Tablighi Jamaat Covid case: Living in markaz did not amount to violating government orders, says Delhi HC

Ruling that no offence is “even prima facie made out in the chargesheets”, the HC, in its July 17 order made public on Friday, has observed that the “continuation of these chargesheets would tantamount be abuse of the process and also is not in the interest of justice”.

Noting that the accused were rendered “helpless” with the announcement of a sudden lockdown, the court also observed that they had congregated before the issuance of prohibitory orders, and had not violated any of the conditions thereafter.

The court recorded that “merely because they were living in a Markaz, it did not amount to a violation” of the conditions of prohibitory orders.

Tearing into the Delhi Police’s and the prosecution’s allegations, Justice Neena Bansal Krishna recorded, “In the present case… there is not a whisper in the FIRs or the chargesheets that petitioners (accused) were found COVID-19 positive or they had moved out negligently or unlawfully with intent or knowledge to spread the disease of COVID-19, which was dangerous to human life.”

“There is not a whisper in the entire chargesheet that any of these petitioners… had stepped out of the Markaz after 24.03.2020 or that they were likely to spread COVID-19. Also, there is not a single averment of them not having rendered any assistance to the surveillance personnel,” the court further observed.

The accused were charged under IPC sections 188 (disobedience to an order duly promulgated by a public servant), 269, 270 (negligent, malignant act to spread infection of disease dangerous to life), 120B (criminal conspiracy), along with Section 3 of the Epidemic Diseases Act, 1897, and Sections 51 and 58 of the Disaster Management Act, 2005.

The FIRs were registered at the Chandni Mahal, Sarai Rohilla and Krishna Nagar police stations between March 31 and April 2, 2020. It had accused them of allegedly accommodating foreign nationals in mosques and their homes during the pandemic from March 24-30, 2020.

While seeking quashing of the criminal proceedings, the defence had asserted that “the allegations have been manufactured only to bring them within the four corners of criminal offence, even though they are patently false and unsubstantiated”.

It was pointed out that the congregation was scheduled well before the pandemic. Thereafter, they were left “remediless” with imposition of prohibitory orders under CrPC Section 144, a janta curfew banning movement of people on March 22, 2020, followed by a 21-day lockdown from March 25, 2020 — leaving them with no recourse but to continue staying inside the masjid, until taken into institutional quarantine.

The court also took into consideration that “all cases that were registered during the COVID-19 period” under similar provisions before various courts across the country “have ended either in acquittal or discharge of the accused persons”.

The Delhi Police’s Crime Branch initially registered an FIR under Section 3 of the Epidemic Diseases Act 1897, various IPC sections, along with provisions of the Disaster Management Act 2005, against seven Indians.

The Crime Branch then filed 48 chargesheets and 11 supplementary chargesheets, including under Section 14(b) of the Foreigners Act, 1946, against 955 foreign nationals, of whom 908 entered plea bargains before the magistrate court.

Eight of them were discharged in August 2020, and 36 others acquitted in December 2020. No action was taken against three others who were identified as foreign national juveniles.

The government began a crackdown on Tablighi members after an Indonesian man who had allegedly attended the gathering in Nizamuddin was detected with Covid in Telangana. Over 950 foreign nationals, including diplomats, were subsequently blacklisted and accused of contravening emergency rules.

In September 2021, the then Chief Justice of India N V Ramana, while hearing a batch of petitions against news channels for their presentation of news on the Tablighi meeting, had orally remarked: “The problem is everything in this country is shown with a communal angle by a section of the media… The country is going to get a bad name ultimately.”

‘Ingredients for the offences not made out’

While granting relief to the accused, the Delhi HC, in its order, dissected how the ingredients for the offences were not made out.

Here’s what it said:

-IPC Section 188

Noting that “it cannot be overlooked that with the imposition of the lockdown, w.e.f. 25.03.2020, the entire world came to standstill and no person was permitted to step out of the house,” and the nationwide lockdown also meant that the distribution of newspapers, handbills, etc. was also prevented, the court held that it cannot be said that prohibitory orders were duly “promulgated”.

“There is no averment whatsoever to show that any information was actually conveyed to the petitioners (regarding the prohibitory orders)… The essential ingredient of promulgation to constitute an offence under Section 188 IPC has, therefore, not even been established. Even if, entire prosecution case is admitted, no offence is made out under Section 188 IPC,” Justice Krishna held.

“The congregation had not been (held) subsequent to the notification under Section 144 CrPC. They were helpless people, confined on account of the lockdown… It is also significant to note that merely because they were living in a Markaz, it did not amount to a violation of any of the five activities which were prescribed by the notification under Section 144 CrPC… None of the activities prohibited under Section 144 CrPC had been undertaken by any of the petitioners after the date of its promulgation,” the court held.

-IPC Section 269, 270

Quashing these charges, the court observed that the prosecution produced no material on record to prove that the accused had indulged in any act which was likely to spread Covid. “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… Even if all the evidence as put forth in the chargesheet is admitted, no offence under Sections 269 and 270 IPC has even prima facie been made out…,” the court held.

-Section 3 of the Epidemic Diseases Act, 1897, and Section 51 of the Disaster Management Act, 2005

The court recorded, “… there is no averment of any government official being obstructed or there being any refusal to comply with any directions issued by the government. No offence under Section 51 of the Disaster Management Act, 2005, has therefore, been made out… There is no averment about which order taken out under the Disaster Management Act has been violated. It is not shown that there was any criminal act, whether under the Disaster Management Act or the Epidemic Diseases Act, committed by the petitioners. The FIRs under these two sections are also liable to be quashed.”