‘Trial would take time to conclude’: HC grants bail to Tahir Hussain in five Delhi riots cases

Justice Dayal opined that in each of the FIRs in the matter, Hussain “would be entitled to bail”, due to “some of the offences being bailable, the period of incarceration exceeding the maximum periods of sentence prescribed, all other co-accused having been given bail, charges not being framed in three of the FIRs even after 3 years, and even in the two FIRs where there are allegations of firearm injury, the person accused of shooting having already been given bail”.

Justice Dayal, however, said that these observations have “no bearing on the other FIRs registered” against Hussain which were not before the HC and hence were “outside the scope of scrutiny”. The judge also noted that there may be other proceedings which are not before the HC and the “fate” of Hussain’s custody will also depend upon those legal proceedings”.

Observing it a “fit case”, Justice Dayal released Hussain on bail in these five FIRs on him furnishing a personal bond of Rs 1 lakh each and subject to certain conditions. One of the conditions is that Hussain “shall not indulge in any criminal activity and shall not communicate with or come in contact with any of the prosecution witnesses, the complainants/victims or any member of the complainants/victims’ family or tamper with the evidence of the case”.

“Needless to state, but any observation touching the merits of the case is purely for purposes of deciding the question of grant of bail and shall not be construed as an expression on merits of the matter,” the HC said.

The five FIRs arose out of rioting incidents which occurred on February 24 and 25, 2020, in parts of Delhi during “alleged protests against the Citizenship Amendment Act, 2019”.

With respect to the first FIR, the HC said charges under IPC section 436 (mischief by fire) had been “dropped” by the Sessions Court on October 19, 2022, and the state of Delhi had not filed an appeal against this order.
With respect to the offences under other sections in this FIR, including rioting, rioting with deadly weapon, common object of unlawful assembly and criminal conspiracy, it noted that they are “all bailable offences and, therefore, the issue of grant of bail is a foregone conclusion”. It further noted that the maximum punishment for these offences is two-three years and Hussain has already been in “custody for more than 3 years”.

“Moreover, all the other nine accused have been granted bail. The petitioner was arrested on 22nd April 2020 and has already been incarcerated for the last three years. The chargesheet was filed as far back as on 18th July 2020, but no charges have been framed as yet. Considering that there are a number of witnesses, the trial will take a long time to conclude,” Justice Dayal said.

With respect to the second FIR, the HC said that it relates to an allegation by one Ajay Kumar Jha regarding a firearm injury for which the alleged victim did not name Hussain nor was he ever accused of brandishing the weapon. The HC said the credibility of police witnesses (two constables) had been doubted by the HC in another riot case where the HC granted bail to co-accused.

The court also noted that Hussain had been discharged of offences under sections 436 (mischief by fire), 505 (statements conducing to mischief) IPC and the Arms Act by the Sessions Court in its October 13, 2020 order. It also noted that the state had not moved an appeal against this order. No appeal has been filed by the State against the said order.

“The petitioner has already been in custody for more than three years now. As regards offence punishable under Section 307 (attempt to murder) r/w 120B (criminal conspiracy), IPC, the evidence is purely circumstantial in nature, since the credibility of the eyewitnesses has already been diluted by observations of this Court in Kasim v. State (supra),” the HC said, adding that even the forensic science laboratory report does not support the prosecution’s case.

“As regards the charge under section 302 (murder) IPC, the complainant complained of only an injury, and there is nothing on record to state if there was any other named deceased. Perusal of the FIR, chargesheet, order on charge, status report does not reveal if there was any named deceased in this FIR. There is reference generally to persons being killed in the riots, as also to the murder of one Ankit Sharma, an intelligence official for which FIR no. 65/2020 had been registered (as per the charge-sheet). Why the charge under section 302 IPC has been framed even when it did not form part of the FIR or the chargesheet, is an issue outside the purview of this bail petition and does not necessitate any further deliberation,” the HC said.

It also noted that Hussain had been in custody since May 6, 2020 under this FIR which is over three years and the five other accused including the one from whom the gun was recovered and who was accused of “firing the shot” had been granted bail. The court further said that there were 51 witnesses in this matter and it would take time to conclude the trial.

On the third FIR, the HC said that it was lodged based on a complaint by Prince Bansal, who alleged that he had received a firearm injury. The HC reiterated that the all other co-accused had been granted bail including the one who had allegedly fired the shot and Hussain had been discharged for offences under the petitioner has been discharged for offences under sections 436 (mischief by fire) and 505(statements conducing to mischief) and IPC, while offences such as rioting, rioting with deadly weapon were bailable in nature.

On the fourth FIR, the HC said that despite the charge sheet being filed in July 2020 the charges had not been framed in that case. It said that Hussain was not named in the FIR, and with respect to the offence of mischief by fire Hussain had been discharged in other FIRs. With respect to offences under the fourth FIR, such as rioting, rioting with deadly weapon etc., the same are bailable in nature, the HC said. It further said that the maximum imprisonment for the offences mentioned under this FIR was either two or three years which Hussain had already undergone, adding that there were “33 witnesses for which the trial will take time to conclude”.

With respect to the fifth FIR, filed on July 17, 2020 the HC said that Hussain had already undergone “more than three years of custody, while all of the other nine co-accused have been granted bail”; it added that Hussain was “not named in the FIR and the complainant later improved upon his statements”.

“As regards the offence punishable under section 436 (mischief by fire) r/w 120B (criminal conspiracy) IPC, it is noted above that the petitioner had been discharged in other offences for lack of evidence by the learned Sessions Court. Further, offences punishable under sections 147 (rioting), 148 (rioting with deadly weapon), 149 (common object), 427 (mischief) r/w 120B (criminal conspiracy) IPC, are bailable in nature and in any event the maximum punishment prescribed is either 2 or 3 years,” the HC said adding that Hussain had “already undergone” more time than this period. It further said that there are 44 witnesses and the trial will take time to conclude and despite the chargesheet which was filed in July 2020 charges had not been framed.