1

IN THE COURT OF LD. SESSIONS COURT, SAKET

COURTS,
NEW DELHI
IN THE MATTER OF:
ABDULLA GAIBALLA FADLELMOULA
…APPLICANT/ACCUSED PERSON
VERSUS
STATE OF NCT OF DELHI ..PROSECUTION
(SUDANESE NATIONAL)
FIR NO. 63/2020
PS: Crime Branch
Chargesheet No.19
U/S: Section 14 (b) Foreigners Act, 1946 r/w
U/s 3 of Epidemic Diseases Act, 1897,
Section 51/58(1) of the Disaster Management Act, 2005 &
Section 188/269/270/271/120B Indian Penal Code, 1860

APPLICATION U/S 397 OF THE CODE OF CRIMINAL

PROCEDURE, 1973 PRAYING FOR SETTING ASIDE ORDER OF
FRAMING OF CHARGE PASSED BY THE LD. CMM-SE, SAKET
COURT U/S 240 OF THE CODE OF CRIMINAL PROCEDURE,
1973 QUA ACCUSED PERSON HEREIN ARISING OUT FIR NO.
63/2020 REGISTERED AT P.S. CRIME BRANCH ALONG-WITH
SUPPORTING AFFIDAVIT
MOST RESPECTFULLY SHOWETH:

1. That the present criminal revision is being preferred by the accused

herein impugning the Order dated 24.08.2020 passed by the Ld. CMM-
SE, Saket Court, New Delhi in Cr Cases 1561/2020 arising out of FIR
No. 63/2020 registered at P.S. Crime Branch. The Ld. CMM-SE while
passing the Impugned Order on one hand correctly reasoned that
charges u/s 14(b) Foreigners Act, 1946, Sections 270/271 IPC are not
made out qua accused herein, however insofar as charges u/s 3 of the
Epidemic Diseases Act, 1897, Section 188 IPC, Section 269 IPC, and
Section 51 of the Disaster Management Act, 2005, the Ld. CMM erred
in framing charges qua accused herein. The Ld. CMM has grossly erred
 2

in exercising its power u/s 240 of the Code of Criminal Procedure

(hereinafter referred to as CrPC) and thereby framing charges u/s 3 of
the Epidemic Diseases Act, 1897, Section 188 IPC, Section 269 IPC,
and Section 51 of the Disaster Management Act, 2005 in the absence of
a shred of prima facie evidence either indicative of or incriminating the
accused herein qua allegations so levelled. Resultantly, the act of
dismissal of the discharge application u/s 239 CrPC moved by the
accused herein before the Ld. CMM-SE, Saket Court, and framing
charge qua accused herein on mere conjectures & surmises is untenable
in law. Hence, the present criminal revision thereby challenges the
legality, propriety and correctness of the Order of framing of charge.
True Copy of Order dated 24.08.2020 passed by the Ld. CMM-SE,
Saket Court is marked and annexed as ANNEXURE P/1 Pg.
2. BRIEF BACKGROUND OF THE CASE:
2.1That the Tablighi Jamaat, is an Islamic self-reformatory
movement, for the followers of Islam, by the followers of Islam
having 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. The details of the events are
formalized a year in advance, for the convenience of the foreign
nationals attending the same. This year the congregation was
scheduled for early March, 2020, well before the outbreak of
Covid-19.
2.2That on 13.03.2020 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.
2.3That on 16.03.2020 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,
 3

religious gatherings and, academic/sports/seminars events

restricted to 50 persons.
2.4That on 22.03.2020 pursuant to the “Janta Curfew” declared by the
Respondent No.2, consequently on 24.03.2020, a nationwide
lockdown for a period of 21 days was declared w.e.f 25.03.2020.
Presently, the 4th-continuous nation-wide lockdown is extended till
31.05.2020
2.5That on 31.03.2020 the Respondent No.2 FIR No. 63/2020
registered at P.S. Crime Branch u/s 188/269/270/271/120-B of the
Indian Penal Code r/w Section 3 of the Epidemic Diseases Act,
1897 and Sections 51/58 of the Disaster Management Act, 2005
was against the alleged organisers of Tablighi Jamaat. It is
pertinent to mention that the aforementioned FIR No. 63/2020 was
limited to Indian Nationals and alleged organisers of Jamaat
congregation at Nizamuddin Markaz.
2.6That on 02.04.2020 thereafter, the MHA directed for unilaterally
and arbitrarily blacklisting 960 foreign nationals, present in the
country on 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.
Consequently, the scope of FIR No. 63/2020 was enlarged, thereby
including the foreign nationals herein.
2.7That on 09.05.2020 the Office of Divisional Commissioner,
Department of Revenue, Government of NCT of Delhi ordered for
the release of the Indian Nationals related to the Markaz and other
Masjids from institutional quarantine upon testing negative, while
adhering to the Standard Operating Procedure of the various States
and UTs. Furthermore, Paragraph 5 of the aforesaid Order under
the advisement of the Respondent No.2 directed for the handing
over of 567 foreign nationals related to Markaz and other masjids
 4

to the custody of the Respondent No.4 i.e. Delhi Police, upon

being tested negative for Covid-19.
2.8That on 19.05.2020, twenty foreign nationals held in institutional
quarantine, in representative capacity preferred Writ
Petition(Criminal) No. 838/2020 before this Hon’ble Court praying
for issuance of a writ of mandamus and habeas corpus, thereby
seeking quashing of Order dated 09.05.2020 and praying for
release of the foreign nationals from institutional quarantine,
respectively, as the 955 persons were held in institutional
quarantine for over a month and a half despite repeatedly testing
negative for Covid-19.
2.9That on 26.05.2020 The Respondent No.2 filed 20 chargesheets
against 82 foreign nationals in connection with Tablighi Jamaat u/s
14(b) of the Foreigners Act, 1946, Section 3 of the Epidemic
Diseases Act, 1897, Section 51 of the Disaster Management Act,
2005 and Sections 188/269/270/271 of the Indian Penal Code,
1860 before the Ld. MM, Saket Court.
2.10 That on 27.05.2020, the Respondent No.2 further filed 15
chargesheets against 294 foreign nationals in connection with
Tablighi Jamaat before the Ld. MM, Saket Court.
2.11 That on 28.05.2020, Respondent No.2 filed 12 chargesheets
against foreign nationals in connection with Tablighi Jamaat before
the Ld. MM, Saket Court.
2.12 That on 28.05.2020 The Division Bench of this Hon’ble Court
in W.P. (Crl.) No. 838/2020 vide Order dated 28.05.2020 allowed
the shifting of the foreign nationals from institutional quarantine
centres to places of alternate accommodation as suggested by the
community, whereby the expenses of the same were undertaken to
be borne by the community.
2.13 That on 19.06.2020 moreover, the Respondent No.2 filed 1
fresh chargesheet and 11 supplementary chargesheets against 46
foreigners from 12 countries before the Ld. MM, Saket Court.
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2.14 That on 06.07.2020 the Ld. CMM, Saket Court took cognizance
in chargesheets filed qua 955 foreign nationals in FIR No. 63/2020
registered at Crime Branch u/s 3 Epidemic Diseases Act, 1897,
Sections 51/58 of Disaster Management Act, Sections
188/269/270/271 IPC and Section 14(b) of Foreigners Act, 1946.
2.15 That on 24.08.2020 the Ld. CMM-SE, Saket vide Impugned
Order discharged the applicant/accused herein u/s 14(b) of the
Foreigners Act, 1946 and Sections 270/271 IPC, while
errerneously framing charges u/s Section 3 Epidemic Diseases Act,
1897, Section 188 IPC, 269 IPC, and Section 51 Disaster
Management Act, 2005.
2.16 That the Applicant herein has now preferred a Criminal Revision u/s
397 of the Code of Criminal Procedure, 1973 before this Hon’ble
impugning the Order dated 24.08.2020 passed by the Ld. CMM-
SE,inter-alia, on the following grounds:

GROUNDS
A. BECAUSE it is pertinent to mention that the accused herein entered
the country on a validly issued Tourism visa on 26.02.2020 and
visited the Markaz only on 27.02.2020 till 29.02.2020. It is
noteworthy that the Ld. CMM made an erroneous presumption based
on the entry record of the accused in the Markaz register (@504-631
of the Chargesheet, Document, Vol.1), in the absence of any shred
of evidence pertaining to the duration of stay of the accused.
Moreover, the statement of Dr. Geeta, CDMO, South East District
states that on 26.03.2020, the head-count of persons inside the
Markaz premises was 526 foreign nationals and 1183 Indian
nationals (@702-703 of the Chargesheet, Documents, Vol.1).
Conveniently so, the Prosecution has failed to come forward with
any record thereby indicating let alone establishing the presence of
the accused person inside the Markaz in the intervening duration
between 12th March-31st March, 2020. Therefore, the entire case of
the Prosecution is based on unsubstantiated conjectures.
B. BECAUSE the Prosecution has levelled unsubstantiated allegations
qua foreign nationals in connection with Tablighi Jamaat by making
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inaccurate, statements alleging foreign nationals from Indonesia,

Malaysia and other countries to have attended the religious
congregation at Markaz and allegedly acting as coronavirus carriers.
The foundation of the entire case is like that of a ‘house of cards’
and the State has evaded their sense of responsibility. To corroborate
the same, admittedly, in the reply dated 07.04.2020 afforded by the
DG-Health Services (International Health), Airport Health
Organization, Delhi to IO, Satish Kumar, P.S. Crime Branch it was
stated that the quarantine of international passengers in the wake of
Covid-19 commenced only w.e.f. 13.03.2020 (@Pg.167 of the
Chargesheet, Documents, Vol.1).
C. BECAUSE it is noteworthy that there is no material in the first
place, to show that there was any event that the foreigners
participated in, much less the dates of such participation. The
statements of witnesses (@Pg. 673, 675, 688 of Chargesheet,
Documents, Vol.1) lend no support to the case of the prosecution in
any way, as the prosecution have failed to both place and identify
any foreign national at the Markaz, much less attributing a role to
them, in the intervening period between 12.03.2020 and 31.03.2020.
The prosecution has annexed a copy of the register seized from the
Markaz in the chargesheet Reliance in this regard is thereby placed
on the judgment of the Hon’ble Supreme Court in the case of Neelu
Chopra & Anr. v. Bharti., (2009) 10 SCC 184 held that ‘mere
mention of the sections and language of those sections is not the be
all and end all of the matter. What is to be brought to the notice of
the court is the particulars of the offence committed by each and
every accused and the role played by each and every accused in
committing of that offence.’ Furthermore, Ld. CMM-SE in the
impugned Order stated that "accused persons would denote all the
accused persons", however the same is untenable in law in the
absence of specific role and identification of the accused herein in
disregarding the orders promulgated under section 144 CrPC.
D. BECAUSE the Ld.CMM-SE erred in appreciating that pursuant to
Notification dated 12.03.2020 passed by the Delhi Government
exercising powers u/s 2,3 and 4 of the Epidemic Diseases Act, 1897,
(@Pg. 57-60 of the Chargesheet, Documents, Vol.1) the
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subsequent Order dated 16.03.2020 passed by the Department of

Health and Family Welfare, Government of NCT of Delhi, imposed
a ban on religious congregations beyond 50 persons. (@Pg. 56 of
the Chargesheet, Documents, Vol. 1). It is pertinent to mention that
it is not the case of the prosecution that the accused persons were
participating in a religious congregation at Banglewali Masjid,
Nizamuddin Markaz despite the aforementioned regulations and
restrictions. Furthermore, neither the complaint dated 31.03.2020
lodged by Inspector Mukesh Walia (@Pg.1-3 of the Chargesheet,
Documents, Vol.1) nor the resultant FIR No. 63/2020 dated
31.03.2020 (@Pg.4-7 of the Chargesheet, Documents, Vol.1) fails
to mention any whisper of any religious congregation being held
inside the Markaz premises in the intervening period between
12.03.2020 to 31.03.2020.
E. BECAUSE the Ld. CMM-SE failed to appreciate that even in the
eventuality of foreign nationals being housed at Markaz pursuant to
the nation-wide lockdown in the wake of the pandemic, the same
was nothing more than ‘force of circumstances’ as there was
disruption in the operation of international flights to & fro as early as
12.03.2020 & 16.03.2020 and subsequently a complete ban
international flights was imposed on 19.03.2020 from 21.03.2020 till
15.04.2020 at the first instance, following a complete nation-wide
lockdown w.e.f. 25.03.2020 for a period of 21 days. (479-484 of the
chargsheet, Documents, Vol.1) True Copy of the Travel and Visa
Restrictions Circular dated 19.03.2020 issued by the Office of DG,
Civil Aviation, Government of India is marked and annexed as
ANNEXURE P/2 Pg.
F. BECAUSE while it is the allegation of the prosecution that large
number of persons were inside the Markaz and that one Mufti
Shehzaad was contacted in this regard. However, in the statement
dated 02.04.2020of Mohd. Ashrat Khan, ACP, Special Branch
(Communal Section) it is alleged that on 21.03.2020, Mufti
Shehzaad was instructed to send the foreigners back to their
countries, while it has been stated Mufti Shehzaad informed the ACP
that all forthcoming congregations were postponed till Eid.
Furthermore, despite ban on international flights, Mufti Shehzaad
 8

informed that on the intervening night between 23rd-24th March, 700

persons had left, however the Jamaat oragnisers were facing
problems in sending public back from Markaz (@673-674 of the
chargesheet, Documents, Vol.1).
G. BECAUSE furthermore, the prosecution failed to bring on record
letter dated 25.03.2020 addressed by one Maulana Yusuf on behalf
of the Jamaat to the SHO, P.S. Hazrat Nizamuddin stating that as on
23.03.2020 more than 1500 persons were vacated from the Markaz
premises and further the concerned SHO was informed that more
than 1000 persons were stranded inside the premises and the same
was also in the knowledge of the designated SDM. Moreover, the
letter annexed a list of vehicles arranged by the Jamaat to facilitate
the movement of the aforementioned residual number of persons, for
which permit was sought by the authorities. True Copy of the letter
dated 25.03.2020 addressed by the Jamaat, Nizamuddin Markaz to
the SHO, P.S. Hazrat Nizamuddin is marked and annexed as
ANNEXURE P/3 Pg.
H. BECAUSE moreover Ld. CMM-SE failed to appreciate, the
Ministry of Home Affairs vide Order dated 28.03.2020 advised the
Chief Secretaries & Director General of Police of all States/UTs and
CP, Delhi that if any foreign national connected with Tablighi
Jamaat, found free of COVID-19 to be immediately deported by the
first available flight. (@53-54 of the Chargesheet, Documents,
Vol.1). Consequently, the Delhi Police and Delhi Government
facilitated foreign nationals in connection with Tablighi Jamaat to be
housed at quarantine centres across Delhi . It is pertinent to mention
that the protocol followed by the Government for quarantine is for a
period of 14 days (@57-60, Chargesheet, Documents, Vol.1), per
contra, in the instant case all of the 955 foreign nationals were
housed at quarantine centres for nearly 2 months, despite repeatedly
testing negative and were released from the quarantine centres only
after intervention of the Hon’ble High Court of Delhi vide Order
dated 28.05.2020 passed in W.P. (Crl.) No. 838/2020. True Copy of
the Order dated 28.05.2020 passed by the Hon’ble High Court of
Delhi in W.P. (Crl.) No. 838/2020 is marked and annexed as
ANNEXURE P/4 Pg.
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I. BECAUSE the Ld. CMM-SE misconstrued the fact that on

31.03.2020, the present FIR No. 63/2020 registered at P.S. Crime
Branch u/s 3 of the Epidemic Diseases Act, 1897 r/w
188/269/270/120B/271 IPC and Section 51(B) of the Disaster
Management Act, 2005 was against 7 Indian nationals alone and
there was no whisper of charges against the foreign nationals.
However, despite the aforesaid admitted facts, on 02.04.2020 by
virtue of a two-paragraph press release, the MHA declared
blacklisted of 960 foreigners for their alleged involvement in
Tablighi Jamaat activities and further directed the DGPs of all
concerned State/UTs and the Commissioner of Delhi Police to take
necessary legal action against such foreigners, under relevant
sections of Foreigners Act, 1946 and Disaster Management Act 2005
(@486 of the chargesheet, Documents, Vol.1). Consequently, the
ambit of FIR No.63/2020 was enlarged on a mere presumption by
the MHA and the prosecution herein.
J. BECAUSE despite the abovementioned factual matrix, the
Ld.CMM-SE, without judicial application of mind has roped the
accused herein in the absence of prima facie evidence and below
mentioned are the submissions advanced on behalf of the accused
herein for substantiating the same.
Charges levelled u/s 3 of the Epidemic Diseases Act, 1897 and
Section 188 of the Indian Penal Code, 1860
K. BECAUSE the Ld. CMM failed to appreciate that both the
prohibitory order u/s 144 CrPC dated 24.03.2020 issued by the ACP,
Lajpat Nagar (@211-21 of the chargesheet, Document, Vol.1) and
the guidelines of the MHA pertaining to nation-wide lockdown
w.e.f. 25.03.2020 (@483 of the chargesheet, Document, Vol.1)
pertained to a prohibition on social/ cultural/ political/ religious/
academic/ sports/seminar/ conference. However, there is no evidence
led by the prosecution in the chargesheet which suggests or indicates
that a religious congregation was being held in the Markaz premises
or that the aggrieved foreign nationals housed at Markaz were found
loitering on the roads, in violation of the aforementioned Orders.
The Ld. CMM ought to have appreciated that the gathering inside
the Markaz despite the lockdown was nothing but force of
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circumstances and falls in the ambit of Right to Shelter enshrined

under Article 21 of the Constitution of India, extendable to both
citizens and foreigners alike.
L. BECAUSE it is noteworthy that the consequential effect of violation
under both Section 144 CrPC and Section 3 of the Epidemic
Diseases Act, 1897 is punishable u/s 188 IPC. However, there is an
embargo under Section 195(1)(a)(i) CrPC thereby prohibiting the
Magistrate from taking cognizance of an offence u/s 188 IPC, in
absence of a prompt written complaint of the public servant to the
Magistrate concerned.
M. BECAUSE the Ld. CMM-SE in the impugned order places reliance
Vishal Aggarwal v. Chhattisgarh State Electricity Reliance is
further placed on decision of the Hon’ble High Court of Board.,
(2014) 3 SCC 696 . However, the same is differentiated on the
grounds that in the present case there is no separate complaint made
to the Ld.CMM-SE and the same is simply included in the
chargesheet. Jeevanandham v. State of Madras., Crl. OP (MD)
No. 1356/2018, wherein while issuing guidelines to deal with
offences charged u/s 188 IPC, the Hon’ble High Court explicitly
barred even registration of FIR by the Police for any offences falling
between 172 to 188 of IPC and further held that there shall not be
any delay in the public servant addressing a complaint in writing to
the Magistrate for the same.
N. BECAUSE in the present case, the Ld. CMM erred in overlooking
that promptness in setting criminal justice system in force is the
bulwark of the Constitution and basic tenets of criminal
jurisprudence. The Complainant lodged the complaint to P.S. Crime
Branch on 31.03.2020, however the Complainant failed to furnish a
complaint to the Ld. Magistrate, in compliance with Section 195(i)
(a) CrPC. The prosecution has placed a copy of the complaint u/s
195(i)(a) CrPC dated 23.05.2020 along-with the chargesheet (@492-
494 of the chargesheet, Documents, Vol.1), the Prosecution cannot
belatedly take advantage of the same.
O. BECAUSE under Section 190(i)(a), CrPC, Magistrate takes
cognizance of an offence on a complaint, whereas under Section
190(i)(b), he is authorized to take cognizance on a police report.
 11

Plethora of authoritative decisions of the Hon’ble Apex Court

reaffirmed the trite law that Magistrate is not bound to take
cognizance on a complaint. Furthermore, that the Code of Criminal
Procedure, 1973 has consciously differentiated between a Complaint
and a Police Report and he also emphasized that a complaint does
not include a Police Report, even under the very definition itself.
P. BECAUSE the Hon’ble Apex Court in the decision of C.
Muniappan & Ors. v. State of Tamil Nadu., 2010(9) SCC 567
elucidated that in a case where the charge is levelled u/s 188 of the
IPC, cognizance by the Court, as provided for u/s 195(1)(a)(i) of the
Code, can only be taken on the basis of a complaint in writing by the
public servant whose lawful order has been contravened, and if not,
the whole proceedings stand vitiated. It was thus held:
“20.  Section 195(a)(i) Cr.PC bars the court from taking
cognizance of any offence punishable under Section 188 IPC or
abetment or attempt to commit the same, unless, there is a
written complaint by the public servant concerned for contempt
of his lawful order. The object of this provision is to provide for
a particular procedure in a case of contempt of the lawful
authority of the public servant. The court lacks competence to
take cognizance in certain types of offences enumerated therein.
The legislative intent behind such a provision has been that an
individual should not face criminal prosecution instituted upon
insufficient grounds by persons actuated by malice, ill-will or
frivolity of disposition and to save the time of the criminal courts
being wasted by endless prosecutions. This provision has been
carved out as an exception to the general rule contained
under Section 190 Cr.PC that any person can set the law in
motion by making a complaint, as it prohibits the court from
taking cognizance of certain offences until and unless a
complaint has been made by some particular authority or
person. Other provisions in the Cr.PC like sections
196 and 198 do not lay down any rule of procedure, rather, they
only create a bar that unless some requirements are complied
with, the court shall not take cognizance of an offence described
in those Sections. (vide Govind Mehta v. The State of Bihar, AIR
 12

1971 SC 1708; Patel Laljibhai Somabhai v. The State of

Gujarat, AIR 1971 SC 1935; Surjit Singh & Ors. v. Balbir Singh,
(1996) 3 SCC 533; State of Punjab v. Raj Singh & Anr., (1998) 2
SCC 391; K. Vengadachalam v. K.C. Palanisamy & Ors., (2005)
7 SCC 352; and Iqbal Singh Marwah & Anr. v. Meenakshi
Marwah & Anr., AIR 2005 SC 2119).

22.  In M.S. Ahlawat v. State of Haryana & Anr., AIR 2000 SC

168, this Court considered the matter at length and held as
under:
"....Provisions of Section 195 CrPC are mandatory and no court
has jurisdiction to take cognizance of any of the offences
mentioned therein unless there is a complaint in writing as
required under that section." (Emphasis added)
23.  In Sachida Nand Singh & Anr. v. State of Bihar & Anr.,
(1998) 2 SCC 493, this Court while dealing with this issue
observed as under :
"7. ..Section 190 of the Code empowers "any magistrate of the
first class" to take cognizance of "any offence" upon receiving a
complaint, or police report or information or upon his own
knowledge. Section 195 restricts such general powers of the
magistrate, and the general right of a person to move the court
with a complaint to that extent curtailed. It is a well-recognised
can on of interpretation that provision curbing the general
jurisdiction of the court must normally receive strict
interpretation unless the statute or the context requires
otherwise." (Emphasis supplied)

Q. BECAUSE the Hon’ble Supreme Court while rendering the decision

in the case of Raj Singh vs State [(1998) 2 SCC 391] held that
“From a plain reading of Section 195 Cr.P.C. it is manifest that it
comes into operation at the stage when the Court intends to take
cognizance of an offence under Section 190(1) CrPC.; and it has
nothing to do with the statutory power of the police to investigate
into an F.I.R. which discloses a cognizable offence….In other
words, the statutory power of the Police to investigate under the
 13

Code is not in any way controlled or circumscribed by Section

195 CrPC.”
R. BECAUSE therefore, the charges u/s 3 of the Epidemic Diseases
Act, 1897 and Section 188 IPC are not made out qua accused herein,
and furthermore, the belated complaint dated 23.05.2020 addressed
to the Ld. CMM-SE and placed within the chargesheet is not
maintainable in light of the bar operating u/s 195(1)(a) CrPC.
Charges levelled u/s 51 of the Disaster Management Act, 2005
S. BECAUSE there is an embargo u/s 60 of the Disaster Management
Act prohibiting cognizance by any Court except on a complaint by
the (a) National Authority, State Authority, Central Government,
State Government or any other authorized authority, (b) any person
who has given notice of not less than thirty days in the manner
prescribed, of the alleged offence and his intention to make a
complaint to the National Authority, the State Authority, the Central
Government, the State Government, the District Authority or any
other authority or officer authorised as aforesaid.
T. BECAUSE in the instant case, the Delhi Government made a
complaint to the DCP, P.S. Crime Branch on 23.05.2020(@488-490
of the Chargehseets, Documents, Vol.1) seeking cognizance to be
taken, however no such complaint was formally made to the Ld.
CMM-SE by the concerned authority. Hence, the prosecution herein
has failed on the accord of procedure irregularity.
U. BECAUSE that insofar as allegations levelled u/s 51 of the Disaster
Management Act, 2005 are concerned, the nation-wide lockdown
orders came into effect from 25.03.2020, which encapsulated
punishment for contravention of the lockdown orders u/s 51 of the
Disaster Management Act, 2005, besides legal action u/s 188 IPC
and the Accused Person cannot be charged under the aforementioned
sections belatedly with an attempt to bring events prior to
25.03.2020 within the ambit of the aforementioned charges, doing so
would blatantly violate Article 20 of the Constitution in letter and
spirit. The allegations levelled in the Impugned Order qua foreign
nationals have been manufactured only for bringing the allegations
within the four corners of criminal offence even when they are
patently false and unsubstantiated.
 14

V. BECAUSE even on merits, without admitting to the veracity of the

allegations levelled in the Impugned Order, it is the humble
submission of the Accused Person that with the total ban on
movement on 22.03.2020 (Janta Curfew), Imposition of section 144
of the Code in New Delhi on 24.03.2020, and complete nation-wide
lockdown directed by the MHA w.e.f. 25.03.2020, rendered the
foreign nationals remediless and assuming but not admitting, there
was no recourse but to continue staying inside the Markaz until
taken into institutional quarantine.
W. BECAUSE in the light of the abovementioned, charge u/s 51 of the
Disaster Management Act, 2005 for merely residing inside
Nizamuddin Markaz, under force of circumstances is wholly
unwarranted and is not made out qua accused herein.
Charges levelled u/s 269 IPC
X. BECAUSE lastly, the final reports filed under the Impugned Order
further levels charges u/s 269 IPC qua foreign nationals, is not made
out, as being wholly unwarranted and devoid of any evidence to
substantiate the same. Upon a bare reading of the aforementioned
sections and considering the ingredients, prima facie the offences
under the aforementioned sections fail to be attracted or constituted
qua foreign nationals, and further lead to prejudice and
stigmatization of the aforesaid persons, thereby violating their Right
to Dignity embodied under Article 21 of the Constitution of India.
The relevant sections are reproduced hereunder:
Section 269: Negligent act likely to spread infection of
disease dangerous to life.—Whoever unlawfully or
negligently does any act which is, and which he knows or has
reason to believe to be, likely to spread the infection of any
disease dangerous to life, shall be punished with
imprisonment of either description for a term which may
extend to six months, or with fine, or with both.
Y. BECAUSE insofar as Sections 269 of the IPC is concerned, without
admitting to the charges, it is the humble submission on behalf of the
Accused Person that the aforesaid charges are not made out qua the
foreign nationals on the following two grounds:
 15

(i) In order for the accused herein to be allegedly deemed as

‘negligent’ in spreading the infection, the ‘knowledge’ of
‘being’ infected with the disease and spreading the same
would be an imperative condition as the bare reading of the
sections makes reference to ‘knowledge’ or ‘reason to
believe’. Hence, in the prevailing circumstances qua the
foreign nationals in question, it is not the case that the even
the persons who tested positive had alleged to have
knowledge and were deliberately spreading the alleged
infection.
(ii) Furthermore, the ingredients constituted in Sections 269 of
IPC cannot be attracted as blanket charges against persons
who neither contracted nor were carriers of the disease. The
accused herein tested Covid-19 negative in the first instance.
Z. BECAUSE the Ld. CMM-SE failed to appreciate that the allegations
levelled qua accused herein contending failure to adherence to social
distancing cannot be sustained due to lack of evidence, photographic
or otherwise. The allegations in this regard are nothing but bald,
unsubstantiated statements.
AA. BECAUSE in the light of the above, the Ld. CMM-SE erred
in framing charge u/s 269 IPC, in the absence of prima facie
ingredients of the offences being made out.
BB. BECAUSE the instant case is a classic example of case
wherein unsubstantiated allegations have been embellished and
exaggerated with most of falsehood added to a grain of truth. Unless
this Hon’ble Court protects the honour and dignity of the Accused
Person by intervention at this stage, even his acquittal will not wipe
out the ignominy and stigma caused by ordeal of facing criminal
trial.
CC. BECAUSE taking cognizance and consequent framing of
charge of an offence on the basis of allegations in the complaint
which do not constitute an offence, is illegal. The issue of process
and the consequential trial on the basis of such cognizance would be
nothing short of an abuse of process of law. Moreover, the history of
personal liberty is largely the history of insistence on observance of
procedure. The Hon’ble Supreme Court has repeatedly held that the
 16

observance of procedure has been the bastion against want on

assaults on personal liberty. Though our country is taking singular
pride in the democratic ideals, yet, the most cherished of these ideals
is personal liberty which cannot be allowed to be taken away at the
whims and fancies of the investigating agencies.
DD. BECAUSE the Ld. CMM-SE failed to appreciate that
Hon’ble Apex Court in the case  Dipakbhai Jagdishchandra Patel vs
State of Gujarat and Another, decided on 24.04.2019 in Criminal
Appeal No. 714/2019 made observations regarding the law relating to
framing of charge and discharge and has held that all that is required is,
that the Court must be satisfied that with the material available, a case
is made out for the accused to stand trial. A strong suspicion suffices.
However, a strong suspicion must be founded on some material. The
material must be such as can be translated into evidence at the stage of
trial. Furthermore, the Hon’ble Supreme Court in the matter of Union
of India vs. Prafulla Kumar Samal and Ors., AIR 1979 SC 366 has
held that the Court has the power to sift and weigh the evidence for the
limited purpose of finding out whether a prima-facie case against the
accused is made out or not. It has been further held that where the
materials placed before the Court disclosed a grave suspicion against
the accused, which has not been properly explained, the Court will be
fully justified in framing a charge and proceeding with the trial. By and
large, however, if two views are equally possible and the Judge is
satisfied that the evidence produced before him gives rise to some
suspicion, but not grave suspicion against the accused, he will be fully
within his right to discharge the accused. It is a settled law that the
presumption howsoever strong cannot take place of proof.
EE. BECAUSE the extent and scope of revisional jurisdiction
enshrined u/s 397 CrPC has been elucidated by the Hon’ble Supreme
Court in the matter Amit Kapoor v. Ramesh Chander., (2012) 9
SCC 460 whereby the Hon’ble Court upheld the validity of
revisionary powers u/s 397 CrPC applicable to even an order of
framing of charge, in the event of finding recording on basis of no
evidence or ignorance of material evidence or, perverse or arbitrary
exercise of judicial discretion.
 17

FF.BECAUSE it is undisputable that the Order of framing of charges

substantially affects a person’s liberty and it cannot be said that the
Court must automatically frame the charges merely because the
prosecuting authorities by relying on the documents referred to in
the charge-sheet, considers it proper to institute the case.
GG. BECAUSE the Hon’ble Apex Court while rendering the
decision in Birochh Bhuian v. State of Bihar., AIR 1963 SC 1120
held that ‘charge is not an accusation made or information given in
abstract but an accusation made against a person in respect of an act
committed or omitted in violation of a penal law forbidding or
commanding it.’ Furthermore, it is a trite law that warrants the Ld.
Court to exercise judicial application of mind while framing of
charges u/s 240 CrPC. The Hon’ble Division Bench of the Calcutta
High Court in Sati Kanta Guha v. State of West Bengal., 1977 Cri
L.J. 1644 held that ‘Section 239 read with Section 240 of the Code
of Criminal Procedure, 1973 is a precious safeguard so to express a
pre-battle protection conferred by the Parliament in its wisdom
upon the accused persons charge-sheeted by the police for trial in a
Court without collecting and collating material sufficient to warrant
a full-fledged trial.’
HH. BECAUSE a criminal trial cannot be allowed to assume the
character of a fishing and roving enquiry. It would not be
permissible in law to permit a prosecution to linger, limp and
continue on the basis of a mere hope and expectation that in the trial
some material may be found to implicate the accused. Such a course
of action is not contemplated in the system of criminal jurisprudence
that has been evolved by the courts over the years. A criminal trial,
on the contrary is contemplated only on definite allegations, prima
facia, established the commission of an offence by the accused
which fact has to be proved by the leading unimpeachable and
acceptable evidence in the course of the trial against the accused.
(RP Kapur v State of Punjab AIR 1960 SC866, St of Karnataka v
L. Muniswamy (1997)2SCC699, Century SPG. & MFG. co Ltdv St
of Maha (1972)3SCC282, Padal Venkata Rama Reddy v Kovvuri
Satyanarayana Reddy (2011)12SCC 437, St of Haryana v Bhajan
Lal (1992) Suup (1) SCC335 or 2012 (1)SCC (Cri) 603)
 18

3. That the Accused Person herein is of formidable credentials and is law-

abiding persons with immense respect for due process of law. The
accused person has been tormented due to certain false and patently
absurd allegations made by the complainant and as such, if the instant
application is not allowed, the accused person would suffer irreparable
loss.
4. That the Applicant have no other efficacious alternative remedy except
to file the present petition in this Hon'ble Court.
5. That the Applicant have not filed any other similar petition in this
Hon'ble Court or the Supreme Court of India.
6. That the annexure to the present petition are true copies of their
respective originals.

PRAYER

In the light of the abovementioned facts and circumstances of the case this
Hon'ble Court may graciously be pleased to allow the present criminal
revision u/s 397 of the Code of Criminal Procedure, 1973 and set aside
Order dated 24.08.2020 passed by the Ld. CMM-SE, Saket Court and
thereby discharge the accused person u/s 239 of the Code of Criminal
Procedure, 1973 qua FIR No. 63/2020 registered at P.S. Crime Branch.

APPLICANT
THROUGH

ASHIMA MANDLA/ MANDAKINI SINGH

COUNSEL FOR PETITIONERS
117 C.K. DAPHTARY LAWYERS’ CHAMBER BLOCK
OPP. SUPREME COURT OF INDIA
NEW DELHI -110001
+91 9999720092
Dated: 02.09.2020
New Delhi
 19

IN THE COURT OF LD. SESSIONS COURT, SAKET

COURTS,
NEW DELHI
IN THE MATTER OF:
ABDULLA GAIBALLA FADLELMOULA
…APPLICANT/ACCUSED PERSON
VERSUS
STATE OF NCT OF DELHI ..PROSECUTION
(SUDANESE NATIONAL)
AFFIDAVIT

I, Abdullah Jabullah S/o Gaiballa aged about 36 years bearing

nationality of Sudan currently residing at H.no 115, Street Number 11,
Jogabai Extension, Zakir Nagar, Okhla, New Delhi, Delhi 110025 do
hereby solemnly affirm and state as under:

1. That I have filed the accompanying criminal revisional

application in accordance with the provisions of Section 397 of
the Code of Criminal Procedure, 1973.
2. That this is my application made voluntarily without any
influence and pressure.
3. That accompanying application has been read over and
explained to me in vernacular and I understand the contents of
the application thereof and that I am aware of the nature and
extent of punishment provided by law in this case.
4. That the applicant has not previously been convicted by any
Court in any case arising out of the same offences.
 20

DEPONENT
VERIFICATION :
Verified at New Delhi dated 2nd September, 2020 that the contents of
this affidavit are true and correct to the best of my knowledge and
information that I believe to be true. Nothing material to this
application has been concealed from this court.

DEPONENT