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Tahir Hussain to remain in jail as SC delivers split verdict on his interim bail plea

Now, the matter will have to be placed before CJI Sanjiv Khanna to refer it to a three-judge Bench for adjudication
Tahir Hussain in police custody. PTI file
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Former counsellor and AIMIM candidate from the Mustafabad Assembly constituency Tahir Hussain will remain in jail for now as the Supreme Court on Wednesday delivered a split verdict on his petition seeking interim bail to campaign during the ensuing Delhi Assembly elections.

Now, the matter will have to be placed before Chief Justice of India Sanjiv Khanna to constitute a three-judge Bench for adjudication of the matter.

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While Justice Pankaj Mithal dismissed Hussain’s plea, Justice Ahsanuddin Amanullah allowed it. Noting that the right to contest elections was not a fundamental right, Justice Mithal pointed out that the right to contest the elections has been protected by the High Courts order by granting custody parole to Hussain to file nominations. Granting interim bail on this ground can open a "Pandora's box" as every undertrial would take this ground, Justice Mithal said.

However, disagreeing with him, Justice Amanullah allowed Hussain’s interim bail plea, saying it was a question of creating a "level-playing field".

"This is a matter of life and liberty...that is why we have listed day-to-day...why have you not completed trial in (last) five years? Just examined four out of five eye-witnesses? Charge-sheet was filed on June 2, 2020… All this has to be looked at. You can't castigate somebody like this… He (Hussain) has not been out of jail even for a day in five years. We can't shut our eyes. What is Article 21 of the Constitution for?" Justice Amanullah wondered.

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Hussain is an accused in a case relating to the murder of Intelligence Bureau (IB) official Ankit Sharma during the North-East Delhi riots in which 53 people had died and over 700 had suffered injuries in the communal violence that broke out in on February 24, 2020, during the visit of then-US President Donald Trump. The violence had erupted during protests against Citizenship (Amendment) Act (CAA) and the National Register of Citizens (NRC).

On behalf of the Delhi Police, Additional Solicitor General VS Raju opposed Hussain’s interim bail plea, saying allegations against him were very serious. "This is a gimmick for getting bail. Everyone will say we want to canvass (elections)...rapists will apply...look at the number of cases," Raju said.

Senior advocate Siddharth Aggarwal, appearing for Hussain, submitted the former councillor was in custody for 4.10 years and inciting a mob during the 2020 Delhi riots was the only allegation against him.

Hussain—who was arrested in the case on March 16, 2020—faces FIRs in 11 cases and has been granted bail in nine cases, the court was told. The main accused persons have already been granted regular bail, Aggarwal submitted. In its chargesheet, the prosecution has cited 115 witnesses who were cited by the prosecution, of which only 22 have been examined.

The Delhi High Court on January 14 granted custody parole to Hussain to file nomination papers from the Mustafabad constituency on an AIMIM ticket. However, the high court had refused 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.

Eleven FIRs were registered against him in connection with the riots and he was admittedly in custody in money laundering and UAPA cases, the HC had noted.

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