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Justice Mithal v Justice Amanullah: As the SC delivers a split verdict in Tahir Hussain’s bail plea, read what both the judges said

"It is settled law that magnitude of offence and gravity is not the only criteria for bail cases. I am of the view that, subject to appropriate conditions the petitioner be granted bail," Justice Amanullah said while delivering verdict in favour of Tahir Hussain.

A division bench of the Supreme Court comprising Justices Pankaj Mithal and Amanuddin Ahsanullah found itself in a fix while hearing the interim bail plea of Delhi Anti-Hindu riots accused Tahir Hussain on Wednesday. Former Aam Aadmi Party Councillor Tahir Hussain filed a plea before the Apex Court seeking interim bail for contesting the upcoming Delhi Assembly elections as a candidate of the All India Majlis-e-Ittehadul Muslimeen (AIMIM) candidate.

Unable to decide whether Hussain should be granted bail or not, the division bench passed a split verdict. The bench referred the matter to the Chief Justice of India (CJI) Sanjiv Khanna to be presented before a three-judge bench. Justice Pankaj Mithal rejected Hussain’s bail plea while Justice Ahsanuddin Amanullah’s opinion was that his plea should be allowed. “Since our opinions have differed, let Registry place this matter before the Chief Justice of India for the constitution of a third judge or to place it before a three-judge bench”, Justice Mithal remarked.

Justice Mithal was against granting Hussain bail

Justice Mithal said that allowing interim bail to Tahir Hussain would set a wrong precedent opening floodgates of pleas by jailed persons seeking interim bail on similar grounds. “If interim bail is allowed for contesting elections, it will open a pandora’s box. Since elections in the country are all year round, every prisoner will come out with a plea that he wants to participate in the elections and therefore he wants interim bail. This will open floodgates of litigation and this cannot be permitted,” Justice Mithal said. He added that it may also prompt multiple petitions for interim bail to come out of jail for voting which is prohibited for prisoners under the Representation of People Act.

Taking notice of the serious allegations levelled against Hussain, Justice Mithal weighed the possibility of him influencing the witnesses if allowed to go out of jail. Justice Mithal clarified that the right to campaign for elections is not a fundamental right. He rejected Hussain’s bail plea stating that it is up to the discretion of the court to decide whether interim bail should be given for such a purpose.

Justice Mithal noted that even if Hussain’s plea was allowed, he would remain in jail as he is yet to get bail in the money laundering case against him. “This (present interim bail) is an academic exercise! If you don’t get bail in all cases, this bail will not mean that you will walk out,” he added.

Justice Amanullah was in favour of granting Hussain bail

Justice Ahsanuddin Amanullah said that Hussain’s bail plea can be allowed on certain conditions. “It is settled law that magnitude of offence and gravity is not the only criteria for bail cases. I am of the view that, subject to appropriate conditions the petitioner be granted bail. Bail only until the forenoon of February 4, 2025,” said Amanullah J. He said that Hussain could be released on the condition that he would not be allowed to speak on the Delhi riots cases while campaigning.

“He would also promptly surrender before the jail authorities after the expiry of the term granted,” he added. Justice Amanullah questioned the prosecuting agency for failing to complete the trial promptly. “In four years only four or five eyewitnesses were examined? If this case was so important…he has not been out for a single day. You cannot have unlimited liberty to castigate someone. This is not Article 21, it has been denied, ” he said.

Responding to Justice Mithal’s view that Hussain would not be able to walk out without getting bail in the money laundering case, Justice Amanullah said, “Why should the Supreme Court wait for the trial court to decide something? We cannot anticipate that he will not get bail…If we (Supreme Court) wait for the trial court, then it is like we are subservient to the trial court”.

The ASG urged the SC not to grant Hussain bail

Additional Solicitor General (ASG) SV Raju, appearing on behalf of the Delhi Police, urged the court not to allow Hussain’s plea citing the seriousness of the allegation against him. He mentioned that Hussain’s role in the 2020 Delhi anti-Hindu riots was not limited to instigating rather he ‘orchestrated’ the riots and his house was the ‘epicentre’ from where directions were issued and weapons were recovered.

Tahir Hussain approached the Supreme Court seeking interim bail after his bail plea was rejected by the Delhi High Court on January 14, 2025. The High Court emphasized the seriousness of the allegations against him, highlighting his involvement in the violence that led to the deaths of 59 people. However, the Court has granted Tahir Hussain custody parole to allow him to file his nomination papers and participate in campaigning for the upcoming Assembly elections.

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