20 foreign Tablighi Jamaat accused of spreading Coronavirus and violating the orders of lockdown given by two police officers are acquitted by a Metropolitan Magistrate Court in Andheri. Also, the two police officers were prosecution witnesses in the case.
Charges on the accused
- The accused were facing trial for the offences under Section 37(3) of Bombay Police Act punishable under Section 135 of the 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.
Brief Facts of the Case
- As per the prosecution, on March 29, 2020, at about 10 AM the informant along with 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 the necessary information. During the 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.
- 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 the necessary information, he found that their Passports and VISA are valid and they have come from Delhi Markaz on February 22, 2020.
- Upon receipt of a 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 the 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 along with 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 its 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, the charge came to be framed and the accused abjured their guilt and claimed to be tried.
Observation of the Court
- Metropolitan Magistrate RR Khan noted that the prosecution witnesses themselves admitted that they have not seen accused persons contravening any directions or order issued by the authority. Thus, there is no iota of evidence with the prosecution to show any contravention of orders by the accused persons, Court said.
- 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, the prosecution has examined 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 further added from the combined perusal of the evidence of Police officials of prosecution, it is apparent that both of them have deposed that the accused have not committed a violation of lock-down or curfew. Additionally, they have deposed that they neither entered into the mosque and nor noticed accused contravening the lock-down norms. Ultimately, the prosecution witnesses themselves have clarified the position of accused persons.
- Furthermore, the Magistrate noted that the accused persons are charged for the offence under Section 37(3) r/w 135 of the Bombay Police Act. Admittedly, accused persons are foreigners; therefore, they are not acquainted with the local language as well as the law of the State. The basic principle of infringement of Section 37 of Bombay Police Act is based upon public promulgation of orders. It is transparent that the order in question was not promulgated to accused persons individually, Court noted.
The Magistrate Court recorded the following while acquitting the accused
- The brief survey of prosecution evidence transpires that none of the examined witnesses has 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 the authority. The said witnesses were also not found in a position to tell where and how the accused person was residing at the time of the alleged offence.
- Thus there is no iota of evidence with the prosecution to show any contravention of the order by accused persons beyond all shadow of a doubt. During the imposition of lockdown and their ultimate shelter in mosque or nearby will not render them responsible for such contravention. There is no legal evidence adduced by the 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 the charge, I am satisfied to answer my finding to point no.1 in negative and further satisfied to acquit the accused persons.
- The accused belonged to two different countries, ten of them are from Indonesia and the other ten is from the Kyrgyz Republic. Thus, the Magistrate court passed two separate orders.
Case Name: The State Vs. Niiazov Nurgazy
Case No.: C. C. No. 1603 / PW / 2020 (Old case No.988/PW/2020)
Coram: Metropolitan Magistrate RR Khan