SC Gives Split Verdict On Delhi 2020 Riots Accused Tahir Hussain's Interim Bail Plea

After a split verdict by a two-judge bench, the matter would be placed before CJI Sanjiv Khanna for the constitution of a new 3-judge bench.

New Delhi:The Supreme Court on Wednesday delivered a split verdict on a plea filed by former councillor and Delhi riots accused Tahir Hussain, who moved the court for interim bail to campaign for the assembly polls in Delhi, slated next month. Violence broke out in northeast Delhi on February 24, 2020, leaving 53 dead and several injured.

The matter was heard by a two-judge bench led by Justice Pankaj Mithal and comprising Justice Ahsanuddin Amanullah. Justice Mithal junked Hussain's plea saying no case was made out, however, Justice Amanullah said that he could be released on interim bail. Delhi police, which was represented by Additional Solicitor General SV Raju and advocate Rajat Nair, vehemently opposed interim bail for Hussain.

After the split verdict by a two-judge bench, the matter would be placed before Chief Justice Sanjiv Khanna for the constitution of a new three-judge bench to decide the issue.

Justice Mithal, in his order, observed that if Hussain were to be released on interim bail, then he would do door-to-door canvassing and hold meetings in the locality where the crime took place and pointed out that witnesses in the case live there.

Justice Mithal said that the right to contest in elections is not a fundamental right, and, citing the Delhi High Court order, added that the right to contest the elections has been protected by granting custody parole to file a nomination. "In the event interim bails are to be allowed for purposes of contesting elections, it will open a Pandora's box," said Justice Mithal, adding that every undertrial would move the court to participate in elections.

During the hearing, Justice Amanullah observed that Hussain has been incarcerated for close to five years and the trial has not been completed. "Only four persons out of five eyewitnesses have been examined. Even all the eyewitnesses have not been examined, why? In five years out of five witnesses you examine only four?," Justice Amanullah asked Raju.

He further queried, "Why after submission of the chargesheet only four witnesses out of five eyewitnesses, main star witnesses, have been examined, why? All these are very uncomfortable questions. This is fact and not merit…..”.

Raju said this is not the only case and there are other cases against Hussain. "He has not been out for even one day, why should we not take notice of all this…you do not have the liberty for unlimited incarceration of somebody..... We cannot shut our eyes to this….", Justice Amanullah told Raju.

Justice Amanullah, in his order, held that Hussain can be released on interim bail subject to certain conditions. He said that it is settled law that the magnitude of offence and gravity is not only criteria for bail cases and subject to appropriate conditions the petitioner be granted bail. "Bail only until the forenoon of February 4, 2025," said Justice Amanullah.

On the aspect of conditions of bail, he added that Hussain would be under a strict obligation not to speak on the Delhi riots cases during his campaign.

Concluding the hearing, Justice Mithal said since the judges on the bench have differed in their opinions, the registry can place this matter before the CJI for the constitution of a new bench.

On Monday, Justice Mithal had remarked that all such persons should be barred from contesting elections. On January 14, the Delhi High Court granted custody parole to Hussain to file nomination papers from the Mustafabad constituency on an AIMIM ticket.

However, the high court declined to entertain his plea for interim bail from January 14 to February 9 to fight the polls, saying the gravity of allegations against Hussain, being the main perpetrator in the violence, resulting in the death of several persons, could not be overlooked.

The high court observed that nearly 11 FIRs were registered against him in connection with the riots and he was admittedly in custody in a related money laundering case and UAPA case. Hussain's counsel had argued that fighting elections was a complicated process, which required him to not only file his nomination by January 17 but also open a bank account and campaign.

The Delhi police, insisting that contesting elections was not a fundamental right, had alleged that Hussain who was the "main conspirator" and "funder" of the February 2020 riots could complete formalities and fight polls on custody parole.