On the condition of immediately leaving the country and undertake not to visit India for the next ten years, the criminal prosecution initiated against nine foreign nationals belonging to the Tablighi Jamaat has been quashed and set aside by the Karnataka High Court.
The petitions filed by the foreign nationals who were arrested under the provisions of the Foreigners Act, 1946 for the violation of the conditions of visas was allowed by a bench of Justice Krishna S Dixit.
All have been directed to pay a fine that may be levied by the competent authority. The court has however refused to quash the case against seven Indian nationals, who are members of the Tablighi Jamaat considering that their case stands on a different footing.
The authorities claimed that on the basis of e-Tourist visa, the foreign nationals had entered India because of Tablighi Jamaat and were found to be carrying out preaching of religious principles, an activity which is permissible only under the Missionary Visa.
The accused represented by Advocate Mohammed Tahir argued that “There is no specific prohibition in the Visas in question for preaching religious principles in the Tablighi Jamaat congregation.”
The courtturned down the argument bystating “The very nature of these Visas, what is permissible is what is specifically provided for and therefore, the question of one looking for prohibition is irrelevant to say the least. In other words, what is not provided for in the Visa, is deemed to be impermissible; thus, the general principle that what all is not prohibited is permissible for a natural person and what all is not provided for is impermissible for a juristic person, ordinarily cannot be invoked by foreign nationals.”
Reliance on two unreported judgments was made by Tahir (Mr.Junia Erastus Mayemba Vs. The Bureau of Immigration) and (Mr.FreddyTshimangaKanyama Vs. Bureau of Immigration) of the Karnataka High court to argue that “The intended prosecution is not desirable since it would eventually result in overstaying of the foreign nationals at the cost of State Exchequer and therefore, these foreign nationals in Tablighi Jamaat be granted exit at the earliest.”
Arguments were raised by Special Public Prosecutor V M Sheelvanth and Assistant Solicitor General C Shashikantha that if at all the accused foreigners are shown mercy, which is an attribute of Sovereign Power in view of the aforesaid two judgments, this court should prescribe similar conditions as are stipulated by the Madras High Court in Md. Kameual Islam and Others Vs. State, 2020 (SCC OnLine Mad 1171).
The petitioners’ counsel agreed for the same, following which the court imposed similar conditions and held that its order will not act as a precedent.
The petitioners’ allegations were rejected by the bench,“The criminal proceedings are initiated by the police, with the prejudice generated by the Media propaganda, and for the statistical purpose of the State.”
The court noted,“Having examined the entire file made available by the learned SPP, does not find even an iota of material for entertaining such a baseless grievance; on the contrary, this gathers from the records a legitimate impression that the police having stood tall, exercised a lot of restraint despite running a huge risk of COVID-19 infection and tolerating the attack/assault by the miscreants; this court will be failing in its duty if it does not place on record a deep appreciation of the State Police for their yeoman service being rendered during COVID crises.”
The Madras HC in Junehad closed cases against 31 foreign Tablighi Jamaatis after saying that they have “suffered enough”, and urged the Centre to consider their pleas to return to their native countries.
CRIMINAL PETITION NO 2376/2020
FARHAN HUSSAIN And STATE BY THILAK PARK P S TUMKUR CITY,
Coram: Justice Krishna S Dixit
Order Date: August 5, 2020.
Advocate Mohammed Tahir for Petitioners.
Special Public Prosecutor V M Sheelvantha/w SPP V S Hegde and Advocate Namitha Mahesh B G, for State
ASG: C Shashikantha for Union of India.