The Supreme Court on Tuesday granted custody parole to former Aam Aadmi Party (AAP) Councillor Tahir Hussain from January 29 to February 3, allowing him to campaign for the upcoming Delhi Assembly polls as an All India Majlis-e-Ittehadul Muslimeen (AIMIM) candidate.
The order was passed by the three-judge Bench of Justice Vikram Nath, Justice Sanjay Karol and Justice Sandeep Mehta.
The Apex Court imposed several conditions on Hussain and said the bail plea application pending before the Delhi High Court would be decided on its own merits.
Hussain was permitted to leave jail (along with security) for 12 hours every day as per the jail manual, only during the day time. He was directed to return each night.
He was ordered to abide by all the undertakings given for custody parole by his Counsel. The accused was asked not to visit his residence in Karawal Nagar and to abstain from making any comments regarding pending cases while out on parole.
The Apex Court directed the former AAP Councillor to pay Rs 2,47,000, half of the expenses to be borne by the State while he was out on custody parole. Expenses for the first two days of custody parole were to be paid by 6 pm today, it added.
Earlier in the day, the top court of the country asked the Delhi government to give information on how much security personnel and costs would be required if Hussain was granted custody parole instead of interim bail in all the cases in which he was yet to get bail.
Additional Solicitor General (ASG) SV Raju, appearing for Delhi Police, vehemently opposed the custody parole.
The ASG, however, apprised the Apex Court that it would cost over Rs 4 lakh a day to deploy security staff and make other arrangements to facilitate Hussain’s custody parole.
He contended that Hussain should not be released for the entire day, in case he was granted custody parole. He should only be allowed to leave the jail premises during day time and return during night, as per exit and entry times in the jail manual.
The Apex Court allowed Hussain to exit jail on entry parole, while accompanied by security, during the day time, to canvass for the elections till February 3.
Hussain earlier sought interim bail in connection with one of the cases related to the Delhi riots, in which an Intelligence Bureau (IB) officer named Ankit Sharma had died. the accused had submitted in his bail plea that he was already granted bail in other similar cases related to Delhi riots.
The top court of the country, however, today pointed out that even if Hussain was granted interim bail in the Delhi riots case, there were two other cases, including a money laundering case, in which he was yet to get bail.
Appearing for the accused, Senior Advocate Siddharth Aggarwal suggested that Hussain be granted custody parole in all cases in which he was yet to get bail.
The Senior Counsel said Hussain was willing to stay in a hotel instead of his residence, so as to allay concerns of influencing witnesses.
ASG SV argued that the grant of custody parole would pave the way for more and more prisoners to simply file nomination papers for elections, in order to get similar relief.
On January 22, a two-judge Bench of Justice Pankaj Mithal and Justice Ahsanuddin Amanullah delivered a split verdict on the interim bail plea of Hussain.
While Justice Mithal dismissed the petition, Justice Amanullah granted interim bail to Hussain.
Following the divergence, the Registry was directed to place the matter before the Chief Justice of India to either refer the matter to a third judge, or a larger bench.
On January 14, the Delhi High Court granted custody parole to the AIMIM leader to file nomination papers from the Mustafabad constituency on an AIMIM ticket.
It, however, refused to grant him interim bail from January 14 to February 9 to fight the polls, saying that the gravity of allegations against Hussain, being the main perpetrator in the violence, resulting in the death of several persons, could not be overlooked.
The High Court further pointed out that about 11 FIRs were registered against Hussain in connection with the riots. It noted that the accused was in custody in a related money laundering case and another case registered under the Unlawful Activities (Prevention) Act.
Hussain challenged this order in the Apex Court.
In his order, Justice Mithal observed that the right to contest in elections was not a fundamental right. The right to contest the elections was further protected by the High Court’s order granting custody parole to file nominations.
He pointed out that allowing interim bail for the purpose of contesting elections could open a ‘Pandora’s box’ as every undertrial would take this ground.
Justice Mithal said since elections were held all year round, every undertrial would come with the plea that he wanted to participate in elections and therefore, be granted interim bail. This would open floodgates, which could not be permitted.
Once such a right was recognised, as a sequel, the petitioner would ask for the right to vote, circumscribed by Section 62 of the Representation of Peoples Act, he added.
Referring to the charge sheet filed by Delhi Police against Hussain, the judge pointed out that the rooftop of Hussain’s house/office was used as the epicentre for the offences.
Releasing Hussain on interim bail for canvassing would amount to allowing him to go for door-to-door canvassing and hold meetings in the locality where the crime took place and witnesses reside. There was high possibility of the accused meeting the witnesses, noted Justice Mithal.
He further observed that canvassing for 10-15 days would not suffice the purpose in as much as a constituency has to be nurtured for years, for contesting. If the petitioner had not nurtured the constituency for the past few years sitting in jail, there was no reason why he should be released.
While acknowledging the seriousness and gravity of the allegations, Justice Amanullah said that the same remained as only allegations at the present moment.
He granted interim bail to Hussain till February 4, 2024, subject to the conditions in Section 482 and 484 BNSS 2023.
Justice Amanullah passed the order on the grounds of the period undergone under custody (five years) and the fact that bail had been granted in other cases. The judge further took into account the fact that Hussain should not raise the issues in the FIRs during his campaigning. He was directed to surrender by the noon of February 4, 2024.