafter referred to as FRRO), Lucknow which is under the Ministry of Home Affairs, Government of India.

It was also submitted that the applicants, as per their disclosed programmes, had already decided to stay in Lucknow for a period of 22 days. It is during this period that on 22.03.2020 initially a Janta Curfew was observed and thereafter the Government of India announced a National Lockdown due to which the movement of the applicants was completely restricted and they were confined to the place of their stay and could not more or travel out of Lucknow or even the Country and thus by circumstances, the applicants were confined.

He also informed the Court that they were kept in quarantine for 14 days and during this period they were tested thrice and on all the occasions, all the applicants tested negative for COVID-19 and thereafter they have been put in Jail on 18.04.2020.

Counsel for the State Shri J. S. Tomar submitted that the applicants came to the Country under a tourist Visa. He contended that a person who enters the territory of India under a tourist Visa is not entitled to participate or undertake any religious seminar or involve on self in any religious discourses.

He further contended that the applicants while being within the territory of India did not disclose that they attended the Markaz congregation at Nizamuddin in New Delhi and they failed to voluntarily come forward for testing for COVID-19 to contain the spread of the virus and they remained a threat to the society at large.

Finally, it was submitted that the applicants are foreign nationals and having no permanent abode in India, hence, if the applicants are enlarged on bail, it will be difficult to keep a track and chances of them absconding and not being available for trial looms large, thus, under the aforesaid circumstances, it would be appropriate that the applicants are not enlarged on bail, coupled with the fact that the investigation is still underway and the charge sheet has yet not been filed.

Court's Order

While answering the question as to whether in the facts and circumstances, the applicants are entitled to be granted bail; Court stressed on the importance of the right guaranteed to even a non-citizen under Article 21 of the Constitution of India.

Court in its order said,

"Article 21 is often termed as the heart and soul of the fundamental rights as enshrined in Part III of the Constitution. Needless to mention that Article 21 guarantees every man whether he be a citizen of the country or a foreigner that he shall not be deprived of his personal life and liberty except in accordance with the procedure established by law."

While stressing upon the importance of liberty, Court in its order observed,

"Liberty of a person ought not to be lightly dealt with, since deprivation of liberty has (an) immense impact on the mind of a person. Personal liberty in our country has been exalted to a high pedestal and is also important to any civilized society".

Court further observed that personal liberty can be curtailed only when it becomes imperative according to the peculiar facts and circumstances of the case and that too only in accordance with the procedure established by the law.

Court further said,

"Deprivation of liberty is considered a punishment unless it is requires to ensure that an accused person will stand trial when called upon. It would be quite contrary to the concept and idea of personal liberty as enshrined in our Constitution that any person should be punished in respect of any matter upon which he has yet not been convicted or that in any circumstances, he would not be deprived of his liberty only upon the belief that he may tamper with the evidence or a witness if he is granted the liberty, save in extraordinary circumstances. In our criminal jurisprudence, bail is the Rule and committal to the Jail is an exception. Speedy justice is also a fundamental right which has been recognized by the Apex Court flowing from Article 21 of the Constitution of India."

While relying upon the decision of the Apex Court in the case of Anil Kumar Yadav Vs. State (NCT of Delhi) and another , the Court observed that there are various factors which are to be kept in mind while considering the application for grant of bail; the nature of the seriousness of the offence, the stage of the investigation, severity of punishment, a reasonable possibility of the presence of the accused being secured at the trial, reasonable apprehension of the evidence being tampered or circumstances regarding the chance of the witness being influenced.

Considering the relevant circumstances, Court allowed all the six applicants to be released on bail on their furnishing a personal bond of Rs. 50,000/- each and one reliable solvent surety to the satisfaction of the Court concerned.

The applicants have also been disallowed to leave the country without prior written permission of the Court and they have been asked to furnish an undertaking to the said effect.