Delhi High Court grants custody parole to Tahir Hussain to file nomination papers for Delhi polls

The Delhi High Court on Tuesday granted custody parole to former Aam Aadmi Party (AAP) councillor Tahir Hussain in the Delhi riots case to enable him to file his nomination papers to contest the upcoming Delhi Assembly elections as an All India Majlis-e-Ittehadul Muslimeen (AIMIM) candidate..Justice Neena Bansal Krishna declined to grant interim bail to Hussain to contest and campaign for the elections.The Court instead granted custody parole to Hussain to subscribe to oath and file his nomination papers subject to the following conditions:(i) he shall not have any access to the phone, whether mobile or landline or the internet;(ii) he would not interact with any person except the officials concerned in the Nomination process;(iii) he will not address the media; and(iv) family members 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..The Court also directed the State to facilitate the filing of the nomination papers.Hussain is an accused in the case concerning the death of Intelligence Bureau (IB) officer Ankit Sharma who was killed during the riots of February 2020 in the national capital. Hussain has been in judicial custody since March 16, 2020.In his petition, Hussain had sought interim bail from January 14 to February 9 to enable him to contest the Delhi Assembly elections from the Mustafabad constituency as a member of All India Majlis-e-Ittehadul Muslimeen. He argued that his physical presence would be required for election procedures such as filing of nominations and for election campaigns. He added that although he is an accused in nine other cases related to the Delhi riots, he has obtained bail in all other cases except the case concerning the death of Ankit Sharma..Representing Hussain, Senior Advocate Rebecca John argued,"Filing of nominations is a complicated procedure, it has to be filed by 17th."Hussain's plea was opposed by the Central government. Additional Solicitor General (ASG) Chetan Sharma argued that the trial against Hussain is at a very crucial stage and that he may influence witnesses if his interim bail plea is allowed. "Right to contest is not fundamental (right) if you are charged with very serious charges ... People have won from jail ... In the UAPA case, Hussain is the mastermind. He was pivotal to (the rioting) which left many people dead. He is the main dramatis personae. If (bail plea is) allowed, it may or shall have the effect of polarising, which is very sensitive, we cannot have that," the ASG contended. .Hussain's counsel countered that he has already served half the prison sentence applicable in one of the cases against him and that he has also got bail in the case referred to by the ASG. "In the ED case, I have served half the sentence. I have already been granted bail in the case ASG is pointing to. In the Kejriwal case, the power to exercise interim bail is given - this case is no exception," John said. She also recounted that a Delhi court had earlier allowed interim bail to Engineer Rashid, who is also facing charges under the Unlawful Activities (Prevention) Act, to contest polls. "I have not been convicted. Presuming that campaigning will be over on 4th (February), I will surrender immediately after that," she added. The ASG, however, said that in Engineer Rashid's case, the probe agency itself had conceded that there was some delay in the trial. It was also submitted that Hussain's case was different from the case of Arvind Kejriwal, who was also allowed interim bail by the Supreme Court to contest in the General Assembly polls last year. "In Kejriwal's case, it was noted that he was not found to be a threat to the society. Here the nuance is different, he (Hussain) is the main accused. In ED case, there was a delay of 400 days. NIA made a concession on its own in Rashid Engineer's case," the ASG said. .The Court accepted these arguments and stated that facts in Arvind Kejriwal and Abdul Rashid case cannot be a precedent in the present case. In Kejriwal's case, he was the Chief Minister of Delhi and a leader of a national party. Abdul Rashid was given bail by the State itself for contesting Legislative Assembly Elections of Jammu & Kashmir. The Court stated that peculiarities of each case have to be considered independently to ascertain whether interim bail can be granted. "In the present case, the petitioner is a former Municipal Councilor of Aam Aadmi Party and is not a sitting Member of Parliament. The gravity of allegations against the 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 petitioner had earlier been a Municipal Councilor cannot be a peculiar circumstance entitling him to grant of interim bail," the Court stated. It also noted that there are 11 FIRs against Hussain in relation to the Delhi riots and he is yet to get bail in two of those FIRs (which includes the present case) as well as a money laundering case. "The 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," the Court said.Hence, the Court found it fit to grant him custody parole. .Hussain's regular bail petition will be heard on February 20. .Senior Advocate Rebecca John, with advocates Rajiv Mohan, Tara Narula, Shivangi Sharma, Sonal Sarda, Rishabh Bhati, Anushka Baravah, Rehan Khan, Chinmay Kanojia, Nilanjan Dey and Chandveer Shoran appeared for Hussain. ASG Chetan Sharma, Special Public Prosecutor Rajat Nair and advocates Dhruv Pande, Amit Gupta, Shubham Sharma and Vikramaditya Singh appeared for State. .[Read Order].[Read Live Coverage]