Sheltering people in mosque not a violation of Sec 144: Delhi High Court

Section 144 authorises the executive magistrate of any state or territory to issue an order to prohibit the assembly of four or more people in an area.

Merely sheltering individuals in a mosque without knowledge of orders prohibiting meetings, gatherings and processions does not amount to disobeying orders issued by public authorities, the Delhi High Court has held, while quashing 16 cases registered against 70 Indians for allegedly sheltering foreign attendees of the Tablighi Jamaat congregation during the 2020 Covid-19 lockdown.

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A bench of justice Neena Bansal Krishna gave the detailed ruling, released on Friday, while dealing with the pleas filed by the accused seeking quashing of the FIR’s registered by the Delhi Police.

“It is also significant to note that merely because they were living in a Markaz, did not amount to violation of any of the five activities, which were prescribed by the Notification under Section 144 Cr.P.C. They had assembled neither for any demonstration nor for any social, cultural, political, religious gatherings, organising weekly markets, or group tours. The Petitioners had done no activity of this kind after Notification under Section 144 Cr.P.C,” the verdict said.

Section 144 authorises the executive magistrate of any state or territory to issue an order to prohibit the assembly of four or more people in an area.

She added that “there is no evidence to show that the notification under Section 144 Cr.P.C. was promulgated and was within the knowledge of the Petitioners.”

“The essential ingredient of promulgation to constitute an offence under Section 188 IPC, has therefore, not even been established.”

Justice Krishna noted that the congregation was scheduled for early March before the outbreak of the pandemic, and the accused had neither gathered after the issuance of orders or violated the same after imposition of complete lockdown.

The judge observed that they were instead “helpless people” who got stuck on account of lockdown and there was no whisper in the entire charge sheet that they were found Covid-19 positive or had stepped out of the Markaz after prohibitory orders.

The Delhi Police had alleged that the accused had violated its March 24, 2020 prohibitory orders issued under Section 144 of CrPC in the wake of Covid-19 by sheltering foreign nationals.

In their plea, the accused had asserted that the mere act of housing in the mosque did not constitute the offence of disobeying the orders of public servants and there were no allegations against them for hosting or participating in social/cultural/religious gatherings, barred under Section 144.

“There is nothing on record to show that they had congregated after the promulgation of the Notification under Section 144 Cr.P.C. These Petitioners were already present in the Markaz and after the imposition of the complete lockdown, there was no way possible for them to have dispersed; rather their stepping out of the houses would have been violation of the complete lockdown and also of the potential of spreading of commutable disease of COVID-19. The congregation had not been subsequent to the Notification under Section 144 Cr.P.C. They were helpless people, who got confined on account of lockdown,” the court maintained.

The judge opined that the Delhi police had no evidence to prove the accused’s involvement in acts for spreading Covid-19. “No material on record to prove that they had indulged in any act which was likely to spread infection of COVID-19. No material was produced in the Chargesheet and no evidence was placed on record to substantiate the fulfilment of ingredients of Sections 269 and 270 IPC,” the court maintained.