Supreme Court lets Tahir Hussain come out of jail for 12 hours daily till Feb 3

NEW DELHI: The Supreme Court on Tuesday granted custody parole to former Aam Aadmi Party (AAP) councillor Mohammad Tahir Hussain in cases related to the 2020 Delhi riots, permitting him to come out of jail for 12 hours every day from January 29 till February 3 to canvas for votes in the assembly elections.

Hussain, who is contesting as an All India Majlis-e-Ittehad-ul-Muslimeen (AIMIM) candidate from Mustafabad constituency, has undertaken to bear the estimated expenditure of a little over ?2 lakh per day to be incurred on his security.

The order came on a plea by Hussain who had sought interim bail in one of the cases registered in connection with the 2020 northeast Delhi riots. But a two-judge bench last week delivered a split verdict, and the case was put before a three-judge bench.

On Tuesday, senior advocate Siddharth Agarwal appearing for Hussain told the bench that he was not pressing for interim bail as the last date for campaigning was nearing. Instead, Agarwal sought custody parole and offered to give an undertaking to bear the expenses, refrain from speaking about the cases against him and stay at a location not being his original house.

A bench of justices Vikram Nath, Sanjay Karol and Sandeep Mehta directed that Hussain would not visit his original home at Karawal Nagar or speak to the media about the pending cases against him. He was permitted to visit the AIMIM office and address meetings within his constituency. In addition, he was directed to make an advance deposit of expenses for two days at a time, with the first tranche to be paid by 6pm on Tuesday.

“Considering the peculiar facts and circumstances of the case, we issue direction that the petitioner be released for the day as per timing prescribed in the Jail Manual from January 29 till February 3 upon the deposit of expenses for two days… ?2,07,429 per day approximately.” These expenses included the cost of the police personnel, escort vehicle and the jail van in which Hussain will be taken. Similarly, the expenses for the remaining period will be deposited before the expiry of the next two days and for the last two days, the order said.

As per the undertaking, Agarwal informed the court that Hussain will remain at an alternative location and will also provide for the stay of the police personnel deputed for his security.

Additional solicitor general (ASG) SV Rajju appearing for the Delhi police had objected to the grant of custody parole, saying it would be treated as a precedent. He said that Jail Manual requires a prisoner to be produced back in jail before sunset (6 pm) and the 24-hour expenses per day during parole will come to over ?4 lakh. Since Hussain was allowed to remain out for 12 hours, the amount was halved.

Hussain approached the court in connection with a riots case where he is accused of instigating the mob for the murder of a former IB staffer Ankit Sharma. Besides, he is in jail for two other cases relating to the probe into the larger conspiracy behind the riots and a money laundering case probed by the Enforcement Directorate. In all, there are 11 cases against him of which he has obtained bail in 9 riots-related cases.

At Tuesday’s hearing, Agarwal submitted to the court, “I am faced with a peculiar situation as the canvassing for elections will come to an end on February 3. There are hardly any days left. Allow me to be taken into custody so that I may connect to the electorate.”

Agarwal cited the custody parole granted to him earlier by the Delhi high court enabling him to file his nomination. “Granting me custody parole will be a balancing act for everybody. I will be allowed as much play of my rights to meet my electorate. I will stay in a hotel in my constituency and will not visit my house. This will take care of the interest of the investigation agency.”

The court observed, “What we need to consider is whether you must come out at this stage. Even custody parole will be a risk.”

Additional solicitor general (ASG) SV Raju appearing for the Delhi police opposed Hussain’s request claiming that this would be setting a wrong precedent with every undertrial moving an application to get bail on this ground.

In response, the top court noted that Hussain “had been in politics for a long time and was in public service having served as a councillor”.

The law officer claimed that hardly any canvassing could be done with just three days remaining when a candidate needs to nurture a constituency for several years. “That is for the electorate to decide,” the bench remarked.

The matter was heard on January 22 by a bench of justices Pankaj Mithal and Ahsanuddin Amanullah. After an elaborate hearing, justice Mithal dismissed the bail plea noting the serious charge against him, the pending money laundering case against him in which he is yet to get bail, strong possibility of witnesses being tampered or influenced, and the possibility of the relief being misused in future by undertrials who may stand for elections and seek interim bail to contest and canvas for polls.

On the other hand, justice Amanullah felt that grave and serious charges cannot be the sole basis to deny bail as the charge, howeversoever serious, was merely an allegation till it was proven during trial. The judge, noting the long period of incarceration since March 2020 and the slow pace of trial, granted interim bail to Hussain till the forenoon of February 4 on the condition that he will not speak about the cases or incidents related to the 2020 riots during campaigning. He was directed to remain within the confines of Mustafabad constituency and surrender before the jail authorities before the expiry of the bail term.

Justice Mithal observed in his order, “In the event interim bail is to be allowed for contesting elections, it will open a Pandora’s Box. As such, elections in our country are throughout the year and every undertrial will come and say that they want to contest elections. This may open a floodgate of litigation and this cannot be permitted.”

In a separate opinion, justice Amanullah agreed with justice Mithal’s concern but answered it by saying, “I would therefore, necessarily, insert the caveat that this judgment has been passed in facts and circumstances specific to this case. Were any litigant, in futuro, to cite this in a later case, I am sure the court concerned would examine such case on its merits and on its own factual prism.”