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Tablighi Jamaat- Possible That They Were Picked Up From Different Places & 'Maliciously Prosecuted': Delhi Court Acquits 36 Foreigners

Sparsh Upadhyay
16 Dec 2020 1:07 PM GMT
Tablighi Jamaat- Possible That They Were Picked Up From Different Places & Maliciously Prosecuted: Delhi Court Acquits 36 Foreigners
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"Prosecution failed to prove presence of the accused persons inside Markaz during 12.03.2020­ 01.04.2020": Saket Court

While observing that the plea raised by accused persons is "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, the Saket Court (Delhi) acquitted 36 foreigners facing trial for allegedly flouting COVID guidelines while participating in a Tablighi Jamaat...

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While observing that the plea raised by accused persons is "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, the Saket Court (Delhi) acquitted 36 foreigners facing trial for allegedly flouting COVID guidelines while participating in a Tablighi Jamaat event in Nizamuddin in March this year.

The Chief Metropolitan Magistrate, Arun Kumar Garg was hearing the accused who were charged with offences under Sections 188 and 269 IPC, Section 3 of the Epidemic Diseases Act, 1897 and Section 51 of the Disaster management Act, 2005.

The accused hailed from a number of countries, including the US, Russia, UK, France, Sudan, Tunisia, Sri Lanka, Tanzania, United Kingdom, Thailand, Kazakhstan and Indonesia.

Regarding the charge under S. 188 IPC

The prosecution alleged violation on the part of accused of order u/s 144 Cr.P.C. dated 24.03.2020 promulgated by ACP, Lajpat Nagar Sub­Division.

It was contended by the Counsel for the accused that the said order was never promulgated within the meaning of Section 188 IPC, nor the accused were aware of the same.

Importantly, the PRO was examined by the prosecution, wherein he deposed that he uploaded the order on the website of Delhi Police on 24.03.2020 itself; however, he failed to depose that he had publicized the said order in Press, Radio or Television.

No copy of any newspaper, audio/video clip containing contents of the order for publication on Radio or Television was proved on record during the trial.

What did the 24.03.2020 Order say?

As per clause 2 of the said order, all gatherings (religious or non­religious) were prohibited in the sub division Lajpat Nagar and as per clause 5 thereof, all individuals suspect or confirmed case of Covid­19 were directed to take measures for prevention/treatment by way of home isolation/institutional quarantine and were directed to follow directions of surveillance personnel

It was contended by the APP (appearing for the State) that all the accused were part of religious gathering at Markaz in violation of said guidelines and some of them were suspects i.e. having COVID-19 symptoms and some were found to be confirmed cases of COVID-19 upon testing and since they failed to resort to isolation or institutional quarantine, they had disobeyed the directions contained in order of ACP.

On the other hand, accused denied their presence at Markaz during the relevant period.

Court's Finding

The Court, in its order said,

"The prosecution has failed to lead any evidence of promulgation of the order u/s 144 Cr.P.C. by ACP, Lajpat Nagar in the sense that not even an iota of evidence about publication thereof so as to bring the same to the notice of persons staying in Markaz has been brought on record."

The Court also observed that mere uploading of the order on Delhi Police Website "shall not have the effect of promulgation."

Importantly, the Court also noted that the contents of the register produced by the Prosecution did not prove that the accused arrived at Markaz on the dates mentioned against their names or that they were staying at Markaz till 30.03.2020­31.03.2020.

Interestingly, as per the own submission of APP for State, the list couldn't be considered to be recording the correct facts at least qua symptoms.

Thus, the Court opined that it wouldn't be safe to treat the said lists as the evidence of presence of accused at Markaz during the relevant period.

Lastly, noting that the prosecution failed to prove the presence of any of the accused persons inside the Markaz during 12.03.2020­ 01.04.2020, the Court said,

"There is no question of any violation/disobedience by them of the order u/s 144 Cr.P.C. allegedly promulgated (though promulgation has also not been proved by prosecution) by ACP, Lajpat Nagar."

The testimony of SHO found unreliable

The SHO, Inspector Mukesh Walia deposed before the Court that the management of Markaz kept him, as well as other authorities in dark about the actual number of persons inside the Markaz till completion of the evacuation exercise.

However, contrary to his complaint and the examination in chief, during his cross-examination he stated that during 12.03.2020­31.03.2020, he had visited inside the Markaz (covering all floors), almost on daily basis and found the accused violating the guidelines.

To this, the Court said,

"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."

In any case, the Court said, his testimony has failed to pass the test of creditworthiness and hence identification by him of the accused persons in the court is not sufficient to discharge the onus of prosecution to prove the presence of accused at Markaz during the relevant period.

State's unusual argument before the Court

Additional PP for the State argued before the Court that given the extraordinary situation that prevailed during the relevant time to which the incident pertains, identification of the accused by the witnesses is not essential and the court can even convict the accused persons whose presence on the spot has even otherwise been duly established.

To this, the Court remarked,

"Not only the contemporaneous documents have not been placed on record by the prosecution but also the prosecution has failed to prove the documents as per law to establish the presence of the accused persons on the spot."

Court's finding related to other charges against them

Regarding the charge of Section 269 IPC, the Court noted that prosecution failed to prove the said charge firstly in view of the fact that presence of none of the accused inside the Markaz premises during 12.03.2020­01.04.2020 and secondly, as per the list of evacuees, none of the accused was having COVID­19 symptoms.

The Court further said,

"In the absence of which there is no question of any negligent act on the part of any of the accused which to their knowledge or belief was likely to spread infection."

Importantly, the Court remarked,

"Even if it is assumed for the sake of arguments that some of the accused are proved to have been found Covid­19 positive on different dates i.e. 01.04.2020, 09.04.2020 and 10.04.2020, in the absence of any symptoms at the time of their alleged stay at Markaz, they can't be said to have been indulged in commission of any negligent act likely to spread infection."

Lastly, the Court said that on account of failure of prosecution to prove the presence of accused inside Markaz premises during the relevant period, there was no question of violation of guidelines vide notification dated 16.03.2020 of Govt. of NCT of Delhi, restricting the gathering to a maximum of 50 persons and so "the charge under Section 51 of the Disaster Management Act, 2005 also falls to the ground."

It may be noted that these 36 foreigners were the last of the accused from abroad who were put on trial in the case.

According to court records, 952 foreigners were accused of breaking COVID violations by Delhi Police.

Over 900 of them had pleaded guilty as a part of a plea bargain as they did not want to stay back in India to face trial and wanted to be reunited with their families.

As per the report of The Indian Express, these 36 foreigners are among 44 foreigners who chose to stand trial on charges of violating visa rules and COVID regulations — eight were discharged in August by the court after it found that there was no "prima facie evidence" against them.

Advocates Ahmad khan, Fahim khan, Ashima Mandla and Mandakini Singh argued for the petitioners. 

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