Applying the “Larger Conspiracy” Lens at the Bail Stage: Delay and Parity Not Determinative in Communal-Riot Murder Cases

Case: Mohd Tahir Hussain v. State (NCT of Delhi)

Citation: 2025 DHC 8605

Court: Delhi High Court

Coram: Hon’ble Ms. Justice Neena Bansal Krishna

Date: 25 September 2025

Procedural Provision Invoked: Section 483, Bharatiya Nagarik Suraksha Sanhita, 2023 (successive bail application under the High Court’s special bail jurisdiction)

Introduction

This judgment addresses the fifth bail application filed by Mohd. Tahir Hussain in FIR No. 65/2020 concerning the brutal murder of Ankit Sharma, an Intelligence Bureau official, during the North-East Delhi riots of February 2020. The prosecution alleges that the applicant, a local political figure, played a pivotal role as instigator and conspirator in a larger, premeditated plan to escalate anti-CAA/NRC protests into widespread communal violence, using his house near Chand Bagh pulia as an operational base. The defence emphasized prolonged incarceration (over five years), significant progress in trial (most material witnesses examined), weakening of the prosecution case through hostile witnesses, and parity with co-accused already enlarged on bail.

The High Court rejected bail, setting out and applying a doctrinal framework with three notable features: first, reading the murder as an “off-shoot” of a larger conspiracy to foment communal riots; second, reaffirming the limited scope of evidentiary scrutiny at the bail stage by using the broad-probabilities approach associated with Zahoor Ahmad Shah Watali; and third, clarifying that neither long incarceration/delay nor parity is determinative when the applicant’s alleged role is distinctly graver (instigator/mastermind) and when the trial is at its fag end.

Summary of the Judgment

• The Court framed the offense as part of a larger, premeditated conspiracy to engineer communal riots, with the present murder treated as a foreseeable manifestation of that conspiracy.
• On the evidentiary mosaic available at the bail stage—witness testimonies identifying the applicant as instigating the mob, recoveries from the applicant’s rooftop (stones, petrol bombs, acid containers, catapults), mobile location data, and the timing of release of a licensed pistol and ammunition—the Court found a strong prima facie case of instigation and facilitation.
• Relying on Watali and subsequent Supreme Court reiteration, the Court applied the “broad probabilities/totality” approach at the bail stage and declined to conduct a mini-trial or to discard inculpatory material merely because some witnesses turned hostile.
• Long incarceration and trial delay were held insufficient, by themselves, to warrant bail in a grave communal-riot murder, especially since the trial is at its “fag end” and the Supreme Court has set timelines to expedite completion.
• Parity with co-accused on bail was rejected because parity applies only where roles are comparable; the applicant’s alleged role as the planner-instigator placed him in a distinct category.
• Past conduct suggesting an attempt to influence a witness in a connected riots case was treated as relevant to the apprehension of interference with justice.
• Bail was denied, with observations caveated as being confined to the bail stage, not the ultimate merits.

Detailed Analysis

1) Precedents Cited and Their Influence

• State of U.P. v. Amarmani Tripathi, (2005) 8 SCC 21
  The Court recited the settled bail factors—prima facie case, nature and gravity of accusation, severity of punishment, risk of abscondence, character of the accused, likelihood of repetition, and potential influence on witnesses. This judgment provided the basic analytical grid through which the Court assessed the applicant’s alleged mastermind role, gravity (murder amid communal riots), and risks (witness influence).
• NIA v. Zahoor Ahmad Shah Watali, (2019) 5 SCC 1; GURWINDER SINGH v. STATE OF PUNJAB, (2024) 5 SCC 403
  The Court employed the Watali approach—at bail, evidence is viewed on broad probabilities, and prosecution material is presumed true for that limited purpose. While Watali is often associated with special statutes (e.g., UAPA), the High Court expressly deployed its methodology in a conventional IPC/BNSS bail setting. Gurwinder Singh’s reiteration strengthened this extension. This is significant: the Court used Watali’s limited-scrutiny template to resist a deep dive into testimonial inconsistencies or hostile witnesses at the bail stage.
• Tasleem Ahmed v. State (NCT of Delhi), 2025:DHC:7659-DB
  Cited for the proposition that mere delay cannot be the sole ground for bail where the gravity and role are substantial. It anchors the Court’s refusal to treat long incarceration as determinative in communal-riot prosecutions.
• Gobarbhai Naranbhai Singala v. State of Gujarat, (2008) 3 SCC 775
  Reinforces that long incarceration by itself does not mandate bail. This case supports the rejection of the applicant’s principal ground—over five years in custody—especially when balanced against the nature of the accusation.
• Nazim v. State (NCT of Delhi), SLP (Crl.) No. 12317/2024 (SC orders dated 20.01.2025 and 08.08.2025)
  The Supreme Court directed expeditious completion of the trial in a co-accused’s matter and extended the time frame, signaling that bail should not be granted merely because of delay where the trial is nearing completion. The High Court relied on this trajectory to underscore that the present trial is at its fag end, diminishing the force of delay-based bail pleas.

2) The Court’s Legal Reasoning

1. “Larger Conspiracy” lens: The Court characterized the killing of Ankit Sharma as a direct, foreseeable off-shoot of a premeditated conspiracy to engineer communal riots in North-East Delhi, including during a high-profile state visit. This lens elevated the gravity of the offense and contextualized the applicant’s role beyond a spontaneous riot participant to an alleged planner-instigator. The recoveries (stones, petrol bombs, acid drums, catapults), witness accounts of pelting from the applicant’s rooftop, and movement of family members before the riots supported this reading.
2. Instigation and facilitation: Several witnesses (PW-5 HC Rahul; PW-13 Aakash; PW-14 Bharat; PW-56 Priyanka Gaur) provided direct inculpatory accounts of the applicant’s instigation through communal slogans and gestures, and, per PW-13/PW-14, participation in or facilitation of the assault culminating in the body being thrown into a drain. Mobile location data and the timing of retrieving the licensed pistol and ammunition added circumstantial weight.
3. Limited evidentiary scrutiny at bail: Invoking Watali and Gurwinder Singh, the Court refused to conduct a mini-trial, discount the prosecution case because some witnesses turned hostile, or assay contradictions at depth. It treated prosecution material as presumptively true at this stage and focused on the “totality” and “broad probabilities.”
4. Parity narrowed: The Court emphasized that parity applies only to similarly placed co-accused. It held the applicant’s alleged mastermind role, use of house as a “fort,” and leadership of the mob as distinguishing features that defeated parity with co-accused who might be mere participants or whose roles were narrower.
5. Long incarceration/delay not decisive; trial at fag end: Despite incarceration exceeding five years, the Court held that delay alone cannot ground bail in heinous communal-riot murder cases—especially where the trial is nearly complete, with most material evidence recorded, and the Supreme Court has issued time-bound completion directives.
6. Risk of interference with justice: The Court treated alleged witness-influence in a connected riots FIR—through the applicant’s son and WhatsApp communications—as relevant to apprehensions of interference, bolstering the refusal of bail.
7. Section 149 IPC (unlawful assembly): With Section 149 invoked, the Court noted the applicant’s potential vicarious liability for acts done by the unlawful assembly in prosecution of its common object, further accentuating the gravity dimension.

3) Treatment of Key Defence Contentions

• Hostile witnesses and contradictions: Defence pointed to public witnesses who did not support the prosecution and to alleged contradictions in police testimony. The Court, however, applied Watali’s discipline—eschewing a merits trial at the bail stage—and relied on the presence of multiple inculpatory testimonies and corroborative circumstantial material.
• Triple test (P. Chidambaram v. Directorate of Enforcement, 2019 SCC OnLine SC 1549): While the applicant argued the classic triple test (no flight risk, no tampering, cooperation), the Court implicitly held that in grave offenses engaging organized communal violence and murder, the Amarmani factors, gravity, and the particularized risks (including alleged past witness influence) weigh heavily and can override a formal satisfaction of the triple test.
• Health grounds: The applicant cited cataract surgery and an anterior abdominal wall defect. The Court did not grant bail on medical grounds, implicitly finding that such conditions can be managed in custody and are outweighed by the gravity and risks identified.
• Change in circumstances / successive bail: The applicant alleged material changes post prior rejections (hostile witnesses; progress of trial; bail to co-accused). The Court found no change sufficient to alter the bail calculus, especially given inculpatory evidence, distinct alleged role, and the trial’s advanced stage.
• Parity with co-accused on bail: Rejected for want of comparable roles. The Court emphasized individualized assessment of culpability and responsibility within the riot-conspiracy framework.
• Prior grant of bail in another FIR 114/2020: The Court treated that as non-determinative, given the different factual matrix and the distinct allegations regarding the present FIR (murder as a manifestation of the larger conspiracy).

4) Evidentiary Highlights Considered at the Bail Stage

• Witnesses identifying the applicant as instigating communal slogans and leading the mob: PW-5 (HC Rahul), PW-13 (Aakash), PW-14 (Bharat), PW-56 (Priyanka Gaur). PW-13 and PW-14 spoke to the assault and disposal of the body; others corroborated instigation and leadership.
• Physical recoveries from the rooftop of the applicant’s house: stones, petrol bombs, acid drums, catapults/slingshots; FSL indicating acid/kerosene on seized bottles, consistent with Molotov cocktails.
• Mobile location records placing the applicant at the relevant time and place.
• Timing and quantum discrepancies relating to a licensed pistol and ammunition (retrieved on 22.02.2020) with unaccounted cartridges—treated as circumstantial indicators of preparedness.
• Alleged pre-riot movement of family members from the applicant’s house—treated as indicative of pre-planning.
• Alleged attempt to influence a public witness in a connected FIR via the applicant’s son, with WhatsApp interactions detected (chats deleted)—weighing against bail.

5) The Emerging Principle / Precedent from this Judgment

This decision crystallizes and operationalizes a “larger conspiracy” lens at the bail stage in riot-cum-murder prosecutions, with three doctrinal consequences:

• Contextual elevation of gravity: Where a homicide is a foreseeable emanation of a broader communal-riot conspiracy, courts may evaluate bail by situating the incident within that overarching plan, thereby enhancing the gravity assessment and the applicant’s alleged role.
• Watali’s broad-probabilities standard beyond special statutes: The Court expressly applies the Watali approach—presuming prosecution material as true and avoiding mini-trials—outside special bail regimes, signposting tighter bail scrutiny in grave IPC/BNSS riot cases.
• Delay and parity narrowed: Long incarceration/delay and parity with co-accused are not determinative where the applicant’s alleged role is distinctly more culpable (instigator/mastermind) and the trial is at the “fag end.”

Together, these elements amount to a structured methodology for denying bail in comparable communal-riot murder cases even after protracted custody, provided the trial is advanced and the prosecution’s material—viewed holistically at the bail stage—links the accused to instigation/facilitation within a larger conspiracy.

6) Impact and Implications

• For ongoing North-East Delhi riot cases: The judgment provides a template for opposing bail where the State can demonstrate a conspiracy architecture and the accused’s leadership/instigation role, even when some witnesses turn hostile and the custody period is long.
• On bail jurisprudence under BNSS: By importing Watali’s limited-scrutiny standard into an IPC/BNSS context and emphasizing conspiracy context, the decision tightens the threshold for bail in complex, organized-violence prosecutions. Defence strategies premised chiefly on delay and parity will face higher hurdles.
• On parity doctrine: The Court underlines individualized role assessments. Mere numerical parity (co-accused on bail) will not suffice; defendants must demonstrate comparable culpability and risk profiles.
• On successive bail applications: The judgment implicitly clarifies that claimed “material changes” such as some hostile witnesses or incremental trial progress may be insufficient where inculpatory evidence remains and the trial is nearing completion.
• On public-order and national-security balancing: The Court’s rhetoric—locating the case within threats to “unity, integrity and sovereignty”—foreshadows a public-order weighted balance in future riot-conspiracy bail decisions, akin to the approach seen under special statutes even when only IPC offenses are charged.

Complex Concepts Simplified

• “Larger Conspiracy” lens: A mode of analysis that treats the charged incident (here, a murder) as part of a pre-planned, broader criminal design (communal riots), affecting how gravity and the accused’s role are assessed at bail.
• Parity in bail: The idea that similarly placed co-accused should receive similar bail outcomes. It does not apply where roles, evidence, or risks meaningfully differ (e.g., mastermind vs. foot soldiers).
• Watali standard (broad probabilities): At the bail stage, courts do not conduct a trial-like analysis. They consider the totality of prosecution material, presume its truth for this purpose, and avoid deep dissection of contradictions.
• Amarmani Tripathi factors: Key considerations for bail include prima facie case, gravity, potential sentence, flight risk, character, likelihood of repetition, and risk of influencing witnesses.
• Triple test: A commonly cited test—no flight risk, no evidence tampering, cooperation with investigation. In grave cases, courts also stress gravity, role, and public-order concerns, which can outweigh a formal satisfaction of the triple test.
• Section 149 IPC: Vicarious liability for members of an unlawful assembly for acts done in pursuance of the assembly’s common object. It can widen the net of culpability in riot situations.
• “Fag end” of trial: A stage where most material evidence is recorded, and completion is imminent. Courts often treat this as a reason to resist bail premised primarily on delay.
• Successive bail and “change in circumstances”: After prior rejections, an applicant must demonstrate significant changes (e.g., crucial new exculpatory evidence). Routine trial progress or some hostile witnesses may not suffice if the overall inculpatory edifice stands.

Conclusion

The Delhi High Court’s decision in Mohd Tahir Hussain v. State (NCT of Delhi) operationalizes a structured approach to bail in communal-riot murder cases under the BNSS: (i) adopt a larger-conspiracy lens to appraise gravity and role; (ii) apply Watali’s broad-probabilities standard to avoid evidentiary mini-trials; (iii) narrow the utility of delay and parity where the applicant’s alleged role is distinctly graver and the trial is near completion; and (iv) weigh conduct suggesting risk of interference with justice, even across connected FIRs.

Doctrinally, the ruling signals that in organized-violence prosecutions involving allegations of instigation and facilitation, prolonged incarceration and partial hostility among witnesses will not, without more, tip the balance toward bail—particularly when the prosecution’s narrative coheres around physical recoveries, witness identification, digital location data, and contextual indicators of pre-planning. The judgment thus sets a significant benchmark for future bail adjudication in conspiracy-driven communal-riot cases, reinforcing public-order considerations while preserving the caveat that all observations are confined to the bail stage and do not prejudge guilt.