CJI sets up three-judge Bench to hear Tahir Hussain’s interim bail plea on Tuesday-OxBig News Network

Chief Justice of India Sanjiv Khanna has set up a three-judge Bench led by Justice Vikram Nath to hear former councillor and February 2020 Delhi riots accused Tahir Hussain’s petition seeking interim bail to campaign in the upcoming Assembly polls in the Capital.

The Justice Nath-led Bench, which also included Justice Sanjay Karol and Justice Sandeep Mehta, will take up Hussain’s interim bail plea on Tuesday – January 28.

The new Bench has been constituted in view of a split verdict delivered by a Bench of Justice Pankaj Mithal and Justice Ahsanuddin Amanullah on Hussain’s interim bail plea on January 22.

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 Court’s 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.

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

On behalf of the Delhi Police, Additional Solicitor General VS Raju had 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 canvas (elections)…rapists will apply…look at the number of cases,” Raju said.

Senior advocate Siddharth Aggarwal, appearing for Hussain, had 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 charge-sheet, 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.