New Delhi: A two-judge bench of the Supreme Court delivered a split verdict on Wednesday (January 22). on a petition by Tahir Hussain, accused in the 2020 Delhi riots case, seeking interim bail to contest the Delhi assembly elections.
Justice Pankaj Mithal dismissed the petition, while Justice Ahsanuddin Amanullah granted interim bail until February 4, subject to certain conditions. Due to the divergence in opinion, the matter will be placed before the Chief Justice of India Sanjiv Khanna for further consideration, Live Law reported.
“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,” Justice Mithal was quoted as saying by Live Law.
Justice Mithal added:
“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 Amanullah acknowledged the gravity and seriousness of the allegations against Hussain, but noted that they remain unproven at this stage. Considering Hussain’s prolonged detention of five years and the grant of bail in similar cases, Justice Amanullah deemed it fitting to grant interim bail until February 4, subject to certain conditions outlined in Sections 482 and 484 of the Bharatiya Nagarik Suraksha Sanhit (BNSS), 2023.
Further, when the court was informed that the chargesheet in the case was filed in June 2020, Justice Amanullah asked “why the trial had not progressed in five years,” adding that “only five witnesses have been examined so far.”
“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 was quoted as saying by Live Law.
Hussain, a former Aam Aadmi Party (AAP) member, is currently in custody and has been fielded by the All India Majlis-e-Ittehadul Muslimeen (AIMIM) party from the Mustafabad constituency. The Delhi high court had earlier refused him interim bail but granted custody parole to file his nomination.
Also read: Delhi Riots 2020: The Curious Case of Tahir Hussain and Ankit Sharma
During the hearing, additional solicitor general S.V. Raju opposed the plea, arguing that granting interim bail would allow Hussain to influence witnesses and tamper with evidence. He also pointed out that Hussain’s winning chances are “bleak” and that his original party had rejected him.
Senior advocate Siddharth Agarwal, representing Hussain, argued that eight co-accused, including two alleged main assailants, have been granted bail, while his client has been in custody for over five years and that the trial has not progressed significantly. Further, Agarwal underlined that even in Prevention of Money Laundering Act (PMLA) and Unlawful Activities (Prevention) Act (UAPA) cases, which have stringent bail provisions, the Supreme Court has granted bail in the past due to delays in trial, citing judgments such as the one in the Manish Sisodia case.
“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. In so far as recovery of weapons, that was a separate FIR in which bail granted and no challenge made,” Agarwal was quoted as saying by Live Law.
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Hussain, a former AAP councillor from Nehru Vihar, faces charges for the kidnapping and murder of Intelligence Bureau staffer Ankit Sharma during the violence that erupted in North East Delhi in February 2020. Additionally, the police has also slapped cases of rioting and arson against him as visuals surfaced of his building in Khajuri Khas being used to throw stones and petrol bombs during the riots.
