20 Foreign TJ members acquitted by Mumbai court for lack of evidence

There is no iota of evidence with the prosecution to show any contravention of orders by the accused persons, Court said.

Hyderabad: A Metropolitan Magistrate court in Andheri on Monday acquitted a total of 20 foreign nationals accused of spreading Corona virus and violating orders of lockdown by two police officers who were prosecution witnesses in the case as well.

The accused belonged to two different countries, ten of them are from Indonesia and the other ten are from Kyrgyz Republic. Thus, the Magistrate court passed two separate orders.

Magistrate RR Khan observed that the prosecution witnesses themselves admitted that they have not seen accused persons contravening any directions or order issued by authority.

Thus, there is no iota of evidence with the prosecution to show any contravention of orders by the accused persons, Court said.

The accused were facing trial for the offences under Section 37(3) of Bombay Police Act punishable under section 135 of Bombay Police Act.

On April 5, 2020, the informant PSI Durgesh Harishchandra Salunkhe lodged FIR against accused persons for various offences under Sections 188 (Disobedience to order duly promulgated by public servant), 269 (Negligent act likely to spread infection of disease danger­ous to life), 270 (Malignant act likely to spread infection of disease dangerous to life) of IPC along with Section 14 of Foreigners Act, Section 3 of the Epidemic Act and Section 51 of the Disaster Management Act.

According to the prosecution, on March 29, 2020, at about 10 am the informant alongwith his associates visited Noor Masjid, Jamat Khana, Gaondevi Dongar, Andheri (W), Mumbai and came to know that in said Masjid 10 foreigners belonging to Indonesia have arrived.

The informant inquired with them and obtained necessary information. During inquiry he found that their Passports and VISA are valid and they have come from Delhi Markaz on February 22, 2020.

The informant stated that the said persons visited various places and persons and spread the infection. He has further stated that they have violated the lockdown norms and infringed the orders of the Police Commissioner.

Strangely, the informant has given identical details for the other ten foreign nationals who are also accused in the case.

He stated that on the same day at 10 am, he along with his associates visited Tayyaba Masjid, in front of Andheri Subway and came to know that in said Masjid 10 foreigners of Kyrgyz Republic have arrived.

When the informant inquired with them and obtained necessary information, he found that their Passports and VISA are valid and they have come from Delhi Markaz on February 22, 2020.

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Upon receipt of complaint against all the accused, the officer-in-charge of DN Nagar Police Station has taken cognizance and registered above mentioned offences against accused persons.

The Investigating Officer PI Rajendra Vishwanath Rane initiated investigation and filed charge-sheet in Court on June 17, 2020 adding Sections 307(attempt to murder), 304(2) (punishment for culpable homicide not amounting to murder) of IPC alongwith above mentioned offences.

Thereafter, the accused were ordered to be released on a personal bond of Rs.25,000 each by the Sessions Court.

The Sessions Court discharged accused persons of the offences 307 and 304(2) of IPC and returned the case to the Magistrate Court for trial in accordance with law by order sated September 21, 2020. Then, a discharge application under section 239 of CrPC came to be filed before the Magistrate Court on September 25, 2020. The prosecution responded to the application on the same day with it’s say on the backside of application. On October 1, 2020, the application for discharge came to be turned down.

On October 7, 2020, the accused persons requested the Magistrate Court for framing of charge. As a sequel of order on discharge application and as per judicial ratio laid down by the Bombay High Court in HLA SHWE and Anr. Vs. State of Maharashtra, the charge for section 135 of Bombay Police Act came to be framed as no case for offences under sections 188, 269, 270 of IPC and Section 14 of Foreigners Act and section 51 of Disaster Management Act and section 3 of The Epidemic Act were made out. Accordingly, charge came to be framed and the accused abjured their guilt and claimed to be tried.

Senior Advocate Amin Solkar along with Advocate AN Shaikh appeared on behalf of the accused, whereas, Additional Public Prosecutor PS Sapkale appeared for the State.

After examining submissions by both parties, Magistrate Khan observed-

“Noticeably, the case of prosecution consists of only two witnesses as per charge-sheet. Accordingly, in order to prove the guilt of the accused, prosecution has examined its both witnesses. The evidence of PSI Durgesh Salunkhe and PI Rajendra Rane came to be recorded through video conferencing. I have recorded the statement of accused persons under section 313 of CrPC. They have denied the evidence put forth by the prosecution.”

Court noted that both the prosecution witnesses (IO and the informant) had only strengthened the case of the accused as the informant stated that he had not noticed accused persons violating the lock-down or curfew and the IO admitted that nobody is in harm or died due to the accused persons.

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“From the combined perusal of evidence of Police officials of prosecution, it is apparent that both of them have deposed that the accused have not committed violation of lock-down or curfew. Additionally, they have deposed that they neither entered into mosque and nor noticed accused contravening the lock-down norms. Ultimately, the prosecution witnesses themselves have clarified the position of accused persons.”

Moreover, Magistrate Khan observed that he accused persons are charged for the offence under section 37(3) r/w 135 of Bombay Police Act. Admittedly, accused persons are foreigners, therefore, they are not acquainted with the local language as well as law of the State.

The basic principle of infringement of section 37 of Bombay Police Act is based upon publicly promulgation of orders. It is transparent that the order in question was not promulgated to accused persons individually, Court noted.

Finally, acquitting the accused, the Magistrate Court recorded-

“The brief survey of prosecution evidence transpires that none of the examined witnesses have an occasion to see the accused persons together in the form of assembly. Per contra the prosecution witnesses admitted that they have not seen accused persons contravening any directions or order issued by authority. The said witnesses were also not found in position to tell where and how the accused person were residing at the time of alleged offence.

Thus there is no iota of evidence with prosecution to show any contravention of order by accused persons beyond all shadow of doubt. During imposition of lock down and their ultimate shelter in mosque or nearby will not render them responsible for such contravention. There is no legal evidence adduced by prosecution to show that accused persons infringed the notification lawfully made under section 37 of Bombay Police Act.

Hence by following the judicial ratios laid down by Bombay High Court in the cases of – Konan Kodio Ganstone and Anr Vs. State of Maharashtra and HLA SHWE & Anr. Vs. State of Maharashtra, and lack of evidence in support of charge, I am satisfied to answer my finding to point no.1 in negative and further satisfied to acquit the accused persons.”

-Livelaw

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