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Synopsis

The Supreme Court of India on Tuesday granted custody parole to Delhi riots 2020 accused and former AAP councillor Tahir Hussain, allowing him to campaign for the upcoming Delhi Assembly polls as an All India Majlis-e-Ittehadul Muslimeen (AIMIM) candidate.

A three-judge bench comprising Justices Vikram Nath, Sanjay Karol, and Sandeep Mehta passed the order after a two-judge bench of the court had pronounced a split verdict in the case.

According to the order, Hussain will be released on custody parole for 12 hours during the daytime, as per the Jail Manual from January 29 to February 3 for campaigning. 

"The petitioner will be released for the day as per the timings of the Jail Manual from January 29 to February 3, upon deposit of expenses amounting to half of what is indicated in the chart, which is Rs 2,47,000," the court directed.

Further, the court directed that Hussain shall bear all expenses for his custody parole, including the Delhi police officials to be deputed, the jail van, and escort expenses.

Earlier Hearing

When the matter was taken up earlier today in the morning, the three-judge bench had asked the Additional Solicitor General S.V. Raju, appearing for the Delhi Police, to come back with instructions regarding the security arrangements and the approximate expenses if Hussain is to be granted custody parole.

Senior Advocate Siddharth Agarwal, appearing for Tahir Hussain, while emphasising that only a few days are left for the elections, said, "I’m restricting my prayer today. Please allow me custody parole for four days to connect with my electorate."

However, ASG S.V. Raju responded, "There are other cases where he is still not on bail. Even if interim bail is granted in this case, he may not receive a similar order in the other cases. His role is major, as his house was the epicentre of all the events. From his terrace, a large number of missiles were thrown. During these riots, 53 people died, and in this case, an IB officer lost his life. Therefore, my Lordships..."

Upon hearing this, the court asked Senior Advocate Siddharth Agarwal, "Even if you are granted bail, how will you be released in the other two cases?" In response, Agarwal said that applications for relief in the other cases have already been filed and are pending for consideration.

Notably, Hussain had approached the top court seeking interim bail in a case related to the Delhi riots against him, in which an Intelligence Bureau (IB) officer had died.

Split Verdict

On 22 January, the Supreme Court of India had pronounced a split verdict in a plea moved by All India Majlis-e-Ittehadul Muslimeen (AIMIM) candidate and Delhi riots accused Tahir Hussain, seeking interim bail for campaigning ahead of the Delhi Assembly polls.

While hearing Hussain's plea against the Delhi High Court's order, which granted custody parole but denied him interim bail, a bench of Justices Pankaj Mithal and Ahsanuddin Amanullah passed a split verdict. While Justice Pankaj Mithal dismissed the petition, Justice Ahsanuddin Amanullah allowed Hussain interim bail. In view of this, the registry was accordingly directed to place the matter before the Chief Justice of India for his consideration or to refer the matter to a larger bench.

In delivering the verdict, Justice Pankaj Mithal highlighted that the present case pertains to the murder of Ankit Sharma, an Intelligence Bureau official under the Ministry of Home Affairs, adding that the allegations if considered cumulatively, are very serious.

"The petitioner argues that a mere grant of custody parole for nomination is not sufficient if the petitioner is not allowed to canvass. Undisputedly, the petitioner’s right to contest elections is protected; however, the right to canvass is neither a fundamental nor a statutory right. It lies solely at the discretion of the court whether the petitioner can be allowed to be released for the above purpose," Justice Mithal added.

While warning against interim bail, Justice Mithal said such a situation would open a pandora's box, as elections are held throughout the year. He added that this would enable every undertrial prisoner to come before the court to contest elections, leading to a floodgate of litigation, which cannot be permitted.

"Moreover, permitting interim bail will necessarily imply that the petitioner would engage in door-to-door canvassing and other physical methods of campaigning. This would include holding meetings in the locality and visiting voters door-to-door. It must be noted that the incident in question occurred in the same locality. If the petitioner moves around the locality, there is a high possibility of witness tampering," Justice Mithal further went on to observe.

He further emphasised that a chargesheet had been filed and that the petitioner’s role in the commission of the crime had been established. He added that the petitioner’s house was being used as an epicentre for the commission of the crime.

On the other hand, Justice Ahsanuddin Amanullah acknowledged that Tahir Hussain had been incarcerated for almost five years, making it reasonable to give him a chance for the remaining few days to convince the electorate.

"I have examined the allegations against the petitioner, and no doubt they are grave and serious. However, it is settled law that the magnitude of the offence and its gravity are not the only criteria for bail cases. I am of the considered view that, subject to appropriate conditions, the petitioner shall be enlarged on interim bail, " Justice Amanuallah ordered.

On 15 January 2025, the Delhi High Court had granted custody parole to Tahir Hussain to allow participation in the electoral process for the Assembly Elections from Mustafabad Constituency. The bench of Justice Neena Bansal Krishna held, “Merely because the Applicant/Petitioner had earlier been a Municipal Councilor, cannot be a peculiar circumstance entitling him to grant of Interim Bail”. 

In April last year, a Delhi Court had denied bail to Hussain, while determining that there were reasonable grounds to believe the accusations against Hussain were prima facie accurate. The Bench also noted that Hussain, allegedly involved in the riot's conspiracy, not only financially supported riotous activities but also actively participated in actions leading to the riots.

Case Title Mohd Tahir Hussain v State of NCT of Delhi