Supreme Court Delivers Split Verdict On Tahir Hussain's Plea Seeking Interim Bail For Delhi Elections

A two-judge bench of the Supreme Court on Wednesday(January 21) pronounced a split verdict on the petition filed by Delhi riots case accused Tahir Hussain seeking interim bail to campaign for the Delhi Assembly elections.While Justice Pankaj Mithal dismissed the petition, Justice Ahsanuddin Amanullah allowed Hussain interim bail. In view of the divergence, the Registry was directed to place the matter before the Chief Justice of India either to refer the matter to a third judge or a larger bench.The bench comprising Justice Pankaj Mithal and Justice Ahsanuddin Amanullah was hearing Hussain's Special Leave Petition challenging the Delhi High Court's order which refused him interim bail and granted only a custody parole to file nomination to contest from the Mustafabad constituency to the Delhi Legislative Assembly.The order was passed in the case related to the murder of Intelligence Bureau (IB) staffer Ankit Sharma during the 2020 North-East Delhi riots.Will open Pandora's box : Justice Mithal's orderJustice Mithal in his order observed that the right to contest in elections is not a fundamental right. Also, the right to contest the elections has been protected by the High Court's order granting custody parole to file nominations. Justice Mithal observed that allowing interim bail on this ground can open a "Pandora's box" as every undertrial would take this ground."In the event interim bails are to be allowed for purposes of contesting elections, it will open a Pandora's box. Since elections are all year round, every undertrial would come with the plea that he wants to participate in elections and therefore be granted interim bail. This would open floodgates, which in our opinion can't be permitted. Secondly, once such right is recognised, as a sequel, the petitioner would ask for right to vote, which is circumscribed by Section 62 of the Representation of Peoples Act"Release on interim bail for canvassing will amount to allowing the accused to go for door-to-door canvassing and hold meetings in the locality where the crime took place and witnesses reside. Hence, there is a high possibility of the accused meeting the witnesses. The chargesheet reveals serious allegations against the accused and that the rooftop of his house/office was used as the "epicentre" for the offences."It may also be worth mentioning that canvassing for 10-15 days would not suffice the purpose in as much as a constituency has to be nurtured for years, for contesting. If petitioner had not nurtured it for the past few years sitting in jail, there is no reason why he should be released," Justice Mithal observed.Justice Amanullah's orderJustice Amanullah, while acknowledging that the allegations are grave and serious, stated that they remain as only allegations at the present moment. On the short point of the period undergone under custody(five years) and the fact that bail has been granted in other cases, interim bail can be granted till February 4, 2024, subject to the conditions in Section 482 and 484 BNSS 2023.Hussain should not raise the issues in the FIRs during his campaigning. He should surrender by the noon of February 4, 2024.What transpired during the hearingAdditional Solicitor General SV Raju, appearing for the Delhi Police, submitted that the regular bail application is pending in the Delhi High Court. The ASG further submitted that Tahir Hussain formerly belonged to the Aam Aadmi Party and a different party (AIMIM) has given him a ticket this time. The ASG further said that a candidate seeking to contest elections has to nurture the constituency for the past five years and cannot seek to contest at the last moment. With these arguments, the ASG said that "campaigning for elections" was only a ruse to get interim bail."This is a gimmick for getting bail. Everyone will say we want to canvass (elections)...rapists will apply...look at the number of cases," ASG said. The ASG further argued that the allegations against Hussain were serious. "Public servents were injured. His role is quite significant. He was the command centre. Weapons were found in his house," he said.Justice Amanullah observed that the Court was of the tentative view that the balance was in favour of Hussain, especially since the High Court itself has found that he can be given custody parole for filing nominations. He opined that the High Court took a "half-hearted view". The Judge also pointed out that the Election Commission of India has certified that Hussain does not suffer from any disqualifications.ASG argued that allowing the filing of nomination was different from allowing bail for campaigning. "Allowing him to file nomination has nothing to do with allowing him to canvass for elections...he would interact with large no. of persons and can influence witnesses. People canvass from jail also. Nomination does not give right to canvass, when you are in jail," ASG said.ASG also pointed out that Hussain is an accused in the case under the Unlawful...

Supreme Court Delivers Split Verdict On Tahir Hussain's Plea Seeking Interim Bail For Delhi Elections

Debby Jain

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