• Mandavi Banerjee

Delhi HC Issues Notice To Seek For Quashing Of Second FIR, After Entering Into A Plea Bargain

Updated: Aug 1

News Article covered by Mandavi Banerjee and Niloy Subir Ghosh

The Petitioners were represented by Senior Advocate Rebecca M. John, along with Advocates Ashima Mandla and Mandakini Singh. The matter was heard by Justice Anup J. Bhambhani. Three petitions have been filed with this issue with two related to the quashing of Fir and the third one was an instant plea. The third plea had been drafted by Ashima Mandla and Mandakini Singh. The third plea was listed before Justice Anu Malhotra and Advocate Ashima Mandla requested for the same to be placed before Justice Bhambhani; the same was allowed. The plea stated that this is a classic example of a case wherein unsubstantiated allegations have been embellished and exaggerated with most of the falsehood added to a grain of truth. Unless this Honourable Court protects the honour and dignity of the Petitioner by intervention at this stage, even his acquittal will not wipe out the ignominy and stigma caused by ordeal of facing criminal trial. The Court has further asked the Centre and Delhi Police to file their status reports on the issue before the next date of hearing that is on August 10.

The present quashing petition has been preferred by the Petitioners impugning an FIR dated 01.04.2020 registered at P.S.Seelampur under the sections of 188/269/270/271 IPC and Section 3 of the Epidemic Diseases Act, 1897 liable to be quashed as being the ‘second FIR’ arising out of same chain of events as levelled mentioned in FIR registered at P.S. Crime Branch wherein the foreign national Petitioners have duly entered plea bargaining and consequent deportation orders have been issued in the South-East District, Sake Court.

The instant case is a classic example of case wherein unsubstantiated allegations have been embellished and exaggerated with most of the falsehood added to a grain of truth amounting to. The Hon’ble Court has to protect the honour and dignity of the Petitioner by intervention at this stage. The Petitioners herein are being compelled to repeatedly face the same interconnected charges, thereby infringing upon their personal liberty. Moreover, personal liberty has been held to be most sacrosanct and highest in the scale of Constitutional values. Thus, the allegations levelled qua foreign nationals herein in the Impugned FIR registered at P.S. Seelampur, suffers infirmity of the multiplicity of allegations, arising same cause of action and territorial jurisdiction. To bolster the contention that the second FIR could not have been entertained, reliance is further placed on the decisions of T.T. Antony v. State of Kerala and Ors (AIR 2001 SC 2637), Pandurang Chandrakant Mhatre and Ors. v. State of Maharashtra, (2009) 10 SCC 773 and such cases. Reliance in this regard is placed upon the decision of the Hon’ble Apex Court in the case of Mohammad Safi, Appellant v. The State of West Bengal, Respondent, (AIR 1966 SC 69) held that a person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence. The principle of double jeopardy is highlighted on this account which has been stated in Article 20(2) of the Constitution of India.

To begin with, let us briefly mention the case and the grounds on which such a contention arose. The Tablighi Jamaat, is an Islamic self-reformatory movement, for the followers of Islam, by the followers of Islam have its headquarters at the Nizamuddin Markaz, New Delhi organizing the annual religious congregation at the aforementioned occasion. It is pertinent to mention that followers and members of the movement from across the globe participate in the religious congregation at the Markaz. That the Respondent had registered FIR dated 31.03.2020 under sections 3 Epidemic Diseases Act, Sections 188/269/270/120-B/271 IPC and Sections 51/58 of Disaster Management Act, 2005 was registered at P.S. Crime Branch qua 7 Indian Nationals. Subsequently, on 02.04.2020, the Respondent No.3 unilaterally and arbitrarily directed for the blacklisting 960 foreign nationals, present in the country on a tourism visa, for alleged involvement in Tablighi Jamaat activities and further directed DGPs of all concerned States/UTs and CP, Delhi Police to take alleged necessary legal action against all foreigners under the relevant sections of the Foreigners Act, 1946 and the Disaster Management Act, 2005.

The issue was that The Delhi Government in pursuance to exercise of powers conferred by the Delhi Epidemic Diseases, Covid-19, Regulations, 2020 under the Epidemic Diseases Act, 1897 capped all sports gatherings (including IPL)/conferences and seminars at 200 persons. However, no mention was made insofar as prohibiting religious congregations. The Delhi Government issued an Order in superseded the previous Order dated 13.03.2020 expanding the scope of the prohibitions including social, cultural, political, religious gatherings and, academic/sports/seminars events restricted to 50 persons. After a series of events, that happened between 24.07.2020-27.07.2020 the Petitioners herein entered plea bargaining before the Ld. MM, Saket Court under Section 265A of the Code of Criminal Procedure, 1973. The Metropolitan Magistrate imposed a fine while disposing of the aforementioned plea bargaining applications. Thereafter, the Chief Metropolitan Magistrate issued deportation orders qua foreign nationals having successfully entered plea bargaining.

Following these the main grounds will be stated as follows: (1) it is clear from the chronology of undisputed and undisrupted facts that the allegations levelled against the aggrieved foreign nationals are prima facie embellishments and exaggerations. It has been laid down by the Hon’ble Supreme Court that courts cannot wink at, or step over, or ignore the infringement of the most important fundamental right guaranteed under Article 21 of the Constitution of India. (2) The initiation of action qua foreign nationals is bereft of legality as by the medium of the Impugned FIR registered at P.S. Seelampur, the Petitioners herein are being compelled to face charges corresponding to charges levelled in FIR registered at P.S. Crime Branch, notwithstanding the fact that Petitioners No.1 to 12 duly entered plea bargaining u/s 265A of the Code. This is following the principle of double jeopardy. (3) The follow up of that principle is that the allegations levelled qua foreign nationals herein in the Impugned FIR registered at P.S. Seelampur, suffers infirmity of a multiplicity of allegations, arising same cause of action and territorial jurisdiction. Hence, the Impugned FIR, registered subsequently to FIR, is liable to be set aside, as being barred by law for being categorized as a second FIR. (4) The law prohibits lodgment of the second FIR in respect of the same cognizable offence and hence when there is a legal impediment for setting the criminal law in motion, the decision in State of Haryana and Others v. Bhajan Lal & Ors. (AIR 1992 SC 604) gets attracted. To further consolidate these grounds, the main justifications are as follows: (5) the Respondents herein failed to appreciate that the foreign nationals in question had entered the country, on validly issued tourism visas, simply to attend the religious congregation organized by the Tablighi Jamat at Nizamuddin Markaz and without an iota of evidence substantiating the allegation of the defined Tabhlig work. (6) Moreover, it is imperative to reiterate the objective behind the movement of Tablighi Jamaat is for the followers of Islam to embark upon a journey of self-reformation, which is organized by the followers of Islam and only for the followers of Islam and does not entail preaching with the object of conversion. Thus, the charges levelled qua foreign nationals u/s 14(b) of the Foreigners Act, 1946 are prima facie unmaintainable as lacking evidence and intelligible differentia, without application of mind, with the intent of initiating criminal action against the foreign nationals. Hence, the same is liable to be quashed as being devoid of merit in law.

After looking at these grounds the following prayer has been issued. The Prayer is as follows: (i) Pass appropriate orders/directions thereby, quashing of FIR dated 01.04.2020 registered at P.S. Seelampur qua foreign nationals and the proceedings consequent thereto against the petitioner herein; (ii) Pass appropriate orders/directions thereby directing the Respondents to close the LoC issued qua foreign national Petitioners, in a stipulated time period and submit a status report of the same before this Hon’ble Court; (iii) Pass any other order or orders as the Hon'ble Court may deem fit in the light of the abovementioned facts and circumstances. In conclusion; The judge while writing the order held that the advocate has pointed out that the offences in both the FIRs is the same and that all that is said in the second fir is that the petitioners were found in a mosque in New Seelampur. He also held that the even in the first fir the state never informed the trial court that another fir was pending against the petitioners nor were they made aware of the second FIR and held that it is a gross abuse of the process of law. The judge held that due to the second FIR the petitioners were not able to return back to their countries despite having pleaded guilty and having paid the fines and directed to issue the notice.

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