Why It’s Wrong to Invoke ‘Attempt to Murder’ Against Tablighis

To constitute Attempt to Murder, all facets of murder must be satisfied, but for the actual death of the ‘victim’.

People outside the Tablighi Jamaat Markaz in Nizamuddin. Image used for representational purposes.

(Photo Courtesy: Tablighi Jamaat Mewat Facebook Page)

Top officials of several states, including the Chief Minister of Himachal Pradesh and the Home Minister of Haryana, announced that attendees of the Tablighi Jamaat congregation who fail to come forth and disclose their travel history, will be booked for Attempt to Murder under Section 307 of the Indian Penal Code 1860. Following a similar announcement in Uttarakhand, five attendees were booked under Section 307, after they failed to present themselves before the authorities.

The underlying prejudice against a particular community, which has prompted calls for invoking Section 307 only against attendees of the congregation and not against all persons hiding their history of contact with infected persons, needs no explanation.

Arbitrary Invocation of Section 307 of IPC

Such an arbitrary invocation of Section 307 is not only based on an incorrect interpretation of law, but also amounts to an abuse of process. Chapter XIV of the Penal Code titled ‘Offences Affecting the Public Health, Safety, Convenience, Decency and Morals’ contains tailored provisions which criminalise acts likely to spread infection of a diseases that are dangerous to life. Negligently spreading such infections is punishable with imprisonment up to six months under Section 269, while intentionally spreading the infection invites imprisonment of up to two years under Section 270. These Sections have been invoked in the past with respect to small pox and cholera, and were rightly applied against the singer Kanika Kapoor.

Additionally, Section 271 imposes a punishment up to six months for disobedience of any government rule made for regulating travel between places where an infectious disease prevails and other places. In a similar vein, disobedience of an order of a public servant which endangers human life, health or safety is a separate offence under Section 188, and punishable with imprisonment up to six months. Therefore, circumstances such as the present had been envisaged by the drafters of the Penal Code and stand adequately addressed.

The difference in gravity between these offences and Attempt to Murder is evident from the fact that the latter invites imprisonment of up to ten years.

In addition to the longer sentence, accusing people of ‘Attempt to Murder’ has more immediate practical concerns.

Safeguards & Bail Can’t Be Availed By Person Accused of ‘Attempt to Murder’

First, under the Criminal Procedure Code, special safeguards from arrest are available to persons accused of offences punishable with imprisonment of seven years or less, and such persons cannot be arrested by the police merely on its satisfaction that the person has committed the offence.

To affect arrest of such persons, a police officer must be satisfied that the arrest is necessary to prevent the person from committing any further offence, or for proper investigation, or to prevent the accused from tampering with evidence or threatening witnesses, or to secure the presence of the accused in court.

These safeguards cannot be availed by someone accused of Attempt to Murder. Second, offences under Sections 188, 269 and 270 are bailable in nature, which means that any person arrested for these offences must be released on bail by the police. In contrast, Section 307 is non-bailable.

Grant of bail in non-bailable cases is a discretionary power of the court, and in practice, bail is not ordinarily granted to persons accused of serious offences.

Therefore, unwarranted application of Section 307 seriously affects a person’s liberty by making it easier for the police to arrest the person, while simultaneously making it harder for the person to secure release on bail.

Mere ‘Negligence’ Can’t Amount to ‘Attempt to Murder’

Insofar as ingredients of Attempt to Murder are concerned, as per the IPC, a person must do an act (actus reus/ physical element) with the intention of killing someone (mens rea/ mental element) to be liable for the offence. Instances where a pellet fired only grazed against the head of the victim or a firearm injury was inflicted on the shoulder and not a vital part of the body, have been held by the Supreme Court to not meet the requirements of Attempt to Murder.

A bare comparison with such instances brings forth the absurdity of the claims to prosecute Tablighi Jamaat attendees under Section 307.

Both the ingredients of the offence, namely, mens rea and actus reus, are completely absent. First, people hiding have presumably not been tested and would not be aware that they have contracted COVID-19. Thus, these perpetrators are unsure if they are even wielding the weapon with which they supposedly intend to kill. Second, these persons are merely hiding without engaging in any overt act and therefore not even using the weapon that the wield. Such inaction, albeit negligence, cannot amount to attempting murder.

Wrong to Implicate Both Sets: Those ‘Intentionally’ Spreading COVID, & Those ‘Hiding’

Even in circumstances where a person is aware that they suffer from COVID-19 and they intentionally attempt to infect someone, it would be incorrect to invoke Section 307. In order to constitute Attempt to Murder, all facets of murder must be satisfied, but for the actual death of the intended victim. Therefore, the degree of intention required is the same as that for murder, which would only be met if there is a proximate link between the action and the intended consequence of death. For instance, this requirement of proximity has been articulated in the definition of murder as causing such bodily injury as is “sufficient in the ordinary course of nature to cause death.”

It must be pointed out that this is a very high legal threshold and even an injury inflicted on the abdomen with a spear, causing incisions on the liver has been held to NOT be sufficient to cause death in ordinary course.

Given the low mortality rate of COVID-19 infection, it cannot possibly meet the legal standard for Attempt to Murder. Death is not the ordinary consequence of the infection nor is the infection itself sufficient to cause death since numerous other factors such as age and presence of chronic diseases play a determinative role in the survival of an infected patient. Therefore, it would be incorrect to implicate someone who is intentionally spreading the infection under Section 307, let alone people who are hiding.

(Pradyuman Kaistha is a law graduate from NALSAR University of Law, Hyderabad and is presently litigating in New Delhi. This is an opinion piece and the views expressed are the author’s own. The Quint neither endorses nor is responsible for them.)