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Bombay HC dismisses FIR against foreign Tablighis saying they did not violate visa rules, says Maharashtra govt used them as scapegoats

Bombay High Court bench said that there was no violation of visa by foreign Tablighis as there are no restrictions on foreigners for visiting religious places

On Friday, the Bombay High Court dismissed FIRs filed against foreign nationals booked under the various provisions for violating their tourist visa conditions by attending the Tablighi Jamaat congregation at Nizamuddin in Delhi, considered to be one of the epicentres of coronavirus pandemic in the country, reports Live Law.

The Aurangabad bench of the Bombay High Court, hearing a petition filed by 29 foreign nationals noted that Maharashtra government had acted under political compulsion and police also did not dare to exercise powers given to them under provisions of procedural laws and substantive laws.

The foreign Tablighis were booked under sections of Indian Penal Code, Epidemic Diseases Act, Maharashtra Police Act, Disaster Management Act and Foreigner’s Act by the Maharashtra police after they were suspected to be spreading coronavirus.

A bench comprising of Justice TV Nalawade and Justice MG Sewlikar quashing the FIRs against foreign Tablighis blamed the government for making these foreigners a scapegoat by registering the FIR against them.

“A political government tries to find the scapegoat when there is pandemic or calamity and the circumstances show that there is probability that these foreigners were chosen to make them scapegoats,” observed the Bombay High Court.

Did not violate visa rules: Foreign Tablighis

The petitioners submitted the court that they had visited India on a valid visa issued by the Government of India and they have come to experience Indian culture, tradition, hospitality and Indian food. They said that upon their arrival at the airport, they were screened and tested for coronavirus and only when they were found negative for the virus, they were allowed to leave the airport.

The petitioners argued that they were not involved in illegal activity including the breach of the order of the District Collector. They contended that even at Markaz, they had observed norms of physical distancing. The foreign Tablighis also claimed that under the conditions of the visa, there was no prohibition to visit religious places like Masjids.

Maharashtra police contends that Tablighis spread coronavirus

However, the Ahmednagar police had contended that the petitioners were found visiting places for preaching Islam religion, resulting in a complaint against them. He also contended that five foreign nationals from three different cases were found infected by the virus.

The DSP also submitted that the District Magistrate had issued prior prohibitory orders, but in spite of prohibitory orders, the Tablighi Jamaat were involved in Tabligh activity. The police officials said that despite repeated calls for testing, these foreigners who had attended the Markaz did not come forward voluntarily for testing and instead created a threat of spreading coronavirus.

The petitioners were booked for offences punishable under sections 188, 269, 270, 290 of Indian Penal Code, sections 37 (1)(3) r/w. 135 of Maharashtra Police Act, 1951 and section 11 of Maharashtra Covid-19 Measures and Rules, 2020, sections 2, 3 and 4 of Epidemic Diseases Act, 1897, section 14 (b) of Foreigners Act, 1946 and section 51(b) of the Disaster Management Act, 2005.

Apart from the foreign nationals, Maharashtra police had also booked six Indian nationals and trustees of the Masjids for giving shelter to the petitioners. The police had booked after receiving secret information about them residing at the respective masjids in different areas and offering prayers in violation of lockdown orders.

No violation of visa by foreign Tablighis: Bombay High Court

Hearing the arguments, the Bombay High Court bench said that there was no violation of visa by foreign Tablighis as there are no restrictions on foreigners for visiting religious places and attending normal religious activities like attending religious discourses.

“Ordinarily, a tourist is not expected to follow the procedure laid down in para No. 19.8 if he does not want to preach the religious ideologies etc,” the court observed.

Justice Nalawade observed, “Tabligh Jamaat is not a separate sect of Muslim, but it is only movement for reformation of religion…it cannot be inferred that the foreigners were spreading Islam religion by converting persons of other religion to Islam. The record shows that the foreigners were not talking Indian languages like Hindi or Urdu and they were talking languages like Arabian, French etc. In view of the aforesaid discussion, it can be said that the foreigners may have the intention to know the ideas of Tabligh Jamaat about the reformation.”

The court noted that the allegations against Tablighi Jamaat very vague in nature and from these allegations it cannot be said at any stage that they were spreading Islam religion and there was the intention of conversion.

Media propaganda against foreigners, says Bombay HC

Criticising the media’s portrayal of foreign nationals who attended Tablighi Jamaat, Justice Nalawade said there was big propaganda in print media and electronic media against the foreigners who had come to Markaz Delhi. The court also said that there was an attempt to create a picture that these foreigners were responsible for spreading coronavirus in India. There was virtually persecution against these foreigners, the court observed.

“It is now high time for the concerned to repent about this action taken against the foreigners and to take some positive steps to repair the damage done by such action,” the Bombay High Court said.

Referring to saying ‘Atithi Devo Bhava’, Justice Nalawade said that one needs to show more tolerance and need to be more sensitive towards our guests particularly like the present petitioners.

The allegations, according to Justice Nalawade, showed that instead of helping the foreign Tablighis the state government lodged them in jails by making allegations that they are responsible for violation of travel documents, they are responsible for spreading of virus etc.

Bombay HC links CAA protests to Tablighi Jamaat episode

Referring to the anti-CAA protests, the bench said that due to the actions taken against Muslims fear was created in their minds. This action against Tablighis indirectly gave warning to Indian Muslims that action in any form and for anything can be taken against Muslims.

The court noted, “It was indicated that even for keeping contact with Muslims of other countries, action will be taken against them. Thus, there is smell of malice to the action taken against these foreigners and Muslim for their alleged activities. The circumstances like malice is important consideration when relief is claimed of quashing of FIR and the case itself.”

The Court concluding that the state government acted under political compulsion and action against the foreign nationals was malice, quashed all petitions and FIRs registered against them.

Interestingly, the same bench in February 2020 had quashed Sec 144 orders after observing that ant-CAA protesters cannot be called “anti-nationals or traitors”.

Earlier, we had reported regarding how courts over the last few weeks granted a spree of bails and plea bargaining in connection with the Tablighi Jamaat congregation that took place at Markaz Nizamuddin during mid-March amidst the coronavirus outbreak in the country.

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