Mumbai: On Wednesday (29th September) the Court of Metropolitan Magistrate (12th Court, Bandra, Mumbai) discharged 12 Indonesian nationals, part of the Tablighi Jamaat, of all the charges leveled against them.
It may be noted that this order by Metropolitan Magistrate Jaydeo Y. Ghule came a month after the Bandra police dropped charges of attempt to murder and culpable homicide not amounting to murder against these 12 Indonesian nationals.
The Discharge plea was filed before the metropolitan magistrate’s court by the Lawyer Ishrat Khan, which stated that – “The present applicants were sought to be implicated only on the ground that they are foreigners and were present during the announcement of lockdown due to the outbreak of Covid-19.”
The lawyer, Ishrat Khan also relied on similar orders issued by the Bombay HC as well as the local courts discharging foreign nationals, part of the Tablighi Jamaat congregation.
Facts of the Case
The accused were arrayed as accused in the crime number 280/2020, registered under Section 188, 269, 270 of Indian Penal Code r/w Section 3, 4 of Epidemic Disease Act 1897 r/w Section 14 (b) of the Foreigners Act and Section 51 of The Disaster Management Act, 2005.
It was clarified by the Counsel of the Accused that they came to Delhi on 29-02-2020, 02-03-2020 and 06-03-2020 (in different batches). Thereafter, all the accused left Delhi by train and reached Mumbai on 07-03-2020. During that period the Central and the State Government announced Lockdown on accont of COVID-19.
Therefore, it was submitted, they were unable to move and leave the Country. During that period, as per the Central and State Government’s directions, the applicants carried their COVID-19 test.
In that test, the accused no.1 to 10 tested negative and accused No. 11 and 12 tested positive and later the Accused no. 11 and 12 also tested negative.
It was submitted that the Accused have been falsely involved in this crime. They were not all concerned with this crime and that they weren’t the carriers of COVID-19 infection.
The Counsel of Accused also submitted that initially, the police had registered the Crime under Section 307 and 304 (2) of the Indian Penal Code. However, when the Police did not find sufficient reasons to continue with the said charges, they deleted those sections after thorough investigation.
It was submitted that as per the provisions of The Foreigners Act [Section 14 (b)], the Visa of all accused was a tourist Visa.
At the time of registration of Crime, Visas of all the accused were valid, therefore, the question does not arise related to the breach the Section 14 (b) of the Foreigners Act.
It was stated before the Court that the Investigation papers also revealed that the accused are not liable to spread COVID and therefore, the Accused are not liable under Section 188, 269 of IPC and Section 14 (b) of the Foreigners Act. The Accused are also not liable for National Disaster management Act. Therefore, it was prayed that they be discharged of all the offences
The Counsel relied upon the ruling of Bombay HC in the case of Konan Kodio Ganstone and ors. v. State of Mahrashtra [Criminal Writ Petition No. 548/2020] and submitted that the Bombay HC discharged the Accused of same offences in the said matter, after giving detailed reasons.
Notably, in this matter, in a strongly-worded judgment, the Bombay High Court on 21st August had quashed the FIRs filed against a total of 29 foreign nationals who were booked under various provisions of IPC, Epidemic Diseases Act, Maharashtra Police Act, Disaster Management Act and Foreigner’s Act for allegedly violating their Tourist Visa conditions by attending the Tablighi Jamaat congregation at Nizamuddin in Delhi.
Hence, in the present case, it was submitted that the accused be discharged of the alleged offences.
Court’s Analysis (based on the Charge sheet and other records)
After perusing the application submitted by the parties and the charge sheet filed by the Police, the Court observed that the Crime no. 280/2020 was registered against the Accused under Section 307 and 304 (2) of IPC r/w the Disaster Management Act and the Epidemic Disease Act.
The Court also found that the Police seized the Visa of all the accused by preparing the panchnama; the panchnama revealed that at the time of registration of offence, the VISAs of all accused were valid and they came to India on Tourist Visa.
Firstly, the Court noted, the Investigation officer submitted that the Accused were liable for spreading COVID-19 infection and they did not follow the rules the rules and regulation of the Disaster Management Act and the Epidemic Disease Act and hence, they are liable for the offences registered against them.
While perusing the Charge sheet filed by the Investigation officer, the Court took into account the fact that firstly, the offence was registered against the accused under Section 307 and 304 (2) of IPC and thereafter, section 307 and 304 (2) of IPC was deleted by the I.O.
At the time of deletion of the said sections of IPC, the IO stated that the accused were not liable for spreading the COVID-19 in public at large and hence, they deleted Section 307 and 304 (2) of IPC.
The Court further noted that during the investigation, it wasn’t revealed that due to Accused persons, COVID was spread.
The Investigation papers also revealed that the Accused came from Indonesia on a tourist VISA. They visited various Masjids in Mumbai and in Delhi. The Accused stayed in Masjid as well as in the house of some people.
The Court remarked,
“After going through the Judgment of Bombay High Court and the facts and circumstances of the case, it does not reveal that the accused had deliberately disobeyed the order duly promulgated by the Public Servant as well as negligently, they were acting in the manner as was likely to spread the infection of the disease dangerous to life.”
The Record also revealed that as per the Foreigners Act Section 14 (b), the Accused did not breach the condition of VISA. Therefore, the Court opined that as per the allegations levelled against the accused and evidence on record, it does not reveal that the Accused disobeyed the order of Central as well State Government and acted negligently and were liable to spread the infection of COVID-19.
Therefore, the Court issued the following orders:-
A. The Accused be discharged from charge levelled against them
B. The seized passports be returned to accused with due identification
C. The bail bond of the accused stands cancelled.