In a big jolt to Tahir Hussain who was accused of masterminding the Delhi riots, a Delhi Court of Karkardooma in State V/s Tahir Hussain in FIRs No. 80/2020, 117/2020 & 120/2020 Bail Applications No. 1197/2020, 1196/2020 and 1153/2020 has dismissed an application for bail by suspended Aam Aadmi Party (AAP) councillor Tahir Hussain in three cases of rioting, arson, murder and conspiracy connected with the communal riots that rocked North-East Delhi in February 2020.

In denying him bail, Additional Sessions Judge Vinod Yadav observed that Hussain's house had become a hub of rioters and rabble-rousers to unleash what he described as the worst communal riots since partition in Delhi. The Judge also said in its 18-page order that the riots were a gaping wound in the conscience of a nation aspiring to be a major global power.

To be sure, it is clarified in para 2 that:
All the three bail applications are being disposed off by way of a common order, as the facts involved qua the applicant in the matters are common.

Needless to say, it is then stated in para 3 that:
Before proceeding further, it would be appropriate to have a brief synopsis of the facts which gave rise to registration of FIRs in all the aforesaid three matters.

While stating the brief facts of the case, it is then stated of facts qua registration of case FIR No. 80/2020 in para 4 that:
This case FIR was registered on 28.02.2020, pursuant to PCR call received vide GD No. 45-A, dated 25.02.2020 which was regarding about 100 people standing on the terrace of the house of applicant with petrol bombs and throwing the same on the persons belonging to another community. The incident(s) in the matter occurred on 25.02.2020 between 2.00 PM to 4.00 PM at Chand Bagh puliya, wherein numbers of houses, shops and public properties were damaged and burnt by the rioters.

While dwelling on facts qua registration of case FIR No. 117/2020, it is then stated in para 5 that:
The case FIR in the matter was registered on 04.03.2020 on the written complaint dated 03.03.2020, made by Shri Zeeshan, S/o Shri Fajlu Rehman, r/o House No. 1280, Gali No. 18/3, Nehru Vihar, New Delhi. Complainant Zeeshan in his written complaint dated 03.03.2020 stated that he had a furniture shop at B-2/10, between Gali No. 6 and 7, main Sherpur Chowk, Delhi. On 23.02.2020, he had closed his aforesaid shop as per routine and did not open the same on 24.02.2020 on account of eruption of communal riots in the area. It was further stated by him that on 25.02.2020 he received a call that the shutter of his aforesaid shop had been broken and articles lying therein looted by the rioters, as a result of which he had to incur a loss of about Rs. 20.00 lakhs.

While mentioning about facts qua registration of case FIR No. 120/2020, it is then stated in para 6 that:
This case FIR was registered on 04.03.2020 on the complaint of Irshad Ali, S/o Shri Shamshad Ali, wherein he stated that he had been running a rented shop by the name of Royal Mattresses at 406-A, Moonga Nagar, Delhi. Smt. Rekha Garg, W/o Shri Brijmohan Garg is the owner of the said shop. On 23.02.2020 he had closed his shop as usual, but on account of eruption of communal riots in the area he did not open the same on 24.02.2020. On 24.02.2020 itself, he received a call that the shutter of his shop had been broken, articles lying therein looted and thereafter the same was set on fire by the riotous mob, as a result of which he incurred loss of around Rs. 17-18.00 lakhs.

Significantly, it is then held in para 26 that:
From the evidence of a number of witnesses recorded in the matter, it is prima facie apparent that the riotous mob armed with lethal weapons had engaged in vandalism, looting and torching of public and private properties and their main objective was to cause maximum damage to the lives and properties of persons belonging to other community. Therefore, at this stage it cannot be said with certainty that the applicant did not have a common object with the other persons of unlawful assembly.

The common object of this kind of riotous mob can be easily inferred therefrom. This Court is conscious that at this stage the trial is not being dealt with. We are at pre-cognizance/pre-committal stage and this Court has limitations in making in-depth analysis of the statements of witnesses which are yet to be tested on the anvil of trial. Whether he can be convicted in the matter with the aid of Section 149 IPC is a preposterous conclusion at this stage, as the evidence is yet to be led in the matter. However, from the aforesaid behavior of riotous mob, the common object can be inferred at this stage.

More significantly, it is then pointed out in para 27 that:
Even if there is no video footage or CCTV footage, showing the presence of applicant at the spot, but there is enough ocular evidence available on record. The independent public witnesses in the matters namely:

1. Khaleel,
2. Irfan,
3. Surender Singh,
4. Rajbir Singh Yadav,
5. Pradeep Kumar and
6. Manoj Kumar

have categorically identified the applicant to be present at the scene of crime(s) on the date(s) of incident(s). It is nowhere disputed that the applicant is a public figure and the aforesaid public figure and the aforesaid public witnesses are residents of the same locality, so prima facie this Court has to believe that the aforesaid public witnesses knew the applicant very well. I am conscious of the law that at the pre-cognizance/pre-committal stage and that too while deciding the bail application, this Court cannot probe deep into the material collected by the investigating agency because at this stage conducting of mini trial is not warranted.

However, I have taken pains to go through the statement of each witness recorded by the police U/s 161 Cr.P.C to satisfy myself about the sufficiency or otherwise of the material collected during investigation by the police. I do not find any force in the arguments of learned counsel for the applicant that applicant has been falsely implicated in the present matter or that there is no legally sustainable evidence available against him. On the contrary, I find the ocular evidence of independent witnesses aforesaid to be categorical, which gives the clear details qua the active role played by him in the incidents in question.

Most significantly, it is then observed in simple, suave and straight language in para 30 that:
I find substance in the submission of learned Special PP that the applicant claiming parity with the co-accused persons (who have been enlarged on bail in case FIR No. 80/2020) is totally illogical because the role assigned to him in the matters is totally different and distinct from rest of the co-accused persons. It is noteworthy that at the time of eruption of communal riots in the areas(s) of North-East Delhi, the applicant has been in a powerful position (being sitting Councillor of the area from Aam Aadmi Party) and it is prima facie apparent that he used his muscle power and political clout to act as a kingpin in planning, instigating and fanning the flames of communal conflagration.

Therefore, at this stage, I find that there is enough material on record to presume that the applicant was very well present at the spot of crime and was exhorting the rioters of a particular community and as such, he did not use his hands and fists, but rioters as human weapons, who on his instigation could have killed anybody. It is common knowledge that the dreary day of 24.02.2020 saw parts of North-East Delhi gripped by a communal frenzy, reminiscent of carnage during the days of partition. Soon, the riots spread like wildfire across the smoke-grey skyline of Capital, engulfing new areas and snuffing out more and more innocent lives. The Delhi riots 2020 are a gaping wound in the conscience of a nation aspiring to be a major global power.

The allegations against the applicant are extremely grave in nature. Even if there were no direct acts of violence attributable to the applicant, he cannot shy away from his liability under the provisions of the sections invoked against him, particularly on account of the fact that his house/building became the hub/centre point for the rioters and rabble-rousers to unleash the worst communal riots since partition in Delhi.

The spread of riots on such a big scale in such a short time is not possible without a premeditated conspiracy. At this stage, I am reminded of a famous English saying which says that when you choose to play with embers, you cannot blame the wind to have carried the spark a bit too far and spread the fire. So, when the applicant is at the receiving end now, he cannot pass on the buck by simply taking a plea that since he did not participate physically in the riots, so he has no role to play in the riots. It is prima facie apparent that the applicant abused his muscle power and political clout to foment communal violence in the area.

For the sake of clarification, it is then clarified in para 31 that:
For the present, the delay in recording of FIR(s) in the matter(s) have been suitably explained by the prosecution.

Furthermore, it is then clarified and held in para 32 that:
I have also analyzed the judgments relied upon by the learned counsel for the applicant regarding delay in recording the statements of public witnesses U/s 161 Cr.P.C. In my considered opinion, the statements of witnesses can be said to be delayed when the witnesses are known to the police and yet police do not record their statements; whereas, in a case of rioting, police hardly has any idea as to who were the witnesses.

Further, people normally do not come forward and it is admitted position on record that on the date of incident, nearly 10,000 PCR calls were recorded in the area of PS Dayalpur. Thereafter, on the basis of these calls, police reverted back and traced out some of the witnesses. Therefore, at this stage, it cannot be said that there is delay in recording of statements of witnesses by investigating agency.

Be it noted, it is then observed in para 33 that:
Besides the aforesaid three matters, the applicant is also an accused in eight other cases of communal riots in North-East Delhi.

Without mincing any words, it is then made clear in para 34 that:
It is a matter of record that public witnesses in the aforesaid matters are residents of the same locality and if released on bail at this stage, the possibility of applicant threatening or intimidating them cannot be ruled out. Considering the facts and circumstances of the case(s) in totality, I do not find it to be a fit case for grant of bail to the applicant in all the aforesaid three matters. The bail application in all the aforesaid three matters are accordingly dismissed.

What's more, it is then also clarified in para 36 that:
It is hereby clarified that anything stated hereinabove shall not be construed as expressing any opinion on the final merit of the case(s), as the case(s) are at pre-cognizance/pre-committal stage.

Finally, it is then held in the last para 37 that:
A copy of this order be sent to the learned counsel for the applicant through electronic mode.

All said and done, what this latest judgment makes amply clear is that the dubious role played by Tahir Hussain in engineering the riots in Delhi cannot be underplayed! This alone explains as to why he has been denied bail by Additional Sessions Judge – Vinod Yadav of the Karkardooma Court in Delhi which is certainly a big jolt to him! But it is certainly not the end of the road for him! He still has the feasible option to first approach the Delhi High Court and if there also he fails then the Supreme Court! A lot depends now on how his lawyers argue his case in the High Court and if need be then in the Supreme Court! We have to keep our fingers crossed till then instead of second guessing the outcome even while acknowledging that he has got a big jolt from the Karkardooma Court which is an unpalatable truth which of course cannot be denied by anyone!

Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh