Case BriefsHigh Courts

Bombay High Court: M.G. Sewlikar, J., in reference to the judgment pronounced by this Court on 21-08-2020, with regard to the quashing of FIRs again foreign nationals who indulged in Tablighi Jamaat, stated that it agreed with the operative part of the Judgment but does not agree with some reasoning and the reasons has been given now.

In the present order, M.G. Sewilkar, J., lays down the reasons that were reserved.

Bench states that the material on record does not show that the foreign nationals were infected with COVID-19 when they landed in India, neither there is any material of visa conditions being violated.

Further, it adds that,

“Continuation of prosecution against the petitioners in these circumstances would be an abuse of process of Court.”

Therefore, M.G. Sewlikar, J. accepted the reasons laid down in the earlier Judgment except for the following observations:

“35) There were protests by taking processionse holding Dharana at many places in India from atleast from prior to January 2020. Most of the persons participated in protest were Muslims. It is their contention that Citizenship Amendment Acte 2019 is discriminatory against the Muslims. They believe that Indian Citizenship will not be granted to Muslim refugees and migrants. They were protesting against National Registration of Citizenship (NRC). There were protests on large scale not only in Delhie but in the most of the States in India. It can be said that due to the present action taken fear was created in the minds of those Muslims. This action indirectly gave warning to Indian Muslims that action in any form and for any thing can be taken against Muslims. It was indicated that even for keeping contact with Muslims of other countriese action will be taken against them. Thuse there is smell of malice to the action taken against these foreigners and Muslim for their alleged activities. The circumstances like malice is important consideration when relief is claimed of quashing of F.I.R. and the case itself.”

Hence, he opined that the above-stated observations are outside the scope of the petitions and quashed the FIRs and Chargesheets. [Konan Kodio Ganstone v. State of Maharashtra,  2020 SCC OnLine Bom 877, decided on 27-08-2020]


Also Read:

Bom HC “smells malice” in State action against Tablighi Jamaat foreign nationals; Quashes all FIRs; Makes scathing observations against “media propaganda”  

Case BriefsHigh Courts

Bombay High Court: A Division Bench of T.V. Nalawade and M.G. Sewlikar, JJ. has quashed all FIRs filed against the foreign nationals who indulged in Tablighi Jamat. Justice Nalawade pronounced the Judgment authored by him, in which certain scathing observations were made which are quoted verbatim:

“There was big propaganda in print media and electronic media against the foreigners who had come to Markaz Delhi and an attempt was made to create a picture that these foreigners were responsible for spreading the Covid-19 virus in India. There was virtually persecution against these foreigners. A political Government tries to find the scapegoat when there is pandemic or calamity and the circumstances show that there is a probability that these foreigners were chosen to make them scapegoats. The aforesaid circumstances and the latest figures of infection in India show that such action against present petitioners should not have been taken. It is now high time for the concerned to repent about this action taken against the foreigners and to take some positive steps to repair the damage done by such action.”

Interestingly, however, it is to be noted that the brief of the Judgment which follows is based on the observations and reasoning of Justice Nalawade only. As Justice Sewlikar has agreed only with the operative part of the Judgment but has “disagreed with some reasoning”. It has been stated that the reasoned Judgement of Justice Sewlikar will follow.

Also, after the Judgment was pronounced, M.M. Nerilkar, APP, requested the Court to put a stay on the order. This request was, however, not acceded to by the Court.

Case against the petitioners

The prosecution case was that the petitioners-foreign nationals had come to Ahmednagar in groups with some Indian nationals and they had visited many places, they were living in masjids (mosques) during their stay. On 14-3-2020, Covid-19 lockdown was declared by the Maharashtra State Government and by the notification dated 23-3-2020 direction was given to close the religious places. Powers were given to District Authorities by the Government to exercise powers under the Epidemic Diseases Act, 1897. By exercising these powers, District Magistrate had issued prohibitory orders and directions were given to close all public places. In spite of prohibitory orders and conditions of visa, the petitioners indulged in Tablighi activity. Announcements were made at public places to ask the persons who had attended Markaz Masjid to come forward voluntarily for testing them in respect of Covid-19 virus, but they did not come forward voluntarily and they had created threat of spreading Covid-19 virus. It was necessary for them to give necessary information to the local authority in Form ‘C’, but they had given incorrect addresses in Form ‘C’ and they were actually living in Masjids. Visa conditions prohibited Tablighi work by foreign national tourists. Therefore, charge-sheets were filed against the petitioners under Sections 188, 269, 270 and 290 of the Penal Code and various provisions of the Maharashtra Police Act, 1951; the Epidemic Diseases Act, 1897; and the Disaster Management Act, 2005.

It is noticed that people are afraid of test taken for detection of virus. That is why the infected persons are brought very late to the hospitals and they die. In the present matter, it is not the case of the State that the petitioners were hiding in Masjid or other place in Ahmednagar to avoid the test.

Petitioners’ case

It is the contention of the petitioners, who are mainly foreign nationals, that they came to India on a valid visa issued by the Government of India and they have come to experience Indian culture, tradition, hospitality and Indian food. On their arrival at the airport, they were screened and tested for Covid-19 virus and only when they were found negative for virus, they were allowed to leave the airport. They were visiting various places of India and particularly Ahmednagar to observe the religious practices of Muslims. After their arrival in Ahmednagar district, they had informed to District Superintendent of Police about their arrival and that was done much prior to the date of registration of the crime against them. Due to the lockdown, the vehicular moment was stopped and the persons were not allowed to leave the residential places to prevent the spreading of Covid-19. The masjid had given shelter to them as due to lockdown order, hotels and lodges were closed. Some order was issued by the Collector, but that was not actually prohibitory order and they were not involved in illegal activity including the breach of order of District Collector. Even at Markaz, they had observed norms of physical distancing. While granting visa, they were not asked to inform local authorities about their visit to those places, but they had informed local officers. Under the conditions of visa, there was no prohibition to visit religious places like masjids and there was prohibition to visit containment areas and the connected areas with regard to defence matter. They were not involved in a breach of orders or in propagating Muslim religion.

In view of the Articles of Indian Constitution like Articles 25 and 21, when visa is granted to foreigners, such foreigners cannot be prevented from visiting masjids, if they go there to observe religious practices or to offer only namaz.

What is Tablighi Jamat

As noted by the Court, Tablighi Jamat movement was founded by Maulana Mohammad Iliyas in 1927 in Delhi and this movement is popular in villages and peasants. This movement is focused on religion rather than political aspects of Islam and this movement spread throughout Muslim world from 1950 onwards. Muslims from all over the word come to India as they are attracted to the reform movement of Tablighi Jamat and they visit Markaz Masjid from Delhi. It is a continuous process and it appears that there are arrangements of the stay also made by the Muslims at Markaz Delhi. Considering the dates of arrival of the petitioners to India and their departure from Delhi also shows that there was no particular day fixed for the congregation or any function. Initially, the Court thought that for some function arranged by Tablighi Jamat at Markaz, the foreigners had come, but the record shows that there was no function and it is a continuous activity. From so many years Muslims from various countries have been coming to India to visit that place and they have been coming on a tourist visa. The visits of these foreigners to masjids from India were not prohibited and even discourse was not prohibited. The activity of Tablighi Jamat got stalled only after declaration of lockdown in Delhi and till then it was going on. There is nothing on the record to show that this activity is prohibited permanently by the Government. These things needs to be kept in mind while considering the cases filed against the petitioners.

There is nothing on the record to show that the Indians were prevented from accommodating persons in the Masjid or from supplying meals to the persons including the foreigners. The statements of the witnesses recorded by police are stereotype and it can be said that word to word, line to line and para to para of the statements are copied.

Court’s opinion and decision

The main thrust of the prosecution was on breach of so-called conditions of the visa. The other main contention was in respect of breach of orders issued by the authorities created under the Disaster Management Act, 2005 and the orders issued under Epidemic Diseases Act, 1897.

(i) On violation of Visa Conditions

If there is breach of visa conditions, it can be said that offence under Section 14(b) of the Foreigners Act is committed by the foreigners. To make out this offence, it needs to be shown that there was some visa condition in existence at relevant time and the foreigners have acted in breach of that condition.

Perusing the latest updated Visa Manual, the High Court noted that “there is no restriction on foreigners for visiting religious places and attending normal religious activities like attending religious discourses”.

Discussing the evolution of Tablighi Jamat and the meaning of “discourse”, the Court observed:

Every religion has evolved over the years due to reformation as reformation is always necessary due to the changes in the society and the development achieved in the material world. In any case, even from the record, it cannot be inferred that the foreigners were spreading Islam religion by converting persons of other religion to Islam.

The Court also noted that the record showed that the foreigners were not talking Indian languages like Hindi or Urdu and they were talking languages like Arabic, French, etc. It was concluded that it can be said that the foreigners may have the intention to know the ideas of Tablighi Jamat about the reformation. It was stated that unless a particular programme of a foreigner or idea of such foreigner or doctrine or set of principles proposed by him do not create unrest in religion or society, one cannot prevent the foreigner from expressing his ideas about reformation. There is no such specifc allegation also against the foreigners. Nothing is said as to which ideas the foreigners were propagating.

The record shows that there is allegation that they were reading Quran and religious books of Muslims and delivering lectures to Muslims in Masjid. The allegations are very vague in nature and from these allegations inference is not possible at any stage that they were spreading Islam religion and there was intention of conversion. It is also not the case that there was element of persuasion on any point from these foreigners.

Having noted that freedoms under Article 19 are not available to foreigners, the Court stated that it needs to be kept in mind that when the permission is given to the foreigners to come to India under visa, at least Article 25 comes in to play. Then there are Articles 20 and 21 which are also available to foreigners.

Record shows that it was not made known to the holders of visa that they were prohibited from visiting Masjids or staying in Masjid. On the contrary, in the past and in updated guidelines instructions were issued to the effect that they were allowed to visit the religious places.

Considering the schedule of petitioners’ arrival in India and the dates when they were taken in custody, the Court said that there is more possibility that they got infected in India and they were not already infected when they arrived in India. Further, admittedly screening at the airport was done of these petitioners before allowing them to leave the airport. The Court reiterated that criminal cases cannot be tried on suspicion.

“Reformation is continuous process in every religion and such process is necessary for peaceful co-existence. Unless a particular programme of such foreigner or idea of such foreigner or doctrine or set of principles proposed by him do not create unrest in that religion or society, one cannot prevent the foreigner from expressing his ideas about reformation”

Noting India’s culture and tradition of “Atithi Devo Bhav” which means that our guest is our God, the Court said that the circumstances of the present matter create a question as to whether we are really acting as per our great tradition and culture. During the situation created by the Covid-19 pandemic, we need to show more tolerance and we need to be more sensitive towards our guests particularly like the present petitioners. The allegations made show that instead of helping them we lodged them in jails by making allegations that they are responsible for violation of travel documents, they are responsible for spreading of virus, etc.

Finally, noting provisions of the Constitution, the Court concluded:

“Article 20 of the Constitution of India shows that the acts which were not prohibited at the time when they were committed cannot be treated as offence and violation of law subsequently. In view of the record which is already discussed, it was not possible to go with the presumption that there was a violation of visa conditions.”

In such circumstances, the Court held that the material was not sufficient to make out prima facie case for the offence punishable under Section 14(b) of the Foreigners Act.

(ii) On “Smell of Malice”

Discussing what must have tempted the authorities to issue such directions against the foreigners like the petitioners,  the Court noted that the action of Central Government was taken mainly against Muslim persons who had come to Markaz Delhi for Tablighi Jamat. Similar action was not taken against other foreigners belonging to other religions. Due to these circumstances, the background of the action and what is achieved needed to be considered by the Court. IT was observed:

“There were protests by taking processions, holding dharana at many places in India from atleast prior to January 2020. Most of the persons participated in protest were Muslims. It is their contention that the Citizenship Amendment Act, 2019 is discriminatory against the Muslims. They believe that Indian citizenship will not be granted to Muslim refugees and migrants. They were protesting against National Registration of Citizenship (NRC). There were protests on large scale not only in Delhi, but in most of the States in India. It can be said that due to the present action taken fear was created in the minds of those Muslims. This action indirectly gave warning to Indian Muslims that action in any form and for anything can be taken against Muslims. It was indicated that even for keeping contact with Muslims of other countries, action will be taken against them. Thus, there is smell of malice to the action taken against these foreigners and Muslim for their alleged activities. The circumstances like malice is an important consideration when relief is claimed of quashing of FIR and the case itself.”

  (iii) On violation of District Authority’s orders

Perusing the record and discussing the alleged offences against the petitioner, the Court was not inclined to accept that there was any violation of the order passed by District Authorities. The Court went on to observe:

“It is a fact that many foreigners of other countries are sent back by the Central Government without making any inquiry. Social and religious tolerance is a practical necessity for unity and integrity in India and that is also made compulsory by our Constitution. Through hard work over the past years after independence, we have reconciled religion and modernity to a great extent. This approach helps participation of most in developing process. We have been respecting both religious and secular sensibilities since independence and by this approach, we have kept India as united.”

The Court concluded that Maharashtra police acted mechanically. It appears that the State Government acted under political compulsion and police also did not dare to exercise powers given to them under provisions of procedural law like CrPC and substantive laws. The record shows that there was non-application of mind by police and that is why even when no record was available to make out prima facie case, charge sheets are filed by police.

Therefore, it was held that it will be abuse of process of law if the petitioners are directed to face the trial in aforesaid cases. As a result, all FIRs filed against the petitioners were quashed by the Court.

[Konan Kodio Ganstone v. State of Maharashtra, 2020 SCC OnLine Bom 869, decided on 21-08-2020]

Case BriefsHigh Courts

Bombay High Court: A Division Bench of Ujjal Bhuyan and Riyaz I. Chagla, JJ. while observing the matter in regard to quashing of FIR against Republic TV’s Editor-in-Chief, Arnab Goswami, Court held that,

“Seventy years into our republic we cannot be seen to be skating on thin ice so much so that mere mention of a place of worship will lead to animosity or hatred amongst religious communities causing upheaval and conflagration on the streets.”

Present petition was filed to seek stay on all the proceedings in FIR filed against Arnab Goswami/ petitioner and no coercive action/steps to be taken by respondents 1, 5 and 6.

Background

Following the broadcasts on Republic TV dated 16-4-2020 and on R Bharat dated 21-4-2020, multiple FIR’s and criminal complaints were lodged against the petitioner — Arnab Goswami, Editor-in-Chief of Republic TV and the Managing Director of ARG Outlier Media Asia net News Private Limited which owns and operates R Bharat.

The broadcasts were in regard to an incident that occurred in Palghar District of Maharashtra wherein 3 persons including 2 sadhus were brutally killed by mob, allegedly in the presence of police and forest guard personnel. In the said broadcasts, petitioner had raised issues with regard to the tardy investigation of the incident.

Petitioner claimed that the Indian National Congress had after the said broadcast launched a “well coordinated, widespread, vindictive and malicious campaign” against him.

The said campaign by the INC was carried out through various news reports, tweets and multiple complaints against the petitioner seeking investigation into offences alleged to have been committed by him under Sections 153, 153-A, 153-B, 295-A, 500, 504, 506 and 120-B of the Penal Code, 1860. Campaign on social media using the hashtag — #ArrestAntiIndiaArnab was also doing rounds.

To affirm his claim, the petitioner also stated that the FIRs and complaints were lodged in the State where the Governments were formed owing allegiance to the INC.

Petitioner refused any propagation of communal views being broadcasted by him on the news channel that gave rise to the numerous complaints. Asserting his fundamental right to the Freedom of Speech and Expression under Article 19(1)(a) of the Constitution of India, the petitioner approached the Court seeking protection.

Another petition was filed which was occasioned by registration of an FIR against the petitioner on 2nd May 2020 wherein it was stated that the petitioner had on 29th April 2020 made certain statements on his broadcast on R Bharat that “people belonging to Muslim religion are responsible for COVID-19 spread.”

Petitioner had moved the Supreme Court under Article 32 of the Constitution of India for quashing the FIR.

Supreme Court had issued the following directions in it’s Order:

  • Prayer to transfer the investigation to CBI is rejected.
  • Protection against coercive action granted to Arnab Goswami to continue for a period of 3 weeks to enable him to pursue remedies available in law.
  • FIR which has now been numbered as 164 of 2020 shall be investigated by the NM Joshi Marg Police Station in Mumbai.
  • Prayer for quashing FIR No. 164 of 2020 under Article 32 rejected.
  • The FIR does not cover the offence of defamation under Section 499 IPC, hence will not form subject matter of the investigation.
  • All FIRs except FIR No. 164 of 2020 at NM Joshi Police Station are quashed.
  • No other FIR or, as the case may be, complaint shall be initiated or pursued in any other forum in respect of the same cause of action emanating from the broadcast on 21 April 2020 by the petitioner on R Bharat.
  • Based on the threat perception, CP (Mumbai) may provide police protection to Arnab Goswami if it is considered appropriate and for the period during which the threat perception continues.
  • Nothing in the present judgment to be considered as an expression on merits of the allegations in the FIRs.

Thereafter the present petition has been filed seeking certain reliefs.

Decision and Analysis

Bench firstly adverted to the Supreme Court’s decision in the present matter on 19th may, 2020, wherein the core issue was the lodging of multiple FIRs and complaints against the petitioner in various states arising from the same cause of action.

Supreme Court had stated that the manner in which the petitioner was subjected to numerous FIRs in several states besides the UT of J&K on the basis of identical allegations arising out of the same television show would leave no manner of doubt that its intervention was necessary to protect the rights of the petitioner as a citizen and as a journalist to a fair treatment.

In such a situation to require the petitioner to approach the jurisdictional High Courts for quashing of the FIRs would result in a multiplicity of proceedings and unnecessary harassment to the petitioner.

It was categorically held that all other FIRs in respect of the same incident constitute a clear abuse of the process and must be quashed.

Accordingly, all the other FIRs numbering 14 were quashed, further making it clear that no other FIR or complaint shall be initiated or pursued in any other forum in respect of the same cause of action.

Supreme Court did not express any opinion on the two impugned FIRs and that is how the challenge to the 2 FIRs has been placed before the High Court.

In the Supreme Court decision of State of Karnataka v. Muniswamy, (1977) 2 SCC 699, following was observed:

“…saving of the High Court’s inherent powers is designed to achieve a salutary public purpose; in a criminal case the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice.”

Complaint has to be read as a whole. If it appears that on consideration of the allegations in the light of the statement made on oath of the complainant that the ingredients of the offence or offences are disclosed and there is no material to show that the complaint is mala fide, frivolous or vexatious, in that event there would be no justification for interference by the High Court.

Common thread alluded to the Sections that have been mentioned in the FIRs are with regard to promoting or attempting to promote disharmony or feelings of enmity, hatred or ill-will between different religious groups or communities etc.

Decoding the FIRs

According to the informant, petitioner had made a statement like two Hindu Sadhus were killed and asked whether in a country where 80% of the population are Hindus, is it a sin to be a Hindu or to wear saffron.

In contradistinction he asked whether Sonia Gandhi and the Congress party would have kept quiet if a Maulvi or Padri was killed. Then petitioner launched an attack on the foreign origin of Sonia Gandhi; asking whether “these people” thought that Hindus will keep quiet.

It is quite clear from the above stated that the target of the petitioner’s attack was primarily Sonia Gandhi and the Congress Party.

There was no mentioning of either the Muslim community or the Christian community. It would be too far- fetched to say that two religious communities were involved in the debate. As a matter of fact, there was no reference to the Muslim community or to the Christian community.

In Court’s opinion, if the transcript together with the first information are read as a whole, it was not found that any statement made by the petitioner which can be construed to be against the Muslim community or Christian community.

In such circumstances, it cannot be said that any offence has been committed by the petitioner of provoking rioting or promoting or attempting to promote, on the grounds of religion, disharmony or feelings of enmity, hatred or ill-will between different religious groups which is prejudicial to the maintenance of harmony between different religious groups or which disturbs or is likely to disturb public tranquility, thus prejudicial to national integrity.

Neither any statement nor the conduct of the petitioner can be said to have been made deliberately and with malicious intention to outrage the religious feelings of any class of citizens of India or insulting any religion or religious beliefs of that class of citizens.

On an overall consideration, Court’s prima facie view was that the FIR No. 164 of 2020 did not make out commission of any criminal offence by the petitioner.

FIR No. 137 of 2020

Contents of this FIR were made by the officer in charge of Pydhonie Police Station, that petitioner had hatched criminal conspiracy in the programme of R. Bharat connecting Jama Masjid, Bandra with the crowd gathered near Bandra railway station thus making objectionable statements and hurting the religious feelings of the Muslim community; petitioner created religious hatred between two communities and increased enmity between them by insulting Muslim religion and their religious feelings; with the objective of committing communal atrocity, petitioner defamed the Muslim community.

According to the informant, petitioner had stated that at a little distance there was Jama Masjid in Bandra; near this Jama Masjid suddenly thousands of people had gathered. Then petitioner posed the question as to who had gathered the crowd near the masjid in Bandra and why every crowd gathering during the lockdown was near a masjid.

Petitioner tried to create the impression that Muslim community is violent and is not following any kind of law. Thus it was alleged that petitioner had hatched a conspiracy with the objective of creating hatred amongst Hindu and Muslim communities.

Court in the above-mentioned regard stated that it would be wrong to say that petitioner had made the statements in the broadcast with a view to defame or insult the feelings of any religious group or community. The tenor of the programme was petitioner trying to find out as to who were the people or which were the forces trying to derail or defeat the lockdown and encouraging violation of social distancing norms.

Bench referred to the Supreme Court’ observations that,

India’s freedoms will rest safe as long as journalists can speak to power without being chilled by a threat of reprisal; free citizens cannot exist when the news media is chained to adhere to one position.

We cannot have the spectacle of a Damocles’ sword hanging over the head of a journalist while conducting a public debate.

Beyond the above observations and analysis, Court did not comment further on the matter and passed the following orders:

  • Petition is admitted for hearing;
  • Issuance of notice stands obviated. However, office of the Attorney General for India be notified as regards challenge to vires of Sections 153A and 153B(1) IPC.
  • All further proceedings in FIR No.164 of 2020 before the N. M. Joshi Marg Police Station, Mumbai and FIR No.137 of 2020 before the Pydhonie Police Station, Mumbai shall remain suspended
  • Interim order passed on 9th June, 2020 to the effect that no coercive steps shall be taken against the petitioner vis-a-vis the above 2 FIRs shall continue till disposal of the petition. [Arnab Ranjan Goswami v. State of Maharashtra, 2020 SCC OnLine Bom 732  , decided on 30-06-2020]

Also Read:

SC | FIR against Arnab Goswami not to cover offence of defamation (S. 499 IPC); Investigation to continue at NM Joshi Marg Police Station under Mumbai Police