- Apprentice Lawyer
The Patna High Court recently quashed criminal proceedings against foreign nationals accused of indulging in Tablighi Jamaat work while on tourist visas (Md. Enamul Hasan v. Union of India).
The petitioners - nationals of Bangladesh, Malaysia, and Australia - had visited the Nizamuddin Markaz held at Delhi in March this year.
A single-judge Bench of Justice Rajeev Ranjan Prasad took exception to the routine and mechanical manner in which the Chief Judicial Magistrate took cognizance and issued summons to the accused, supposedly for indulging in spreading religious ideologies.
The foreign nationals as well as two Indian nationals, were accused of:
(i) failing to furnish information about their visit to the police station, as was required by the Foreigners Act, 1946 and
(ii) “getting involved in the spread of religious ideologies" after entering the country on a tourist visa
The charges were slapped against the petitioners just after the COVID-19 lockdown was announced in March this year.
The Indian nationals accused along with the foreign nationals are maulanas of masjids that housed the foreign nationals during their stay in India.
The Bihar Police registered FIRs against them upon a complaint by an informant, who stated that the Indian petitioners had called in certain Bangladeshi nationals to spread religious ideologies.
The informant further claimed that the two petitioners were unable to satisfactorily answer his query as to why the Narpatganj Police Station was not informed about the stay of “Bangaladesis” in the Rewahi Markaz at Patna.
The petitioners informed the Court that they had been screened for COVID-19 and had also undergone the required period of quarantine.
The High Court was thus faced with the question of whether the petitioners’ activities violated the Foreigners Act or any of the Visa Rules.
The Home Ministry’s Visa Manual prescribes punishment for those indulging in Tabligh work or in preaching and propagation. However, the Manual carves out an exception for foreign nationals who visit India to attend the Markaz and also acknowledges that the attendees often stay in masjids during their stay, the Court noted.
The Court found that the petitioners had not indulged in preaching and propagating their ideologies underscoring that the Manual exempted those who attended Markaz from punishment as in this case.
After examining the material produced, the judge remarked:
However, the Court observed that while the Foreigners Act did not require the foreign nationals to report directly to the police station, it required keepers of ‘hotels’ to furnish information about the persons residing in their premises.
Relying on the definition provided for the term ‘hotel’, the Court reasoned that even a masjid or markaz of the kind that housed the foreign nationals would fall under the term 'hotel'. This would hold irrespective of whether the person/foreign national staying in these places were staying for consideration or reward.
Thus, it was held,
"In the present case the allegations that the foreign nationals had not reported about their stay to the local police station is a misconceived kind of allegation and based on misconception of law.
At the same time this Court is of the considered opinion that the management of the ‘Mosque’/ ‘Markaz’ / ‘Madarsa’ cannot take a plea that they are not obliged to report the stay of a foreign national in their premises to the Registering Authority and/or that they cannot allow Police Officer or an authorized person to inspect the records..."
However, criminal proceedings against the foreign nationals were dropped, and the State was directed to deport them.
The case against Indian nationals would, however, continue with the Court stating that there exists prima facie case against them to issue summons.
The petitioners were represented by Senior Advocate PK Shahi, while Additional Solicitor General KN Singh appeared for the Central government.