Delhi court acquits 36 foreigners who attended Tablighi Jamaat meet

A Delhi court on Tuesday acquitted 36 foreigners, who were chargesheeted for attending the Tablighi Jamaat congregation at Nizamuddin markaz in defiance of the government

A Delhi court on Tuesday acquitted 36 foreigners, who were chargesheeted for attending the Tablighi Jamaat congregation at Nizamuddin markaz in defiance of the government guidelines issued in the wake of Covid-19 pandemic in the country, stating that the attendance register does not even prove that the accused arrived at the markaz on the dates mentioned against their names or that they were staying at the markaz till the end of March.

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It said that the prosecution has failed to prove the presence of any of the accused persons inside the markaz from March 12 to April 1, and there is no question of any violation. It said that no photographs and videos have been provided by the prosecution as evidence either.

Chief metropolitan magistrate Arun Kumar Garg acquitted the foreigners from 14 countries of all charges, stating that there is not even an iota of evidence to prove that the prohibitory orders issued by the ACP, Lajpat Nagar, were published—perusing which the people residing at the markaz could have known about the restrictions on gatherings.

The court said that the station house officer (SHO) of Nizamuddin police station was aware of the actual number of persons gathered at the markaz since beginning, yet failed to take any timely measures to ensure the dispersal of the gathering despite being aware of the government 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 government guidelines.

“In any case, 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 the accused at markaz during the relevant period,” the court stated in its order.

The judge also said that even though the original register was produced, however, neither the author nor the person in whose presence the entries were made in the register of the names, states and the passport numbers of the foreign nationals has been examined by the prosecution in its evidence to prove the correctness of the entries made.

“…a bare perusal of the register reflects that it has several columns however the column headings are not self-explanatory to ascertain the nature of information contained in each column. In the absence of appropriate column headings, it is difficult to ascertain as to whether the date against the registration number is the date of arrival of a particular person at markaz or date of registration/date of advance booking.

“Thus, mere exhibition of the register in evidence shall not have the effect of proof of correctness of the contents of the register. This is besides the fact that the contents of the register do not even otherwise prove that the accused arrived at markaz on the dates mentioned against their names or that they were staying at markaz till March 30-31,” the court said.

The court also said that mere uploading of the prohibitory order on the Delhi Police website shall not have the effect of promulgation. It also said that the prosecution has even failed to prove the disobedience of any of the directions contained in the order by any of the accused.

“In the case in hand, the prosecution has failed to lead any evidence of promulgation of the order under section 144 CrPC 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 said.

On August 24, the court had framed charges against the foreigners under Sections 188 (disobedience to order duly promulgated by public servant), 269 (negligent act likely to spread infection of disease dangerous to life) of the Indian Penal Code and Section 3 (disobeying regulation) of Epidemic Act, 1897.

The charges were also framed under Section 51 (obstruction) Disaster Management Act, 2005.

However, the accused were discharged for offences under Section 14 (1) (b) (violation of visa norms) of Foreigners Act, sections 270 (malignant act likely to spread infection of disease dangerous to life) and 271 (disobedience to quarantine rule) of IPC.

The judge also said that the prosecution has failed to prove the charge u/s 188 IPC against the accused, as there is “no iota of evidence” for the first two prerequisites of promulgation and actual knowledge of the prohibitory order.

It said that both the witnesses who were examined were “conspicuously silent” on the mode of the promulgation of the prohibitory orders under Section 144 of the CrPC while stating that they were not publicised in press, radio or television.

“No copy of any newspaper, audio/video clip containing the contents of the order for publication on radio or television has been put on record,” the judge said….The entire examination in chief of both the witnesses is conspicuously silent about the mode and manner of promulgation of order u/s 144 CrP.C. by the ACP Lajpat Nagar,” the judge said.

The court said that the witness (Inspector Mukesh Walia, PS-HN Din, New Delhi) had taken a stand that he kept apprising the markaz management about the government guidelines and preventive measures required to be taken during Covid-19. However, even in the communication sent to the management on March 28, there was no mention about the prohibitory notice restricting the gathering of people.

The judge also said that handwritten lists of evacuees or list of persons allegedly shifted to different hospitals/quarantine centres were prepared by the medical teams at the time of screening of the persons at the gate of markaz during March 25 to April 1. However, the lists have not been produced either along with the charge sheets or anytime during the prosecution evidence.

The court also rejected the submission of the police that they had identified the accused and Inspector Walia had seen one of the accused at the markaz during his visits there between March 12 and April 4. It said that a perusal of the passports reflects that some of the accused were allegedly seized prior to May 15 from different masjids/shelters situated within the jurisdiction of PS Chandni Mahal even though as per the charge sheet, the accused were at hospitals/quarantine centres.

It said that the contradiction in the case renders the plea raised by the accused persons in their defence where they had stated that none of them was present at the markaz during the relevant period and they had been picked up from different places so as to maliciously prosecute them upon directions from the Ministry of Home Affairs, Govt. of India.

The foreigners were chargesheeted for attending the Tablighi Jamaat congregation at Nizamuddin markaz area allegedly in violation of visa norms, indulging in missionary activities illegally and violating government guidelines issued in the wake of Covid-19 outbreak.