"Reasonably probable" foreign Tablighi Jamaat attendees maliciously prosecuted on Home Ministry directions: Delhi court in acquittal order

A Delhi Court acquitted several foreign nationals in the criminal case concerning the violation of COVID-19 norms by Tablighi Jamaat participants at Nizamuddin Markaz holding that the prosecution failed to prove the presence of the accused at the relevant time (State vs Mohd Jamal) (State vs Kuvanchbek Abakirov)..In view of the contradictions in the prosecution's case with respect to the presence of the accused persons at the Markaz during the relevant time period, Judge Arun Kumar Garg, Chief Metropolitan Magistrate, Saket Courts remarked that the defence that they were "picked up from different places so as to maliciously prosecute them upon directions from Ministry of home affairs, Govt. of India" was "reasonably probable". .The foreign nationals belonged to over ten different countries including the United States of America and Russia..All accused persons were facing trial for alleged commission of offences under Sections 188 (Disobedience to order duly promulgated by public servant) and 269 (Negligent act likely to spread infection of disease dangerous to life) IPC, Section 3 (Penalty for violation of Section 188 IPC) of the Epidemic Diseases Act, 1897 and Section 51 (Punishment for obstruction, etc) of the Disaster Management Act, 2005. .While dealing with Section 188 IPC, the Court stated that "promulgation" and "actual knowledge" of the order were the prerequisites for a conviction under it. .The prosecution, however, failed to establish either in the present case, the court said. ."..the prosecution has failed to lead any evidence of promulgation of the order u/s 144 Cr.P.C. by ACP, Lajpat Nagar in the sense that not even an iota of evidence about publication thereof so as to bring the same to the notice of persons staying in Markaz has been brought on record," the court explained. .The court added that mere uploading of orders on Delhi Police website did not have the effect of promulgation or of establishing the proof of knowledge. .The court further held that the prosecution even failed to prove the disobedience of any of the directions contained in the order as there was no evidence to establish the presence of any of the accused at Markaz during the relevant period. .The court observed that the testimony of the SHO concerned did not "pass the test of creditworthiness" and hence identification by him of the accused persons in the court was not sufficient to discharge the onus of prosecution to prove the presence of the accused at Markaz during the relevant period..Considering the absence of proof to establish the presence of the accused inside the Markaz, as well as the records showing that none of the accused had COVID-19 symptoms at the time of their alleged evacuation, the Court further ruled that the offence under Section 269 was also not proved. ."..even if it is assumed for the sake of argument that some of the accused are proved to have been found Covid 19 positive on different dates i.e. 01.04.2020, 09.04.2020 and 10.04.2020, in the absence of any symptoms at the time of their alleged stay at Markaz, they can’t be said to have been indulged in commission of any negligent act likely to spread infection," the Court added. .Similarly, the charges under Section 3 of the Epidemic Diseases Act, 1897 and Section 51 of the Disaster Management Act, 2005 were also held to be "not proved' against any of the accused for want of reliable evidence of their presence. .[Read order]