His Lordship Mr. Justice PANKAJ MITHAL, J.
Petition is in custody
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.
Petitioner is participating bail remaining behind the bars
3. The petitioner so far has not been successful in getting bail in the above case and some other cases, so he applied to the High Court for grant of interim bail from 14.01.2025 to 09.02.2025 simply to participate 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.
Interim bail moved was disallowed by Hon’ble High Court but granted conditional custody parole
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.
Appeal against custody parole granted
5. The petitioner is not satisfied by the grant of custody parole for filing his nomination enabling 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.
Right to campaign or canvass is neither a fundamental right nor a constitutional right
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.
No provision for interim bail under law
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 Enforcement [(2024) 9 SCC 577] this Court quoted with approval from Athar Pervez [2016 SCC OnLine Del 6662] 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.”
Reasons for granting interim bail discussed
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.
Allowing accused in interim bail to canvas or to contest in election would be in conflict with provision section 62(5) Representation of People Act, 1951
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 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.
There are many ways to canvassing election without appearing
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.
Accused who are in custody and undertrial even granted bail be restricted
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 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.
24. In simple words, interim bail is not permissible for 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.
His Lordship Mr. Justice AHSANUDDIN AMANULLAH, J [dissenting]
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.
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.
Analysis, reasoning and conclusion
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. Pertinently, Najeeb (supra), rendered by a Bench of 3-Judges, was distinguished by a 2-Judge Bench in Gurwinder Singh v State 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 293.
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 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)
Party
Mohd. Tahir Hussain Petitioner(S) versus State of Nct of Delhi Respondent(S) – Extra Ordinary Jurisdiction Special Leave Petition (Criminal) No. 856/2025 – 2025 INSC 100 – JANUARY 22, 2025 – PANKAJ MITHAL J. AHSANUDDIN AMANULLAH [Bench dissents].
