Supreme Court of India
Mohd Tahir Hussain vs State Of Nct Of Delhi on 22 January, 2025
Author: Pankaj Mithal
Bench: Pankaj Mithal
IN THE SUPREME COURT OF INDIA
EXTRA ORDINARY JURISDICTION
2025 INSC 100
SPECIAL LEAVE PETITION(CRIMINAL) NO. 856/2025
MOHD. TAHIR HUSSAIN PETITIONER(S)
VERSUS
STATE OF NCT OF DELHI RESPONDENT(S)
ORDER
PANKAJ MITHAL, J.
1. Heard Mr. Siddharth Aggarwal, learned senior counsel
appearing for the petitioner and Mr. S. V. Raju,
learned Additional Solicitor General appearing for
the respondent-State.
2. The petitioner is in custody in connection with FIR
No. 65 of 2020 dated 26.02.2020 registered at Police
Station Dayalpur, District North East, Delhi in
connection with rioting and murder of one Ankit
Sharma, an official of the Intelligence Bureau,
Ministry of Home Affairs, Government of India. Apart
from the aforesaid case, several other cases
relating to riots in Delhi which took place in the
month of February, 2020 and one under PMLA are
pending consideration and the petitioner is
allegedly involved in all of them.
Signature Not Verified
Digitally signed by
3.
SNEHA DAS
Date: 2025.01.23 The petitioner so far has not been successful in
11:46:12 IST
Reason:
getting bail in the above case and some other cases,
so he applied to the High Court for grant of interim
1
bail from 14.01.2025 to 09.02.2025 simply toparticipate and contest Delhi Assembly Election,
2025 from Mustafabad Constituency, Delhi. It may be
remembered that the petitioner was earlier a
councilor from the ticket of the Aam Aadmi Party.
However, subsequently he left the said party and
was given ticket to contest the Assembly Elections
by the All India Majlis-e-Ittehadul Muslimeen
(AIMIM). He took the ticket to contest the Assembly
Elections fully knowing that he is in jail in
connection with several cases in some of which he
may have been granted bail but continues to languish
therein and so he has to participate in the election
remaining behind the bars.
4. The interim bail application moved by the petitioner
was considered by the High Court and was ultimately
disallowed by the order impugned dated 14.01.2025
but he was granted conditional custody parole for
subscribing oath and to complete formalities in
respect of filing his nomination papers to contest
the Assembly Elections. In this way, though the
petitioner has no fundamental right to contest the
elections but his statutory right to that effect
was duly protected.
5. The petitioner is not satisfied by the grant of
custody parole for filing his nomination enabling
2
him to participate in the election and has thus
preferred this Special Leave Petition contending
inter alia that permitting filing of nomination is
meaningless if he is not allowed to campaign and
canvass.
6. It is important to note here that right to campaign
or canvass is neither a fundamental right nor a
constitutional or a human right. It is not even a
right recognized under any statute. However, the
petitioner is an Indian citizen and we are conscious
that his rights as a citizen are to be protected.
Nonetheless, the involvement of the petitioner in
as many as eleven cases including the present one,
one pertaining to PMLA and nine in relation to Delhi
riots of 2020, dilutes and erodes his position as a
law-abiding citizen.
7. The allegations against the petitioner in the
present case are not only in connection with the
rioting but also of the murder of the official of
the Ministry of Home Affairs, Government of India.
The allegations made against the petitioner, if
considered cumulatively along with the chargesheet
which has been submitted on 02.06.2020 reveals the
seriousness of the charges levelled against the
petitioner. The allegations against the petitioner
are also to the effect that his house/office was
3
being used as the epicenter for the commission of
the aforesaid offences in which murder of one Ankit
Sharma is a sequel. On the rooftop of petitioner’s
house/building objects like stones, bricks, petrol
bombs, acid drums etc. were recovered which were
used during the riots, as per material on record.
It has come on record in the order impugned that
many material witnesses, especially in connection
with the present FIR No. 65 of 2020 are yet to be
examined.
8. In the aforesaid facts and circumstances and keeping
in mind the submissions of Sh. Siddharth Aggarwal,
learned senior counsel for the petitioner, who has
limited/confined his arguments to the grant of
interim bail only, as the regular bail remains
pending for consideration before the High Court, the
limited issue before this Court is whether a purpose
based interim bail can be granted to contest the
election or for canvassing as the petitioner himself
is one of the candidates.
9. There is no provision for interim bail under the
law but lately it has become an acceptable mode of
grant of bail in certain special contingencies.
10. In Arvind Kejriwal vs. Directorate of Enforcement1
this Court quoted with approval from Athar Pervez2
1
(2024) 9 SCC 577
2
2016 SCC OnLine Del 6662
4
case which reads as under:
“20. The expression “interim” bail is not
defined in the Code. It is an innovation by
legal neologism which has gained acceptance
and recognition. The terms, “interim”
bail/”interim” suspension of sentence, have
been used and accepted as part of legal
vocabulary and are well- known expressions.
The said terms are used in contradistinction
and to distinguish release on regular bail
during pendency of trial or appeal till final
adjudication. Applications for “interim”
suspension or bail are primarily moved and
prayed for, when the accused or convict is
not entitled to or cannot be granted regular
bail or suspension of sentence, or the
application for grant of regular bail is
pending consideration and is yet to be
decided. “Interim” bail entailing temporary
release can be granted under compelling
circumstances and grounds, even when regular
bail would not be justified. Intolerable
grief and suffering in the given facts, may
justify temporary release, even when regular
bail is not warranted. Such situations are
not difficult to recount, though making a
catalogue would be an unnecessary exercise.”
11. The reasons and factors whereunder interim bail may
be permitted may include cases where there is death
in the family of the accused and the cremation has
to take place; to attend the wedding of son/daughter
or of any close relative of the accused but such a
right has not been recognized on the plea of
contesting or canvassing for the election.
12. In the event interim bail is made permissible on
the ground of contesting elections, it will open a
Pandora’s box inasmuch as in this country election
in some form takes place throughout the year and
the accused persons in jail may take undue benefit
5
of it and even if they are not serious in contesting
elections, they would move interim bail application
for the purposes of participating in the election
knowing fully well they are likely to lose or are
not serious contenders. This will open a flood gate
of litigation which ought not to be permitted so as
to widen the scope of grant of interim bail, more
particularly when the regular bail application is
pending consideration.
13. Secondly, if right to participate, canvassing and
contesting in election is allowed to be treated as
a ground for interim bail, then the necessary sequel
of the same would be that the accused person ought
to be allowed to vote in the election as well. Such
a sequel would be in conflict with the provision
Section 62(5) of the Representation of People Act,
1951 which circumscribe the right to vote by laying
down that no person shall vote in any election, if
he is confined in a prison or is in lawful custody
of the police. The grant of interim bail for
contesting elections would mean permitting the
accused to cast his/her vote, which would be
antithesis to the provisions of Section 62(5) of the
Representation of People Act, 1951.
14. In the case of Anukul Chandra Pradhan, Advocate
Supreme Court Vs. Union of India and Ors.: 1997 (6)
6
SCC 1, the three Judges Bench of this Court has
observed as under:
“8. There are other reasons justifying
this classification. It is well known that
for the conduct of free, fair and orderly
elections, there is need to deploy
considerable police force. Permitting every
person in prison also to vote would require
the deployment of a much larger police force
and much greater security arrangements in
the conduct of elections. Apart from the
resource crunch, the other constraints
relating to availability of more police
force and infrastructure facilities are
additional factors to justify the
restrictions imposed by sub-section (5) of
Section 62. A person who is in prison as a
result of his own conduct and is, therefore,
deprived of his liberty during the period of
his imprisonment cannot claim equal freedom
of movement, speech and expression with the
others who are not in prison. The
classification of persons in and out of
prison separately is reasonable.
Restriction on voting of a person in prison
results automatically from his confinement
as a logical consequence of imprisonment. A
person not subjected to such a restriction
is free to vote or not to vote depending on
whether he wants to go to vote or not; even
he may choose not to go and cast his vote.
In view of the restriction on movement of a
prisoner, he cannot claim that he should be
provided the facility to go and vote.
Moreover, if the object is to keep persons
with criminal background away from the
election scene, a provision imposing a
restriction on a prisoner to vote cannot be
called unreasonable.”
15. One of the basic submissions of Sh. Siddharth
Aggarwal is that permitting filing of nomination
alone is of no use unless the person is allowed to
7
campaign and canvass. The argument appears to be
attractive, but, has no force.
16. Canvassing in an election can be done in many ways
such as through newspapers, social media, pamphlets,
writing letters and it is not necessary that it
should be in the physical form such as by holding
meetings and by personal contact. Permitting the
petitioner to be released on interim bail for the
purpose of canvassing would amount to permitting the
petitioner to hold meetings and to undertake door
to door canvassing. This would necessarily involve
interaction of the petitioner with the people of the
locality on personal basis. Since, the incident
mentioned in the FIR took place in the locality from
where the petitioner is contesting, if the
petitioner is permitted to move around freely, there
is a very high possibility of his tampering with the
witnesses who are or local people living in that
locality alone.
17. The argument that the petitioner is entitled to
interim bail on the ground that he has suffered long
incarceration for around four years and that despite
submission of chargesheet way back on 20.06.2020
itself, the trial has not progressed and very few
witnesses till date have been examined, is of no
assistance for the petitioner for seeking interim
bail. The said argument may be appreciated better
8
while considering the regular bail, but not an
interim bail which is limited only to the ground
whether he should be allowed to be released
temporarily for the purpose of contesting or
participating in the election.
18. This apart, the thrust of the argument is that an
interim bail for canvassing is necessary for
effectively contesting the election. It is well
known that a person contesting election has to
nurture his constituency for years together and
canvassing for ten or fifteen days would not suffice
the purpose. If he has earned a good reputation and
his services are recognized by the people, the
canvassing in the last days would not be very
material. It is also well accepted that a large
number of people in the past have contested
elections sitting behind the bars and they have won
without being released for the purposes of
canvassing. Therefore, there is no special
circumstance in the case of the petitioner to grant
him interim bail for that purpose. Most of the times,
the campaigning is done by the party or its workers
and if one person in the party or the leader or even
the candidate is debarred from canvassing, it does
not in any way affect the legal right.
19. Reliance placed upon the decision of this Court in
9
the case of Arvind Kejriwal (supra) cuts no ice
inasmuch as it is distinguishable on facts. There
the petitioner was holding the post of Chief
Minister and was the President of a national party
and therefore, the Court opined that he is one of
the main campaigners, which is not the situation in
the case at hand.
20. It may not be out of context to mention that the
petitioner is in jail not only in connection with
the case at hand i.e., FIR No. 65 of 2020 but also
in two other cases, including a PMLA case, and a
case arising out of FIR No. 59 of 2020. In those two
cases, the petitioner has not been granted bail. His
bail application/interim bail application in those
cases are pending in different courts but the fact
remains that he is not on bail in those two cases,
meaning thereby that even if the petitioner is
granted interim bail in the present case, he would
not be out of prison for the purpose of canvassing
and campaigning. Therefore, the entire exercise in
this regard will prove to be academic and futile in
nature.
21. It is high time that the citizens of India deserve
a clean India, which means clean politics as well
and for the said purpose, it is necessary that people
with tainted image, especially those who are in
custody and had not been granted bail and those who
10
are undertrial, even if out of jail, be restricted
in some way or the other from participating in the
election. The people of India should be given a
choice to elect people with clean image and
antecedents.
22. In the case at hand, as stated earlier, the Court
is confined as to whether interim bail for the
purposes of election ought to be allowed or not.
The petitioner, on the ground of his long custody
or the trial not being completed for long, may argue
for regular bail but that is not the subject-matter
for consideration before this Court today. We do
not intend to usurp the jurisdiction of the High
Court, where the regular bail of the petitioner is
pending consideration.
23. In the facts and circumstances of the case, long
incarceration of the petitioner or the fact that
some of the other co-accused have been released on
bail or that upon evidence, the entire case of
prosecution will fall to the ground are not
relevant, and therefore, I am of the opinion that
the High Court has not committed any error of law
in exercising its decision in refusing the interim
bail to the petitioner and permitting him only
custodial parole for the purposes of subscribing
oath and filing of his nomination papers.
24. In simple words, interim bail is not permissible for
11
the purposes of contesting elections, much less for
campaigning.
25. In this view of the matter no case is made out for
any indulgence in exercise of discretionary power
of this Court under Article 136 of the Constitution
of India and the Special Leave Petition is dismissed
with liberty to the petitioner to pursue his regular
bail application before the High Court where he may
seek an advancement of the date of hearing fixed in
the matter concerned, if so advised.
26. The Special Leave Petition is dismissed as
aforesaid.
……………………………………………………J.
[PANKAJ MITHAL]
NEW DELHI;
JANUARY 22, 2025.
12
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
EXTRAORDINARY JURISDICTION
SPECIAL LEAVE PETITION (CRIMINAL) NO.856 OF 2025
MOHD. TAHIR HUSSAIN …PETITIONER(S)
VERSUS
STATE OF NCT OF DELHI …RESPONDENT(S)
JUDGMENT
AHSANUDDIN AMANULLAH, J.
1. With great reverence for the erudite opinion expressed by
learned Brother Pankaj Mithal, J., I express my inability to
concur therewith.
2. The factual matrix has been noted by Brother Mithal. I see no
need to repeat the same, except to refer thereto where
required.
PRELUDE:
3. The Petitioner seeks interim bail to contest in and canvass for
the upcoming General Elections to the Legislative Assembly of
the National Capital Territory of Delhi. The Petitioner is an
accused in cases relating to the unfortunate riots that took
place in Delhi in February/March, 2020. It is averred that
2
except for three cases i.e., 2 FIR 1s (including the present one)
and ECIR2 No.05/STF/2020, the Petitioner has secured bail in
all the other cases, whereas one FIR has been quashed by the
Delhi High Court.
4. The Petitioner approached the High Court which granted
‘Custody Parole for subscribing the Oath and to complete the
formalities in respect of filing his Nomination Papers’, subject
to conditions as enumerated in the Impugned Judgment 3.
5. It is clear that the Petitioner has been permitted to file his
nomination and, consequent thereof, contest in the Election.
Therefore, what this Court is required to consider as to
whether or not, in the attendant facts and circumstances, he
can be granted interim bail to campaign/canvass.
6. The contours on which to examine the grant of bail are no
longer res integra. I may gainfully refer to State of Haryana v
Dharamraj, 2023 SCC OnLine SC 1085, where this Court
cancelled the grant of anticipatory bail to an accused by the
Punjab and Haryana High Court, but revisited the precedents
on grant/cancellation of bail as under:
‘7.…. This Court considered the factors to guide grant of
bail in Ram Govind Upadhyay v. Sudarshan Singh,
(2002) 3 SCC 598 and Kalyan Chandra Sarkar v.
Rajesh Ranjan, (2004) 7 SCC 528. In Prasanta Kumar
Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496, the
relevant principles were restated thus:
‘9. … It is trite that this Court does not, normally,
interfere with an order passed by the High Court
granting or rejecting bail to the accused. However, it
1
First Information Report.
2
Enforcement Case Information Report.
3
2025 SCC OnLine Del 111.
3
is equally incumbent upon the High Court to exercise
its discretion judiciously, cautiously and strictly in
compliance with the basic principles laid down in a
plethora of decisions of this Court on the point. It is
well settled that, among other circumstances, the
factors to be borne in mind while considering an
application for bail are:
(i) whether there is any prima facie or reasonable
ground to believe that the accused had committed
the offence;
(ii) nature and gravity of the accusation;
(iii) severity of the punishment in the event of conviction;
(iv) danger of the accused absconding or fleeing, if
released on bail;
(v) character, behaviour, means, position and standing
of the accused;
(vi) likelihood of the offence being repeated;
(vii) reasonable apprehension of the witnesses being
influenced; and
(viii) danger, of course, of justice being thwarted by
grant of bail.’
xxx
11. The contours of anticipatory bail have been
elaborately dealt with by 5-Judge Benches in Gurbaksh
Singh Sibbia v. State of Punjab, (1980) 2 SCC
565 and Sushila Aggarwalv. State (NCT of
Delhi), (2020) 5 SCC 1. Siddharam Satlingappa
Mhetre v. State of Maharashtra, (2011) 1 SCC 694 is
worthy of mention in this context, despite its partial
overruling in Sushila Aggarwal (supra). We are
cognizant that liberty is not to be interfered with easily.
More so, when an order of pre-arrest bail already stands
granted by the High Court.
12. Yet, much like bail, the grant of anticipatory bail is to
be exercised with judicial discretion. The factors
illustrated by this Court through its pronouncements are
illustrative, and not exhaustive. Undoubtedly, the fate of
each case turns on its own facts and merits. In Vipan
Kumar Dhir v. State of Punjab, (2021) 15 SCC 518,
taking note of Dolat Ram (supra) and X v. State of
4
Telangana (supra), the Court cancelled the anticipatory
bail granted to the accused therein. Keeping all the
aforesaid in mind, we turn our attention to the facts in
praesenti.’
(emphasis supplied)
7. I consciously refrain from discussing in detail the evidence or
my view thereon, following, inter alia, Niranjan Singh v
Prabhakar Rajaram Kharote, (1980) 2 SCC 559; Vilas
Pandurang Pawar v State of Maharashtra, (2012) 8 SCC
795, and; Manik Madhukar Sarve v Vitthal Damuji Meher,
(2024) 10 SCC 753. However, in view of the elaborate
submissions advanced at the Bar, reference somewhat to the
materials on record is necessitated.
8. Yet, before forming an opinion as to whether the prayer for
grant of interim bail, for the purpose presently sought for i.e., to
campaign for the Election for which his Nomination Papers
stand submitted, can be granted, this Court would have to go
into the broader merits of the case, subject to the caveat afore-
recorded.
THE PETITIONER’S SUBMISSIONS:
9. Mr. Siddharth Aggarwal, learned senior counsel appearing for
the Petitioner has submitted that he would be confining
himself, at this stage, to attempting to persuade the Court as to
whether in the particular facts and circumstances, the
Petitioner would, due to the non-grant of interim bail, be
seriously prejudiced and his Fundamental Rights as a citizen
under the Constitution of India would also be compromised if
5
he only takes part in the Election as a formality, inasmuch as
even after filing his Nomination Papers and being declared fit
to contest, he would not be allowed to connect with the people
of the constituency concerned, and to satisfy the electorate as
to why he should be elected.
10. The thrust of Mr. Aggarwal’s argument was that the Petitioner
has been in custody for almost 5 years now (reckoned from
March, 2020) which is a long period and the democratic
process requires that a candidate should go before the
electorate from whom he seeks votes to represent them in the
body for which elections are going to be held.
11. It was submitted that the Petitioner had an unblemished record
as a Ward Councillor and only because of the unfortunate
incidents which took place in February/March, 2020, the
Petitioner due to certain circumstances was named as an
accused in as many as 11 FIRs, out of which in 8, he has been
granted bail. What remains are the instant case and two other
cases, including one under the Prevention of Money-
Laundering Act, 2002 (hereinafter referred to as ‘PMLA’). It
was submitted that in all the cases, the basic allegation is that
the Petitioner was chiefly an instigator and that he may be the
person who was also instrumental in logistics for the rioters.
However, on identical facts, in the 8 other cases, the Petitioner
has been granted bail and in the remaining cases, his
applications for interim bail as well as regular bail are still
pending, without having been finally considered on merits.
12. Learned senior counsel submitted that under law, the right of
6
an accused to bail is almost crystallized, in the event that the
prosecution fails to discharge its onus of facilitating a fair and
speedy trial, which is glaring in the present case. He submitted
that in the present case, there are five named Chargesheet
prosecution eye-witnesses, out of which four have already
been examined but the fifth witness is yet to be examined and
the ground is that the said witness has been out of Delhi on
the various dates fixed in the trial. It was next submitted that
the Chargesheet was filed/submitted on 02.07.2020 and now,
almost five years have passed. Mr. Aggarwal’s submission was
that without blaming anybody for such situation, including a
systemic failure, there is no real probability of the trial being
concluded in the near future. Asserting that the Petitioner’s
rights cannot be curtailed in this way, he urged the Court to
consider as to whether the Petitioner deserves to be enlarged
on bail even otherwise, albeit without fully going into the
merits.
13. It was submitted even under specific laws, where there are
prohibitions for grant of bail, unless the Court is satisfied that
there is no chance of the petitioner being convicted and/or it
would not otherwise be against public interest, the Courts have
held that the same would not apply in case of granting
provisional bail. It was submitted that such proposition has
been dealt with at Paragraphs 12 and 13 in Arvind Kejriwal v
Directorate of Enforcement, 2024 (9) SCC 5774. Further, it
4
‘12.Athar Pervez v. State (NCT of Delhi) [Athar Pervez v. State (NCT of Delhi), 2016 SCC OnLine Del 6662] , a
judgment of the Delhi High Court authored by one of us (Sanjiv Khanna, J.), on the power to grant interim bail in cases
registered under the NDPS Act, in addition to the judgments noted, refers to Siddharam Satlingappa Mhetre v. State of
Maharashtra [Siddharam Satlingappa Mhetre v. State of Maharashtra, (2011) 1 SCC 694 : (2011) 1 SCC (Cri) 514] ,
which decision leans on the Constitution Bench judgment in Gurbaksh Singh Sibbia v. State of Punjab [Gurbaksh Singh
Sibbia v. State of Punjab, (1980) 2 SCC 565 : 1980 SCC (Cri) 465] , and Central Inland Water Transport
Corpn. v. Brojo Nath Ganguly [Central Inland Water Transport Corpn. v. Brojo Nath Ganguly, (1986) 3 SCC 156 :
7
has been contended that even the Petitioner was granted bail
by the Delhi High Court or the Trial Court concerned in a
majority out of the total eleven cases. It was urged that the
Petitioner has been shown to be the villain because he was a
Ward Councillor and naturally people would reach out to him, if
they required help including those from his own community,
during the time of the riots.
14. However, learned Senior Counsel took the Court through the
Chargesheet, the reading whereof would indicate that (i) the
Petitioner made repeated calls to the Police Control Room, (ii)
the police arrived late at the spot, and; (iii) the Petitioner’s
house was the sole house which was not vandalised. He
submitted that even as per the materials, some incriminating
articles have been recovered from the Petitioner’s house but
that would not prove that the Petitioner was the mastermind of
the entire plot, as was the version of the prosecution.
Otherwise, advanced the learned senior counsel, in a regular
case, the Courts have always granted bail to the accused
within a few months of incarceration. It was contended that the
materials which have been recovered would not disentitle the
Petitioner from favourable consideration for release on bail.
1986 SCC (L&S) 429] , and observes : (Athar Pervez case [Athar Pervez v. State (NCT of Delhi), 2016 SCC OnLine
Del 6662] , SCC OnLine Del para 20)
“20. The expression “interim” bail is not defined in the Code. It is an innovation by legal neologism which has
gained acceptance and recognition. The terms, “interim” bail/“interim” suspension of sentence, have been used
and accepted as part of legal vocabulary and are well-known expressions. The said terms are used in
contradistinction and to distinguish release on regular bail during pendency of trial or appeal till final
adjudication. Applications for “interim” suspension or bail are primarily moved and prayed for, when the accused
or convict is not entitled to or cannot be granted regular bail or suspension of sentence, or the application for
grant of regular bail is pending consideration and is yet to be decided. “Interim” bail entailing temporary release
can be granted under compelling circumstances and grounds, even when regular bail would not be justified.
Intolerable grief and suffering in the given facts, may justify temporary release, even when regular bail is not
warranted. Such situations are not difficult to recount, though making a catalogue would be an unnecessary
exercise.”
13. Power to grant interim bail is commonly exercised in a number of cases. Interim bail is granted in the facts of each
case. This case is not an exception.’
8
15. It was submitted that almost five years of incarceration have
rendered the Petitioner out of society and there has been no
contact with the electorate and thus, it is all the more
reasonable and fair that the Petitioner should get a chance for
whatever few days remain for the Election, such that he can
attempt to convince the electorate to exercise their franchise in
his favour. Moreover, it was submitted that the Petitioner’s
conduct otherwise, prior to the date of the FIRs has remained
unquestioned. There are no indications that he is a hardened
criminal, for within a few days of the unfortunate incident(s), he
was incarcerated. Learned senior counsel stated that prior in
time to the riots, there is no allegation of the Petitioner being a
member of or otherwise being involved with any organized
gang. Attention was also drawn to the observations made on
the Petitioner’s role by the High Court/Trial Court in the orders
which granted him bail.
16. Learned senior counsel submitted that he is tempted, in the
above backdrop, to also go into the main merits, but being
conscious that the present petition is only for an interim bail,
that too, for a specific purpose, he refrains from the same. He
submits that his case for regular bail is pending before the
High Court, wherein the next date for hearing fixed is
20.02.2025. It was informed in the pending two cases also, the
bail applications are next fixed on dates after conclusion of the
elections.
THE RESPONDENT’S REPLY:
9
17. Per contra, the sole respondent opposed the petition. Mr. S. V.
Raju, the learned Additional Solicitor General 5, appearing for
the respondent submitted that the present petition is
misconceived. It was submitted that when on a specific prayer
made before the High Court, custody parole was granted only
to fill up and submit his Nomination Papers, the matter should
have attained finality there itself. It was vehemently submitted
that the right to contest elections is not a Fundamental Right
and the fact that the Petitioner has been allowed to fill up his
Nomination Form indicates that the High Court was indulgent
to allow him to participate in the Election, but a right to
campaign would not be a necessary corollary to the
indulgence granted, for the reason that various other modes of
campaigning are available to him apart from physically eg., by
way of pamphlets, etcetera.
18. Learned ASG submitted that even under the relevant electoral
laws, the right to vote is not available to a person who is
behind bars. If the Petitioner, at present behind bars, is
allowed to come out, he would have a right to vote which
would be an infringement of the statutory provision under
Section 626 of the Representation of the People Act, 1951,5
Abbreviated to ‘ASG’.
6
‘62. Right to vote.—(1) No person who is not, and except as expressly provided by this Act, every person who is, for
the time being entered in the electoral roll of any constituency shall be entitled to vote in that constituency.
(2) No person shall vote at an election in any constituency if he is subject to any of the disqualifications referred to in
Section 16 of the Representation of the People Act, 1950 (43 of 1950).
(3) No person shall vote at a general election in more than one constituency of the same class, and if a person votes in
more than one such constituency, his votes in all such constituencies shall be void.
(4) No person shall at any election vote in the same constituency more than once, notwithstanding that his name may
have been registered in the electoral roll for that constituency more than once, and if he does so vote, all his votes in
that constituency shall be void.
(5) No person shall vote at any election if he is confined in a prison, whether under a sentence of imprisonment or
transportation or otherwise, or is in the lawful custody of the police:
10
especially Section 62(5).
19. Learned ASG stated that the Court should consider the
balance of equity between the parties and in the present case,
the same is heavily tilted in favour of the prosecution, for the
reason that in view of the nature of the allegations levelled
against the Petitioner, his coming out on bail would lead to
many other complexities inasmuch as he would be getting in
touch with the witnesses of the cases and would also be in a
position to dominate them under the garb of a Ward Councillor.
Moreover, it was submitted that in the larger picture, the Court
would also consider as to whether inference in the present
case would lead to a precedent where similarly-situated
convicts/undertrial prisoners, just to get out of jail, may stand in
any election. Learned ASG expressed an apprehension that
given the position in our country, where elections are held at
regular intervals somewhere or the other, chances of misuse of
an order of interim bail in the present case, are real and not
imaginary. It was submitted that if the Petitioner is so confident
of his work and position in society, he would not be required to
physically canvass and if at all, he is the choice of the
electorate, the electorate would be wise enough and vote for
him, and then the consequences may follow. Learned ASG has
also taken us through various judgments in support of the
proposition that the statute prohibits the grant of bail in like
cases. Additionally, it was submitted that the present petition
Provided that nothing in this sub-section shall apply to a person subjected to preventive detention under any law for the
time being in force:
Provided further that by reason of the prohibition to vote under this sub-section, a person whose name has been entered
in the electoral roll shall not cease to be an elector.
(6) Nothing contained in sub-sections (3) and (4) shall apply to a person who has been authorised to vote as proxy for
an elector under this Act in so far as he votes as a proxy for such elector.’
11had been rendered infructuous, and the Court could not
prejudge the case, moreso when the High Court is yet to apply
its mind on the merits, as the regular bail plea is pending. The
learned ASG submitted that the Court ought to refrain from
granting interim bail to the Petitioner as the same would be
purely academic, in the background of the Petitioner still being
in custody in two other cases, including one under the PMLA,
in which he is unlikely to be granted relief.
20. Learned ASG distinguished the case of Arvind Kejriwal
(supra) on the ground that he was the President of a National
Party, and in the General Elections to the House of the People,
he was required to campaign for his party. It was urged that
such factual element was missing in the present case, as the
Petitioner was elected as a Ward Councillor on a ticket from
the Aam Aadmi Party7, but this time he is a candidate on
behalf of All India Majlis-e-Ittehadul Muslimeen8 (hereinafter
referred to as ‘AIMIM’), which is different party. It was
contended that AIMIM as a political party is sufficiently capable
to canvass for him and he is not the only person who is left to
campaign. Thus, his interest to that extent stands
safeguarded.
21. Further, it was pointed out that Arvind Kejriwal (supra) has
been distinguished by a 3-Judges’ Bench in Order dated
08.07.2024 passed in Special Leave Petition (Criminal)
Nos.7684-7885 of 2024 titled Directorate of Enforcement v
Sadhu Singh Dharamsot. It was submitted that Sadhu Singh
Dharamsot (supra) clarified that the decision in Arvind
7
Recognised as a National Party by the Election Commission of India (hereinafter referred to as ‘ECI’).
8
Recognised as a State Party in Telangana by the ECI.
12
Kejriwal (supra) ‘was passed, as the matter was sub judice
and for the reasons set out in paragraphs 7, 8 and 15 of the
said order.’ It was advanced that, in essence, the appellant
therein occupied the positions of President of a National Party
and Chief Minister.
REJOINDER BY THE PETITIONER:
22. Learned senior counsel for the Petitioner submitted that the
Court, in Sadhu Singh Dharamsot (supra), in fact, refused to
interfere in the bail granted therein. It was submitted that
Sadhu Singh Dharamsot (supra) does not deviate from the
principles laid down in Arvind Kejriwal (supra). Mr Aggarwal,
learned senior counsel, submitted that even the paragraphs
from Arvind Kejriwal (supra), as referred to in Sadhu Singh
Dharamsot (supra), would support the Petitioner.
23. He submitted that as regards the present FIR, eight co-
accused are already on bail, including two of the main
assailants, who as per two eye-witnesses, were the persons
who had actually killed the deceased. On the aspect of
recovery of articles, the submission was that they relate to
other cases, where the Petitioner is already on bail. Qua the
PMLA case, it was submitted that out of the prescribed
maximum sentence of 7 years, the Petitioner has undergone
approximately 4 years and 5 months behind bars, and as such,
would be entitled to the benefit of Section 436-A 9 of the Code
9
‘436-A. Maximum period for which an undertrial prisoner can be detained.—Where a person has, during the period
of investigation, inquiry or trial under this Code of an offence under any law (not being an offence for which the
punishment of death has been specified as one of the punishments under that law) undergone detention for a period
extending up to one-half of the maximum period of imprisonment specified for that offence under that law, he shall be
released by the Court on his personal bond with or without sureties:
13
of Criminal Procedure, 1973.
ANALYSIS, REASONING AND CONCLUSION:
24. Insofar as Sadhu Singh Dharamsot (supra) is concerned, I
may record that the said petition was dismissed as infructuous,
although with a clarification on Arvind Kejriwal (supra), as the
interim bail therein was till 06.06.2024, whilst it was taken up
for hearing on 08.07.2024.
25. I do not doubt the propositions of law eloquently recorded in
Brother Mithal’s opinion. I have noted the guiding precedents
in the Prelude and would deal with some more hereafter.
26. The law, as it stands today, is that merely because a statute
imposes limitations on grant of bail, the same would not per se
oust the jurisdiction of a Constitutional Court to grant bail, as
held in Union of India v K A Najeeb, (2021) 3 SCC 713 10.
Pertinently, Najeeb (supra), rendered by a Bench of 3-Judges,
was distinguished by a 2-Judge Bench in Gurwinder Singh v
Provided that the Court may, after hearing the Public Prosecutor and for reasons to be recorded by it in writing, order
the continued detention of such person for a period longer than one-half of the said period or release him on bail
instead of the personal bond with or without sureties:
Provided further that no such person shall in any case be detained during the period of investigation, inquiry or trial
for more than the maximum period of imprisonment provided for the said offence under that law.
Explanation.—In computing the period of detention under this section for granting bail, the period of detention passed
due to delay in proceeding caused by the accused shall be excluded.’
10
‘17. It is thus clear to us that the presence of statutory restrictions like Section 43-D(5) of the UAPA per se does not
oust the ability of the constitutional courts to grant bail on grounds of violation of Part III of the Constitution. Indeed,
both the restrictions under a statute as well as the powers exercisable under constitutional jurisdiction can be well
harmonised. Whereas at commencement of proceedings, the courts are expected to appreciate the legislative policy
against grant of bail but the rigours of such provisions will melt down where there is no likelihood of trial being
completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part
of the prescribed sentence. Such an approach would safeguard against the possibility of provisions like Section 43-D(5)
of the UAPA being used as the sole metric for denial of bail or for wholesale breach of constitutional right to speedy
trial.’
(emphasis supplied)
14State of Punjab, (2024) 5 SCC 403. However, in the Review
Petition preferred thereagainst viz. Gurwinder Singh v State
of Punjab, 2024 SCC OnLine SC 1777, the 2-Judge Bench
clarified, while dismissing the Review Petition, that ‘our
decision is to be construed on the facts dealt with by us.’ This
apart, the exposition in Najeeb (supra) has been reiterated by
another 2-Judge Bench in Javed Gulam Nabi Shaikh v State
of Maharashtra, (2024) 9 SCC 813 and Sheikh Javed Iqbal v
State of Uttar Pradesh, (2024) 8 SCC 29311.
27. I have examined the allegations and the evidence against the
Petitioner. No doubt, they are grave and reprehensible but as
of this moment they are exactly that – allegations. It is settled
law that magnitude and gravity of the offence alleged are not
grounds, in and by themselves, to deny bail [Para 18 12 of K A
Najeeb (supra) and Jalaluddin Khan v Union of India,
(2024) 10 SCC 574], moreso when trial is prolonged. The
Petitioner’s rights under Articles 14 13 and 2114 of the11
‘42. This Court has, time and again, emphasised that right to life and personal liberty enshrined under Article 21 of
the Constitution of India is overarching and sacrosanct. A constitutional court cannot be restrained from granting bail
to an accused on account of restrictive statutory provisions in a penal statute if it finds that the right of the accused-
undertrial under Article 21of the Constitution of India has been infringed. In that event, such statutory restrictions
would not come in the way. Even in the case of interpretation of a penal statute, howsoever stringent it may be, a
constitutional court has to lean in favour of constitutionalism and the rule of law of which liberty is an intrinsic part. In
the given facts of a particular case, a constitutional court may decline to grant bail. But it would be very wrong to say
that under a particular statute, bail cannot be granted. It would run counter to the very grain of our constitutional
jurisprudence. In any view of the matter, K.A. Najeeb [Union of India v. K.A. Najeeb, (2021) 3 SCC 713] being rendered
by a three-Judge Bench is binding on a Bench of two Judges like us.’
(emphasis supplied)
12
‘18. Adverting to the case at hand, we are conscious of the fact that the charges levelled against the respondent are
grave and a serious threat to societal harmony. Had it been a case at the threshold, we would have outrightly turned
down the respondent’s prayer. However, keeping in mind the length of the period spent by him in custody and the
unlikelihood of the trial being completed anytime soon, the High Court appears to have been left with no other option
except to grant bail. An attempt has been made to strike a balance between the appellant’s right to lead evidence of its
choice and establish the charges beyond any doubt and simultaneously the respondent’s rights guaranteed under Part
III of our Constitution have been well protected.’
(emphasis supplied)
13
‘14. Equality before law.—The State shall not deny to any person equality before the law or the equal protection of
the laws within the territory of India.’
14
‘21. Protection of life and personal liberty.—No person shall be deprived of his life or personal liberty except
according to procedure established by law.’
15
Constitution of India cannot be lost sight of. As on date, no
Court of Law has convicted the Petitioner. The following
passage from Javed Gulam Nabi Shaikh (supra) is attracted
squarely:
‘18. We may hasten to add that the petitioner is still an
accused; not a convict. The over-arching postulate of
criminal jurisprudence that an accused is presumed to
be innocent until proven guilty cannot be brushed aside
lightly, howsoever stringent the penal law may be.’
28. Further, I deem it appropriate to advert to the contention urged
by the learned ASG, that the Court ought to refrain from
granting interim bail to the Petitioner as the same would be
purely academic, in the background of the Petitioner still being
in custody in two other cases, including one under the PMLA,
in which he is unlikely to be granted relief. The said
proposition, to my mind, if accepted, would amount to this
Court abdicating its responsibility of deciding the lis before it by
being influenced by factors not germane inasmuch as the
consideration for interim bail in the present case cannot be
contingent upon prior grant of similar relief in the two other
cases. Moreso, for the reason that the matter relating to the
two other cases is pending before courts subordinate to this
Court. That said, I am not of the opinion that the lis raised
herein is academic or should await the outcome of cases in the
courts subordinate to this Court.
29. The Petitioner is in custody since March, 2020. He has
secured bail in a majority of the cases. The High Court
permitted him to file his Nomination and consequently stand as
a candidate. On the short point of period under custody
16already undergone as also the bail secured in the other cases,
I am of the considered view that, subject to appropriate
conditions being imposed, the Petitioner can be granted
interim bail for a limited period. Ordered accordingly.
30. The Petitioner is, thus, enlarged on interim bail, however, only
upto the noon of 04.02.2025, imposing the conditions
prescribed in Sections 480(3)(b) 15 and 482(2)(ii)16 of the
Bharatiya Nagarik Suraksha Sanhita, 2023. It is further
directed that the Petitioner shall not, during campaigning,
make any reference whatsoever to any of the pending cases
and/or the Delhi Riots of 2020. The Petitioner shall, during the
period of his release, confine himself to the limits of the
Mustafabad Constituency. The Petitioner will deposit his
passport, if any, with the Trial Court. The Trial Court may
impose additional conditions consistent with the above.
31. The Petitioner shall surrender before the concerned jail
authorities at/before the time afore-indicated, failing which
coercive steps shall be resorted to by the respondent. I
pondered over whether to issue a direction to the Petitioner to
share his real-time location with the Investigating Officer, but in
view of the pronouncement directly on point in Frank Vitus v
Narcotics Control Bureau, [2024] 7 SCR 9717, am not so
15
‘that such person shall not commit an offence similar to the offence of which he is accused, or suspected, of the
commission of which he is suspected; …’
16
‘a condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person
acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police
officer;’
17
‘10.2. Imposing any bail condition which enables the Police/ Investigation Agency to track every movement of the
accused released on bail by using any technology or otherwise would undoubtedly violate the right to privacy
guaranteed under Article 21. In this case, the condition of dropping a PIN on Google Maps has been incorporated
without even considering the technical effect of dropping a PIN and the relevance of the said condition as a condition of
bail. This cannot be a condition of bail. The condition deserves to be deleted and ordered accordingly. In some cases,
this Court may have imposed a similar condition. But in those cases, this Court was not called upon to decide the issue
of the effect and legality of such a condition.’
17inclined.
32. This Special Leave Petition (Criminal) is disposed of
accordingly, modifying the Impugned Judgment pro tanto.
Needless to state, observations made are only on the issue
which arose for determination.
SEQUEL:
33. The grant of interim bail vide the present Judgment is not to be
treated as a conclusive opinion on the merits of the underlying
bail application or the main case before the Trial Court, lest it
prejudice either side.
34. Learned Brother Mithal has rightly opined that a Pandora’s Box
cannot be permitted to be opened by letting a horde of
convicts and/or undertrial prisoners seek release for the
purpose of trying their luck at the electoral hustings. Likewise,
the learned ASG’s apprehension that others, whether similarly-
situated or not, may seek to (mis)use this Judgment, is not
unjustified.
35. I would therefore, necessarily, insert the caveat that this
Judgment has been passed in facts and circumstances
specific to this case. Were any litigant, in futuro, to cite this in a
later case, I am sure the Court concerned would examine such
case on its merits and on its own factual prism. When any
court is called upon to apply and/or follow precedent, it is for
that court to examine whether or not the precedent is attracted
in that particular case. It would not be out of place to recall the
18
following passage from Sanjay Dubey v State of Madhya
Pradesh, 2023 SCC OnLine SC 610:
‘18. … Yet, as our discussions in the preceding
paragraphs display, the same are inapplicable to the
extant factual matrix. It is too well-settled that judgments
are not to be read as Euclid’s theorems; they are not to
be construed as statutes, and; specific cases are
authorities only for what they actually decide. We do not
want to be verbose in reproducing the relevant
paragraphs but deem it proper to indicate some
authorities on this point – Sreenivasa General
Traders v. State of Andhra Pradesh, (1983) 4 SCC
353 and Amar Nath Om Prakash v. State of
Punjab, (1985) 1 SCC 345 – which have been
reiterated, inter alia, in BGS SGS Soma JV v. NHPC
Limited, (2020) 4 SCC 234, and Chintels India
Limited v. Bhayana Builders Private Limited, (2021) 4
SCC 602.’
(emphasis supplied)..…………………………………J.
[AHSANUDDIN AMANULLAH]
NEW DELHI
JANUARY 22, 2025
IN THE SUPREME COURT OF INDIA
EXTRA ORDINARY JURISDICTIONSPECIAL LEAVE PETITION(CRIMINAL) NO. 856/2025
MOHD. TAHIR HUSSAIN PETITIONER(S)
VERSUS
STATE OF NCT OF DELHI RESPONDENT(S)
ORDER
Since our opinions are differing, we
direct the Registry to place the papers
immediately before Hon’ble the Chief Justice of
India.
……………………………………………………J.
[PANKAJ MITHAL]
……………………………………………………J.
[AHSANUDDIN AMANULLAH]
NEW DELHI;
JANUARY 22, 2025.