New Delhi, Jan 22 (PTI) Former councillor and February 2020 riots accused Tahir Hussain on Wednesday failed to secure an interim bail to campaign for Delhi assembly polls after a Supreme Court bench gave a split verdict.

While Justice Pankaj Mithal dismissed Hussain's plea saying no case was made out, Justice Ahsanuddin Amanullah opined he could be released on interim bail.

The matter would be placed before Chief Justice Sanjiv Khanna for the constitution of a new bench to decide the issue.

Observing the right to contest elections was not a fundamental right, Justice Mithal said allowing interim bail could open a Pandora's box as every undertrial would invoke the same ground.

"In the event interim bails are to be allowed for purposes of contesting elections, it will open a Pandora's box. Since elections are all year round, every undertrial would come with the plea that he wants to participate in elections and therefore be granted interim bail. This would open floodgates, which in our opinion can't be permitted," he said.

The judge added, "Once such right is recognised, as a sequel, the petitioner would ask for right to vote, which is circumscribed by Section 62 of the Representation of Peoples Act." Releasing such a person on interim bail would amount to permitting the accused to go for door-to-door canvassing and hold meetings in the locality where the crime took place and witnesses reside, he said.

"Hence, there is a high possibility of the accused meeting the witnesses. The chargesheet reveals serious allegations against the accused and that the rooftop of his house/office was used as the "epicentre" for the offences," said Justice Mithal.

He said it was worth mentioning 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 petitioner had not nurtured it for the past few years sitting in jail, there is no reason why he should be released," he said.

While acknowledging the allegations against Hussain were grave and serious, Justice Amanullah said they were only allegations at the present moment.

He said the petitioner was in custody since March, 2020, and had secured bail in most cases and the Delhi High Court allowed him to file nomination.

"Subject to apt conditions, the petitioner can be granted interim bail for limited period. Ordered accordingly. Petitioner is enlarged on interim bail however till February 4 noon," he said.

The Delhi High Court on January 14 granted custody parole to Hussain to file nomination papers from the Mustafabad constituency on an AIMIM ticket.

It, however, refused his plea for interim bail from January 14 to February 9 to fight polls, saying the gravity of allegations against Hussain, being the main perpetrator in the violence, which resulted in the death of several persons, could not be overlooked.

The high court said about 11 FIRs were registered against him in connection with the riots and he was admittedly in custody in a related money laundering case and UAPA case.

Violence broke out in northeast Delhi on February 24, 2020, leaving 53 dead and several injured.

Hussain is accused in a case of February 2020 riots connected to the death of Intelligence Bureau staffer Ankit Sharma.

According to the prosecution, on February 26, 2020, complainant Ravinder Kumar informed the Dayalpur Police Station that his son Sharma was missing since February 25, 2020.

His mortal remains were reportedly recovered from Khajuri Khas nullah in the riot-affected area and his body bore 51 injuries. PTI PKS AMK