File image of Delhi police personnel taking Tahir Hussain into custody.
Credit: PTI Photo
New Delhi: The Supreme Court on Wednesday gave a split verdict on interim bail to former AAP councillor Tahir Hussain, who sought relief to campaign as AIMIM candidate during the Delhi Assembly polls.
A bench of Justices Pankaj Mithal and Ahsanuddin Amanullah expressed divergent views on the issue and ordered the registry to place the matter before the Chief Justice of India for setting up a larger bench.
Justice Mithal dismissed the plea saying it would open Pandora's box and open floodgates for every undertrial to seek bail to contest polls, while Justice Amanullah allowed it saying he has remained in jail about five years, even though the charges against him were grave but those remained as allegations only.
Justice Mithal also said the right to contest polls was a not fundamental right and he has already been allowed custody parole to file nomination paper for Mustafabad Assembly constituency.
He also felt release on interim bail for canvassing will allow the accused to go for door-to-door canvassing and hold meetings in the locality where the crime took place and witnesses resided, creating a high possibility of the accused meeting the witnesses.
Justice Mithal also noted the chargesheet revealed serious allegations against the accused and that the rooftop of his house and office was used as the "epicentre" for the offences.
Justice Amanullah, however, noted the petitioner has already been granted bail in other cases. The judge said the petitioner can be granted interim bail till February 4, subject to conditions.
Additional Solicitor General S V Raju, appearing for Delhi police opposed the plea for interim bail contending that the right to contest election does not give a right to campaign for jailed candidates. He also said the petitioner was an accused in a case under the Unlawful Activities (Prevention) Act, so any interim bail in the current matter would not entitle him relief in that case.
Senior Advocate Siddharth Agarwal, appearing for Hussain, however, said that regular and interim bail applications were pending in the UAPA and PMLA cases. He said then Delhi Chief Minister Arvind Kejriwal was granted interim bail for campaigning.
ASG Raju, however, contended Kejriwal was a national convenor of a national party. He said interim relief to the petitioner might prejudice the trial as public servants and several others were killed during the riots.
Hussain has been denied any relief in a case related to killing of Intelligence Bureau staffer Ankit Sharma during the riots.
The Delhi High Court had on January 14 rejected his plea for interim bail in the case, in order to allow him campaign during the polls.