In its 65-page judgment acquitting 36 Tablighi Jamaat members earlier this week, a Delhi court named five police personnel as well as the sub-divisional magistrate involved in the prosecution of the foreigners who were booked for allegedly flouting Covid regulations in March. While the police personnel named in the judgment refused to comment, the Delhi Police PRO said police are “exploring legal options to challenge the acquittal”.
Key observations made by Chief Metropolitan Magistrate Arun Kumar Garg:
# The main complainant in the case, inspector Mukesh Walia, the SHO of Hazrat Nizamuddin police station, had deposed regarding the identification of the accused at Markaz Nizamuddin during his visits between March 12 and April 1.
The court said Walia in his complaint and examination had stated that “the management of Markaz kept him as well as other authorities in the dark about the actual number of persons inside the Markaz till completion of the evacuation exercise”. However, “during his cross- examination he had tried to improve upon his case alleging that during 12 March to 31 March, he had visited inside the Markaz (covering all floors) almost on a daily basis and found the accused violating the guidelines,” the court noted.
The court said “his testimony has failed to pass the test of creditworthiness” as either the SHO was “aware of the actual number of persons gathered at Markaz since the beginning and still failed to take any timely measures” or “he was not so aware of the actual or even approximate numbers staying inside Markaz till the last day of evacuation exercise, (and) he in all probability is deposing falsely about his daily visits to Markaz”.
# On investigating officer, inspector Satish Kumar, the court stated that it was “beyond the comprehension of the court” how he identified 952 foreign nationals out of 2,343 persons “who, as per SHO, were found flouting the guidelines, without any test identification parade but on the basis of list provided by MHA (Ministry of Home Affairs)”.
# Sub-inspector Jagreet Singh of the PRO section was examined as a prosecution witness and deposed that prohibitory orders under section 144 CrPC were uploaded on the Delhi Police website. The prosecution case was that this order was brought to the notice of the accused, who disobeyed it. The court said Singh “has failed to depose that he had publicised the said order in press, radio or television.”
The court said, “In my considered opinion, mere uploading of order on Delhi Police website shall not have the effect of promulgation…”
# Head constable Hafizullah, the beat officer in the area, had deposed before the court that the SHO’s visit to Markaz was duly photographed and videographed. However, the SHO told the court he did not remember this. The court noted, “No such photographs and videography has been proved by the prosecution on record which would have been the best evidence to prove the presence of accused persons inside Markaz premises during the relevant period.”
# Constable Azad Singh of the Crime Branch which investigated the case had seized the register from the Markaz containing the list of foreigners, and produced it in court as evidence. However, the court said that mere exhibition of the register by him “shall not have the effect of proof of correctness of the contents of the said register”.
“Neither the author nor the person in whose presence the entries were made in the register of the names, state and passport numbers of the foreign nationals have been examined by the prosecution in its evidence to prove the correctness of the entries,” the court noted.
# Vinod Kumar Yadav, SDM Defence Colony, had deposed in court that he, along with the SHO and Hafizullah, had identified the accused at Markaz before their evacuation from March 30 to April 1.
The court said: “Had there been any truth in the story sought to be propounded by the prosecution that all the 36 accused facing trial before this court were seen at Markaz” by the three officials “and they were shifted to different quarantine centres/hospitals”, and they continued to stay at the same place till filing of chargesheets, then there was no occasion for seizure of passports from some of them from different masjids/shelters within the jurisdiction of Chandni Mahal police station on or before 15.05.2020.”
The court said there was a “contradiction in the case of the prosecution” after perusing the SDM’s testimony, and this rendered the plea of the accused probable that none of them were present at the Markaz and were “picked up from different places so as to maliciously prosecute them upon directions from the Ministry of Home Affairs”. The SDM did not respond to requests for a comment.
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