Delhi High Court
Mohd Tahir Hussain vs State (Nct Of Delhi) on 14 January, 2025
Author: Neena Bansal Krishna
Bench: Neena Bansal Krishna
$~4
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 14th January, 2025
+ BAIL APPLN. 4819/2024
MOHD TAHIR HUSSAIN .....Petitioner
Through: Ms. Rebecca John, Sr. Advocate with
Mr. Rajiv Mohan, Ms. Tara Narula,
Ms. Shivangi Sharma, Ms. Sonal
Sarda Mr Rishabh Bhati, Ms.
Anushka Baravah, Mr. Rehan Khan,
Mr. Chinmay Kanojia, Mr. Nilanjan
Dey & Mr. Chandveer Shoran,
Advocates.
versus
STATE (NCT OF DELHI) .....Respondent
Through: Mr. Chetan Sharma, ASG with Mr.
Rajat Nair, SPP, through VC, Mr.
Dhruv Pande, Mr. Amit Gupta, Mr.
Shubham Sharma & Mr.
Vikramaditya Singh, Advocates.
A copy of this order be placed in all
the matters Sushil Kumar, Insp.
Priyanka, AEKC Crime Branch
Sunlight Colony.
CORAM:
HON'BLE MS. JUSTICE NEENA BANSAL KRISHNA
J U D G M E N T (oral)
CRL.M.A. 516/2025 (Exemption)
1. Allowed, subject to all just exceptions.
2. The Application is disposed of.
CRL.M.(BAIL) 50/2025
Signature Not Verified
DigitallySigned By:SAHIL
SHARMA
BAIL APPLN. 4819/2024 Page 1 of 12
Signing Date:14.01.2025
20:50:55
3. The present Application under Section 483 of the Bharatiya Nagarik
Suraksha Sanhita, 2023 (hereinafter referred to as “BNSS, 2023”) has been
filed on behalf of the Applicant/Petitioner seeking “Interim Bail” from
14.01.2025 to 09.02.2025 to participate in the election process and to contest
the Delhi Assembly Elections, 2025 from Mustafabad Constituency, Delhi.
4. It is submitted in the Application that the Applicant/Petitioner is an
accused in relation to the Delhi Riots which took place in February, 2020.
The Applicant/Petitioner was taken in custody and arrested by the Police on
05.03.2020 in FIR No. 101/2020 dated 25.02.2020 under Sections
109/114/147/148/149/188/353/427/435/436/454/34 of the Indian Penal
Code, 1860 (hereinafter referred to as “IPC, 1860”) registered at Police
Station Khajuri Khas, Delhi; since then, he is in judicial custody.
5. It is further submitted that the Complaint Case bearing No.
ECIR 05-STF/2020 under the Prevention of Money Laundering Act, 2002
has been filed by the Enforcement Directorate. In the said PMLA case, the
Applicant/Petitioner has already been in custody for more than half of the
maximum punishment that can be imposed on him, thereby entitling him to
the benefit of the erstwhile Section 436A of the Code of Criminal Procedure,
1973, now Section 479 of BNSS, 2023 and to Regular Bail/Anticipatory
Bail.
6. Apart from aforesaid two cases, the Applicant/Petitioner was arrested
in 9 other cases, all related to Delhi Riots, 2020.
7. It is submitted that the Applicant/Petitioner has been granted Regular
Bail in FIR Nos. 80, 117, 91, 92, 120 all of 2020, all registered at Police
Station Dayalpur, Delhi vide Judgment dated 12.07.2023 passed by the
Co-ordinate Bench of this Court.
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SHARMA
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8. The Applicant/Petitioner has been admitted to Regular Bail in FIR
No. 88/2020 dated 01.03.2020 under Sections 307/120B/34 of IPC, 1860
registered at Police Station Dayalpur, Delhi vide Order dated 02.09.2023 by
the learned Additional Sessions Judge, Karkardooma Courts, Delhi.
9. The Applicant/Petitioner has also been admitted to Bail in FIR No.
114/2020 dated 01.03.2020 under Sections 147/148/149/427/392/435/34 of
IPC, 1860 registered at Police Station Khajuri Khas, Delhi vide Order dated
06.05.2024 by the learned Additional Sessions Judge, Karkardooma Courts,
Delhi.
10. It is submitted the FIR No. 116/2020 has already been quashed by this
Court vide Judgment dated 26.11.2024 passed in CRL.M.C. 4654/2022.
11. It is further submitted that in the upcoming Delhi Assembly Elections,
2025, the Applicant/Petitioner, who was a former Municipal Councillor
from the Aam Aadmi Party, now intends to contest the Elections from
Mustafabad Assembly Constituency, as a Member of the All India
Majlis-e-Ittehadul Muslimeen (AIMIM) Party.
12. The Election Schedule of the Delhi Assembly Elections, 2025 has
been declared by the Election Commission of India which reads as under: –
Poll Events NCT of Delhi (All 70
Assembly Constituencies)
Date of issue of Gazette Notification 10.01.2025 (Friday)
Last date of making Nominations 17.01.2025 (Friday)
Date for scrutiny of Nominations 18.01.2025 (Saturday)
Last date for the withdrawal of candidates 20.01.2025 (Monday)
Date of Poll 05.02.2025 (Wednesday)
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SHARMA
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Signing Date:14.01.2025
20:50:55
Date of Counting 08.02.2025 (Saturday)
Date before which Election shall be 10.02.2025 (Monday)
completed
13. It is asserted that the Applicant/Petitioner intends to represent the
people and to contest from Mustfabad Assembly Constituency, Delhi. The
entire Electrical process which commences with filing of Nomination Papers
followed by opening of Bank Account after Nomination and canvassing and
culminates in the Declaration of the Oath, necessitates the continuous and
unhindered presence of the candidate, to ensure its smooth and efficient
completion.
14. The nomination must be accompanied with an Affidavit informing
that he has no prior conviction which is required to be executed by the
Applicant on Stamp Paper with his signatures on each page and sworn
before a First-Class Magistrate, a Notary Public, or an Oath Commissioner
as designated by the concerned High Court. The candidate is also required
to submit two identical recent photographs, conforming to the specified
standard. Also, the Oath of Allegiance as per Articles 84 and 173 of the
Constitution of India has to be also submitted by the Applicant on the
prescribed Form given in Schedule-III of the Constitution of India.
15. In order to ensure meticulous and uninterrupted completion of the
aforesaid procedure, it is imperative that the Applicant/Petitioner may be
granted Interim Bail in FIR No. 65/2020 dated 26.02.2020 registered at
Police Station Dayalpur, North-East, Delhi, from 14.01.2025 to 09.02.2025.
16. Learned Senior Advocate on behalf of the Applicant/Petitioner
had vehemently contended that the Applicant/Petitioner is in judicial
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SHARMA
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custody since 2020. The testimony of eye witnesses has already been
recorded and there is no apprehension of his tampering with the witnesses.
The Applicant/Petitioner has a right to participate in the Assembly Elections
and he cannot be denied this right merely because he is an accused in the
present case.
17. Learned Senior Advocate on behalf of the Applicant/Petitioner has
placed reliance on the decision of the Apex Court in Arvind Kejriwal vs.
Directorate of Enforcement, (2024) 9 SCC 577 passed in Criminal Appeal
No. 2493/2024, wherein it is held that while granting Bail, disregarding the
peculiarities of the individual concerned and the attendant circumstances,
would be “iniquitous and wrong”.
18. Reference is also made to the Order dated 02.07.2024 of the learned
Special Judge passed in RC No. 10/2017/NIA/DLI titled NIA vs. Mohd.
Hafiz Saeed & Ors., who in similar circumstances, granted the Custody
Parole to enable the accused to file his Nomination Papers.
19. Reliance has been placed on the cases of Arvind Kejriwal, (supra) and
Dhananjay Singh vs. State of NCT Delhi, SLP (Criminal) No. 3042/2014,
wherein in similar situations, the accused had been granted Interim Bail to
facilitate contesting of the Elections.
20. It is submitted that the Applicant/Petitioner would not be able to fulfil
his obligations of filing Nomination papers and opening of the Account as
well as to make effective campaigning for the Elections, if he is not granted
Interim Bail. The Fundamental Right of the Applicant/Petitioner to be able
to contest the Elections, cannot be scuttled by denying him the interim Bail.
21. Further, once the permission is granted in the present case, he would
then seek his Bail in the Complaint Case bearing No. ECIR 05-STF/2020
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DigitallySigned By:SAHIL
SHARMA
BAIL APPLN. 4819/2024 Page 5 of 12
Signing Date:14.01.2025
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under the Prevention of Money Laundering Act, 2002, in which he has
already undergone more than half of the maximum sentence which entitles
him to grant of Regular Bail. The Applicant/Petitioner would also be
seeking Bail in FIR No. 59/2020 for grant of Bail for the purpose of
contesting the Elections.
22. The present Application has been made bona fide with the prayer that
the Applicant/Petitioner may be granted Interim Bail from 14.01.2025 to
09.02.2025 to contest the Assembly Elections of Delhi.
23. Learned Additional Solicitor General of India on behalf of the
Respondent has vehemently opposed the present Application.
24. It is submitted that there are serious allegations against the
Applicant/Petitioner of murder of Mr. Ankit Sharma, an Official of the
Intelligence Bureau, Ministry of Home Affairs, Government of India by the
riotous mob, whose body was recovered from Khajuri Khas Nala, near
Chand Bagh Pulia. He was found only in his underwear and all his clothes
were missing. He had 51 blunt and sharp injuries on his head, face, chest,
back and his waist.
25. Looking at the gravity of the offence, the Applicant/Petitioner cannot
be released on Interim Bail.
26. It is further submitted that the right to contest the Elections is not a
Fundamental but a Statutory Right, as has been held in the case of
Vishwanath Pratap Singh vs. Election Commission of India and Another,
Special Leave to Appeal (Civil) No. 13013/2022 decided on 09.09.2022.
27. It is stated that the Applicant/Petitioner has been arrayed and arrested
in as many as 11 FIRs, including the FIR bearing No. 59/2020 under
Sections 109 / 114 / 124A / 147 / 148 / 149 / 153A /
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SHARMA
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186/201/212/295/302/307/341/353/395/420/427/435/436/452/454/468/471/1
20B/34 of IPC, 1860 and Sections 25/27 of Arms Act and Sections
13/16/17/18 of Unlawful Activities (Prevention) Act, 1967 and Sections 3/4
Prevention of Damage to Public Property Act registered at Police Station
Crime Branch, Delhi, which is being investigated by the Special Cell, Delhi,
wherein Sections 13/16/17/18 of Unlawful Activities (Prevention) Act, 1967
have been invoked. In addition to this, a Complaint Case bearing No.
ECIR 05-STF/2020 under the Prevention of Money Laundering Act, 2002 is
also pending against the Applicant/Petitioner.
28. Further, it is ex facie manifest that the Applicant/Petitioner has a
tendency to indulge in criminal conduct and the FIRs registered against him
are in regard to serious offences, including the provision of Unlawful
Activities (Prevention) Act, 1967.
29. It is further submitted that the Applicant/Petitioner is not a sitting
Chief Minister or a Leader of a National Party. The Applicant/Petitioner was
only a Municipal Councillor of Aam Aadmi Party. Also, the
Applicant/Petitioner is the main conspirator behind Delhi Riots that occurred
in North-East, Delhi in 2020, leading to as many as 53 deaths.
30. Furthermore, from the rooftop of the Applicant/Petitioner’s building,
stones, bricks and petrol bombs, acid drums were found stacked which were
used in the riots and the video of the same was widely circulated on social
media. The bottles were found which were used to throw Molotov Cocktail
on the Hindu Community and the riot control Police party. A separate FIR
No. 101/2020 registered at Police Station Khajuri Khas, Delhi, wherein the
Seizure Memos were prepared to seize all these materials recovered from the
rooftop of the Applicant/Petitioner. The FSL Report also confirms that the
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SHARMA
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bottles contained either kerosene oil or acid.
31. Furthermore, the prosecution evidence is at a pivotal stage. Many
material witnesses in FIR Nos. 88, 65, 120, 91, 92 all of 2020 are yet to be
examined.
32. It is submitted that in case the Applicant/Petitioner is granted Interim
Bail to contest the Assembly Elections of Delhi, there is every likelihood of
his tampering with the evidence and would most certainly influence the
witnesses whether directly or indirectly.
33. It is argued that the Applicant/Petitioner intends to contest the
Elections from Mustfabad Constituency located in North-East, Delhi and
this area was one of the locations affected by the Delhi Riots, 2020.
34. Given the totality of the circumstances, it is evident that the
Applicant/Petitioner holds the substantial influence over the local population
within this area. Such influence, including his community connections,
poses a credible risk and interference in the fair and impartial conduct of the
ongoing trial. These factors are required to be given due consideration while
assessing the implication of Interim Bail on the trial’s integrity and fairness.
35. Learned Additional Solicitor General of India has further argued
that the Bail granted in the case of Arvind Kejriwal, (2024) 9 SCC 577 is
totally on different set of factors. The High Court of Bombay in Bail
Application No. 4054/2024 titled Digambar Rohidas Agawane vs.
Directorate of Enforcement, distinguished the judgment of Arvind Kejriwal,
(supra) by noting that the Applicant therein was neither a sitting Chief
Minister or a Leader of a National Party.
36. Furthermore, similar Interim Bail Applications have been declined in
many a cases by the High Court and the Supreme Court.
Signature Not Verified
DigitallySigned By:SAHIL
SHARMA
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Signing Date:14.01.2025
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37. It is submitted that the Respondent/State is willing to cooperate and
support the Applicant/Petitioner to comply with the requisite formalities and
to file and submit the Nomination Papers and to open his Bank Account for
which the Custody Parole instead of Interim Bail, may be granted to the
Applicant/Petitioner.
38. Submissions heard and the record perused.
39. The Applicant/Petitioner was a former Municipal Councillor of Aam
Aadmi Party. He is an accused in as many as 9 FIRs that have been
registered in regard to the Delhi Riots, 2020 which took place in North-East
Delhi. In FIR No.101/2020, the seizure of materials i.e., Stones, Bricks and
Petrol Bombs and Acid drums which were stacked on the roof of his house
and were used in the riots, the videos of which have been widely circulated
in the social media, had been recovered. The present FIR No.65/2020 is in
regard to the murder of Mr. Ankit Sharma, an Official of Intelligence
Bureau, Ministry of Home Affairs, Government of India.
40. In the case of Arvind Kejriwal, (supra) while considering the Interim
Bail for contesting/campaigning the General Elections, 2024, it was
observed that the Courts, while considering such Application, must always
take into consideration the peculiarities associated with the person in
question and the surrounding circumstances. In the said case, considering
that the Applicant was the sitting Chief Minister of Delhi and a Leader of a
National Party i.e., Aam Aadmi Party, the Interim Bail for contesting the
Elections, was granted.
41. Much reliance has been placed on the Application of Abdul Rashid
Sheikh @ Er. Rashid which wad decided vide Order dated 10.09.2024
passed in NIA vs. Hafiz Saeed & Ors.
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DigitallySigned By:SAHIL
SHARMA
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42. Abdul Rashid Sheikh @ Er. Rashid, (supra) in which an Interim Bail
had been granted to the Applicant for contesting the Legislative Assembly
Elections of J&K, but as rightly argued, in the said case the State had no
objection to the release of the Applicant on Interim Bail for the purpose of
the Elections; consequently, the Interim Bail was granted.
43. The circumstances of the said case in which Interim Bail was granted,
cannot be considered as a precedent. Rather, as observed in the case of
Arvind Kejriwal, (supra), the peculiarities of each case have to be considered
independently to ascertain whether Interim Bail can be granted.
44. It is also pertinent to refer to the Order of the Bombay High Court in
Digambar Rohidas Agawane (supra), wherein it was observed by the High
Court of Judicature at Bombay that the peculiarity attached to Arvind
Kejriwal was that he was a sitting Chief Minister and Member of a National
Party.
45. Reliance has been placed by the Applicant/Petitioner on the case of
Dhananjay Singh, (supra), wherein in similar circumstances, Interim Bail
had been granted to the Applicant/Petitioner for the purpose of filing the
Nomination Papers. However, the said case was under Section 302 of IPC,
1860. Moreover, there also, it had been observed that the Petitioner has
been a Member of Parliament and consequently was directed to be released
for one week temporarily for submitting the Nomination Papers.
46. However, as already discussed above, each case has to be determined
on its own peculiar facts and the judgment so cited, cannot be said to be a
precedent on the proposition of law that in every case where the Applicant
intends to contest the Elections, he shall be entitled to Interim Bail.
47. In the present case, the Applicant/Petitioner is a former Municipal
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SHARMA
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Councilor of Aam Aadmi Party and is not a sitting Member of Parliament.
The gravity of allegations against the Applicant/Petitioner is that he was the
main perpetrator to the Riots which took place in the year 2020 in North-
East District, Delhi, which resulted in death of about 59 persons, cannot be
overlooked. Merely because the Applicant/Petitioner had earlier been a
Municipal Councilor, cannot be a peculiar circumstance entitling him to
grant of Interim Bail.
48. The Applicant/Petitioner has as many as 11 FIRs registered against
him in regard to Riots of North East, Delhi. He is in Judicial Custody since
2020. He may have been admitted to bail in 9 FIRs, but admittedly, he
continues to be in custody in the PMLA case as well as FIR No. 59/2020
aside from the present case.
49. Considering the antecedents, nature of allegations and having regard
to the totality of circumstances, he is granted Custody Parole for
subscribing the Oath and to complete the formalities in respect of filing his
Nomination Papers. He is granted Custody Parole on the following
conditions: –
(i) that he shall not have any access to the phone, whether
mobile or landline or the internet;
(ii) that he would not interact with any person except the
officials concerned in the Nomination process;
(iii) that he will not address the media; and
(iv) that the family members of the accused may remain
present, but they would not be permitted to click photographs of
the filing of Nomination, or to post the same on social media.
50. The Respondent/State shall accordingly facilitate the filing of the
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Nomination Papers on the concerned date and shall accordingly provide the
facility for completing the formalities before and after the filing of
Nomination Papers for contesting the Delhi Assembly Elections, 2025.
51. The State may co-ordinate accordingly with the concerned Authorities
so that the entire process is completed in a timely manner and the
Applicant/Petitioner’s right of filing Nomination is not impacted in any
manner.
52. The copy of the Order be sent to the Jail Superintendent and to the
concerned Authorities for compliance.
53. The copy of the Order be also given Dasti to the learned counsel for
the Applicant/Petitioner.
54. The Application is accordingly disposed of.
BAIL APPLN.4819/2024
55. List for arguments on 20.02.2025.
(NEENA BANSAL KRISHNA)
JUDGE
JANUARY 14, 2025
S.Sharma/va/rk
Signature Not Verified
DigitallySigned By:SAHIL
SHARMA
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