[Delhi Riots] 'Tahir Hussain Acted As Kingpin In Planning, Instigating Flames Of Communal Conflagration', Denies Bail [Read Order]

Quoting a famous English saying, the Additional Sessions Judge Vinod Yadav, Karkardooma Court further remarked,

"When you choose to play with embers, you cannot blame the wind to have carried the spark a bit too far and spread the fire"

Notably, the Court also said,

"It is common knowledge that the dreary day of 24.02.2020 saw parts of North-East Delhi gripped by a communal frenzy, reminiscent of carnage during the days of partition. Soon, the riots spread like wildfire across the smoke-grey skyline of Capital, engulfing new areas and snuffing out more and more innocent lives. The Delhi riots 2020 are a gaping wound in the conscience of a nation aspiring to be a major global power." (emphasis supplied)

It may be noted that the Delhi Police's special cell has charged Hussain with rioting, murder and inciting rioters. He has also been charged with hatching a conspiracy to orchestrate the riots and funding the communal riots.

Arguments put forth

It was submitted by Tahir's Counsel that on 24.02.2020 at around 1.30 PM, a riotous mob had gathered around the of the applicant that had set on fire a bullet motorcycle lying parked outside his house.

Thereafter, the said riotous mob broke the main gate of his house, entered inside and climbed up on to the roof and damaged his house badly.

It was further argued that considering the seriousness of the situation prevalent in the area on 24.02.2020 vis-à-vis threat to his life and the life of his family members, the applicant had made several telephonic calls to SHO, PS Dayalpur and ACP of the area, but none of them answered his calls.

The counsel for the applicant argued that the applicant was falsely implicated in the matter by the investigating agency and his political rivals with the sole purpose of harassing him by abuse of the machinery of law.

It was argued that applicant belongs to "Aam Aadmi Party" and is a "victim of circumstances", as he has been caught up in a political cross-fire and the allegations levelled against him are nothing, but a political blame game to malign his image.

It was also argued that there was an "unexplained delay" of about three days in registration of FIR in the matter, as the alleged incident in the matter took place on 25.02.2020; whereas, the FIR was registered on 28.02.2020.

It was argued that mere presence of the applicant at the spot of the incident is not sufficient to hold that he shared the "common intention" to commit the alleged offence in the matter.

Special prosecutor Manoj Chaudhary, on the other hand, argued that the riots were part of large scale conspiracy hatched at various levels all over Delhi in the aftermath of enactment of Citizenship Amendment Act, 2019 (in short "CAA") and the same did not take place spontaneously.

It was argued that the applicant in furtherance of the criminal conspiracy had instigated the rioters of a particular community and provided logistic support like lathis, dandas, stones, acid bottles, knives, swords, firearms etc. to the rioters at the roof of his house itself.

It was also argued that beside police constables, the accused/applicant was identified by independent witnesses also (at the scene of the crime on the date of incident).

Court's Observations

The Court was of the prima facie view that the "riotous mob" armed with "lethal weapons" had engaged in vandalism, looting and torching of public and private properties and their main objective was to cause maximum damage to the lives and properties of persons belonging to other community.

Therefore, the Court remarked, at this stage, it cannot be said with certainty that the applicant did not have a common object with the other persons of unlawful assembly. The "common object" of this kind of riotous mob can be easily inferred therefrom.

Further the Court said,

"Whether he can be convicted in the matter with the aid of Section 149 IPC is a preposterous conclusion at this stage, as the evidence is yet to be led in the matter. However, from the aforesaid behavior of "riotous mob", the "common object" can be inferred at this stage."

The Court also noted that even if there is no video footage or CCTV footage, showing the presence of the applicant at the spot, but there is enough ocular evidence available on record.

Also, the Court took into account the CDR analysis qua the mobile number belonging to applicant, which confirmed his presence at or around the scene of the crime(s) on the dates of the incident(s).

The Court found substance in the submissions of the Special PP that the applicant claiming parity with the co-accused persons (who have been enlarged on bail in case FIR No.80/2020) is totally illogical "because the role assigned to him in the matters is totally different and distinct from the rest of the co-accused persons".

Importantly, the Court opined,

"At this stage, I find that there is enough material on record to presume that the applicant was very well present at the spot of crime and was exhorting the rioters of a particular community and as such, he did not use his hands and fists, but rioters as "human weapons", who on his instigation could have killed anybody." (emphasis supplied)

The Court was of the view that the allegations against the applicant are extremely grave in nature. Even if there were no direct acts of violence attributable to the applicant, he cannot shy away from his liability under the provisions of the sections invoked against him, particularly on account of the fact that his house/building became the hub/centre point for the rioters and rabble-rousers to unleash the worst communal riots since partition in Delhi.

Significantly, the Court said

"The spread of riots on such a big scale in such a short time is not possible without a premeditated conspiracy. So, when the applicant is at the receiving end now, he cannot pass on the buck by simply taking a plea that since he did not participate physically in the riots, so he has no role to play in the riots." (emphasis supplied)

While denying him the benefit of bail, the Court said,

"In my considered opinion, the statements of witnesses can be said to be delayed when the witnesses are known to the police and yet the police do not record their statements; whereas, in the case of rioting, the police hardly has any idea as to who were the witnesses."

The Court continued by observing,

"Further, people normally do not come forward and it is admitted position on record that on the date of the incident nearly 10,000 PCR calls were recorded in the area of PS Dayalpur. Thereafter, on the basis of these calls, police reverted back and traced out some of the witnesses."

Therefore, the Court concluded that at this stage, it cannot be said that there is a delay in the recording of statements of witnesses by investigating agency.

Lastly, the court opined,

"It is a matter of record that public witnesses in the aforesaid matters are residents of the same locality and if released on bail at this stage, the possibility of applicant threatening or intimidating them cannot be ruled out. Considering the facts and circumstances of the case(s) in totality, I do not find it to be a fit case for grant of bail to the applicant in all the aforesaid three matters. The bail application(s) in all the aforesaid three matters are accordingly dismissed." (emphasis supplied)