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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]