Supreme Court delivers split verdict on Tahir Hussain’s plea for interim bail to campaign for Delhi polls

In airy of the contrasting opinions, the substance volition present beryllium placed earlier the Chief Justice of India for allocation to a larger three-judge bench.

Hussain sought interim bail from January 14 to February 9 to enactment successful the Assembly elections arsenic a campaigner from Mustafabad. On January 14, the precocious tribunal refused to assistance him interim bail but allowed him custody parole to record his nomination.

Dismissing the interim bail plea, Justice Mithal said, “most of the cases against the petitioner are successful respect of riots successful Delhi during the period of February 2020 and successful galore of them, helium had been granted bail. Nonetheless, the contiguous lawsuit pertains not lone to rioting, but besides the execution of 1 Ankit Sharma, an authoritative of the Intelligence Bureau of the Ministry of Home Affairs, Government of India.”

The justice said “the allegations against the petitioner, if considered cumulatively oregon adjacent independently successful the contiguous FIRs, are of a precise superior nature”. “And it has travel connected grounds that galore worldly witnesses, particularly successful transportation with FIR 65, are yet to beryllium examined,” helium added.

Justice Mithal said that portion disallowing interim bail, the precocious tribunal “has protected the close of the petitioner to contention the election, arsenic helium has been granted custody parole conditionally for subscribing the oath and completing formalities successful respect of filing information papers”.

The verdict said that Hussain “is an Indian national and his rights arsenic a national are to beryllium respected”. “Nonetheless, arsenic the petitioner is progressive successful 11 cases, including the 1 successful question and others nether PMLA, his bona fides arsenic a national get diluted,” it further said.

The verdict besides held that information successful elections is not a cardinal close and that the close to canvassing is neither a cardinal close nor recognised nether immoderate statute.

‘Pandora’s box’ and ‘floodgate of litigation’

Justice Mithal said, “Normally, if specified a plea is raised, the enactment is permitted to record nominations but not to canvass. This is what has been done successful the contiguous lawsuit arsenic well. In the lawsuit interim bails are allowed for the intent of contesting election, it volition unfastened a Pandora’s box. And since elections successful the state are each the twelvemonth round, each undertrial would travel up with the plea that helium wants to contention and enactment successful the predetermination and truthful helium whitethorn beryllium granted interim bail. This volition unfastened a floodgate of litigation, which speaking for myself, cannot beryllium permitted.”

He added, “Secondly, erstwhile specified a close is recognised, the sequel of it would beryllium that the petitioner would besides inquire for the close to vote, which different is besides a legally recognised close but is circumscribed by conception 62(5) of the Representation of the People Act, which lays down that nary idiosyncratic shall ballot astatine immoderate predetermination if helium is confined successful situation oregon is successful the lawful custody of the police. Permitting interim bail would needfully connote granting the close to ballot to specified a person.”

Justice Mithal further said, “Moreover, permitting merchandise connected interim bail for the intent of canvassing amounts to permitting the petitioner to bash door-to-door canvassing and different carnal canvassing. This would mean that the petitioner would beryllium holding meetings successful the locality and visiting the voters doorway to door.”

The tribunal pointed retired that since the incidental occurred successful the aforesaid locality, if the witnesses are besides from that area, allowing Hussain to canvass freely could pb to him moving into the witnesses.

Allowing Hussain’s plea for interim bail, Justice Amanullah said, “I person examined the allegations against the petitioner. No uncertainty they are sedate and reprehensible, but arsenic of this moment, they are precisely that—allegations. It is settled instrumentality that the magnitude and gravity of the offence alleged are not grounds successful itself to contradict bail. No tribunal of instrumentality has rendered adjudication thereon.”

The justice noted that “the petitioner has been successful custody since March 2020. He has secured bail successful the bulk of the cases”. “The High Court has already permitted him to record his information and consequently basal arsenic a candidate,” helium added.

Justice Amanullah added, “On the abbreviated constituent of the play nether custody already undergone, arsenic besides the bail secured successful the different cases, I americium of the considered presumption that taxable to due conditions being imposed, the petitioner tin beryllium granted interim bail for a constricted period.”

Justice Amanullah directed that Hussain beryllium enlarged connected interim bail until noon connected February 4, taxable to conditions.

“Additionally, helium would beryllium nether strict work not to rise the contented of immoderate of the FIRs oregon the incident. He should besides promptly surrender latest by noon connected February 4, 2025, earlier the jailhouse authorities concerned,” the justice directed.