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

Debby Jain

22 Jan 2025 2:44 PM IST

  • Supreme Court Delivers Split Verdict On Tahir Hussains 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...

    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 order

    Justice 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 order

    Justice 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 hearing

    Additional 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 Activities Prevention Act related to the alleged larger conspiracy behind the Delhi riots and even if he is granted bail in the present case, he would not get out since his custody will continue in the UAPA case. Interim bail for election campaigning is not permissible under the UAPA because of the bar under Section 43D5. ASG further informed that Hussain was an accused in a money laundering case as well, where the bar under Section 45 PMLA will apply against interim bail. 

    "He cannot get interim bail in those cases unless he satisfies the stringent conditions in 43D5 and 45," he submitted.  If Hussain is not anway going to come out, then why take the exercise in the present case, the ASG asked.

    Justice Amanullah however said that the bench cannot pre-judge what would happen in the other pending cases and can only consider the matter which is presently before it. Senior Advocate Siddharth Agarwal, for Hussain, informed the bench that regular and interim bail applications are pending in the UAPA and PMLA cases.

    Justice Mithal asked Agarwal if the grant of interim bail wouldn't be an "academic exercise" or "futile exercise" since Hussain would not come out due to the pendency of UAPA and PMLA cases.

    Agarwal submitted that the present case has to be decided on its own merits. He cited the precedent of the Supreme Court granting bail to Arvind Kejriwal in the PMLA case despite the pendency of the CBI case.

    Opposing the plea, ASG Raju said :

    "There is no fundamental right to canvass. The party has given him a ticket knowing that he is in custody. The party can canvass for him. Also, there are witnesses in this very same locality where is standing for elections. There is a possibility of tampering of evidence. There is a possibility that he may influence witnesses. It is a mixed locality and a large number of witnesses are residing there. The release can be hazardous to the trial. The condition that he should not meet witnesses cannot be imposed because allowing bail for campaigning means he can meet people and address crowds."

    ASG also referred to Section 62 of the Representation of the Peoples Act which prohibits a person in prison from voting. "If a person can canvass, ordinarily he can vote for himself. But RP Act says he can't...right to vote is taken away by statute."

    Hussain's winning chances 'bleak' : ASG

    ASG further said that Hussain's original party, AAP, rejected him and he has found "solace" in another party, which may not be having much influence in Delhi. Therefore, the winning chances of Hussain are very "bleak". Contrasting with Arvind Kejriwal's case, the ASG said that Kejriwal was the national convenor of a national party.

    On the question of comparative hardship, the ASG said that no prejudice is caused by the denial of interim bail as Hussain's agents can still canvass for him. On the other hand, the grant of bail might be prejudicial to the trial, especially when it was a case where several persons were killed, including public servants and Hussain's home was the "epicentre" of violence.

    When the ASG reiterated that one cannot win elections like this without nurturing the constituency for years, Justice Mithal agreed, saying, "That's true. It needs years of work."

    Justice Amanullah said that it was a question of creating a "level playing field" and asked if discretion was exercised to give the half-benefit of custody parole, then why not give the full benefit?

    Judge questions delay in riots case trial

    Justice Amanullah asked when the chargesheet was filed in the case. When the ASG replied that it was filed in June 2020, Justice Amanullah asked why the trial had not progressed in five years and pointed out that only five witnesses have been examined so far. Justice Amanullah cautioned that he may have to go into these difficult questions and write about the conduct of the prosecution. "We cannot shut our eyes, if we go into these questions, it will entail a comment. What is your conduct?"

    "All this has to be looked at. You can't castigate somebody like this! He has not been out of jail even for a day in 5 years. I will have to write on this also [in my order]. We can't shut our eyes. What is Article 21 of the Constitution for? For five years, you have not even examined your star witness, and he is out of Delhi! We don't want to comment further" Justice Amanullah said.

    ASG requested time to get instructions on the issue of the trial. However, the bench refused, saying that it had given sufficient opportunities.

    In his turn, Agarwal highlighted that Hussain has been under custody for over 5 years. He said that on the day of the incident, he had made several calls to the PCR for help.

    "They rely on UAPA case. Charge is not framed in that case. State has not complied with its duty. I am only asking for 15 days' bail. Insofar as recovery of weapons, that was a separate FIR in which bail granted and no challenge made," Agarwal said. Even in PMLA/UAPA cases with stringent bail provisions, the Supreme Court has granted bail citing the delay in the trial, Agarwal pointed out relying on judgments like Manish Sisodia. He added that eight co-accused in the case, including two who are alleged to be the main assailants, have got bail.

    Justice Amanullah said that the chargesheet also referred to the PCR calls made by Hussain. ASG said that the accused was playing "smart" by making PCR calls to create a defence and added that there were videos showing violence.

    When Justice Amanullah again criticised the delay in the trial, ASG said that certain witnesses had turned hostile. Both Justices Mithal and Amanullah asked how Hussain can be responsible for witnesses turning hostile as he was under custody. Agarwal then said, "When you record 161 statements wrongly, witnesses will turn hostile. When you over-implicate, witnesses will turn hostile. I have been under their custody for five years and now they want to blame me for witnesses turning hostile!" 

    Case : MOHD TAHIR HUSSAIN Vs STATE OF NCT OF DELHI | SLP(Crl) No. 856/2025

    Citation : 2025 LiveLaw (SC) 106

    Click here to read the order

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