Mubin Shaikh vs The State Of Maharashtra

deceased Shaikh Mohsin was proceeding for

dinner with another friend Riyaz. He was

wearing a pastel green colour shirt and had

a beard. According to the prosecution, the

accused respondents before us, targeted them

because they belonged to a certain community

and started assaulting Shaikh Mohsin with

hockey sticks, bats and stones. This

resulted in his death.

Apparently, the accused were said to have

been highly motivated to do the act because

they had attended a meeting of a body called

Hindu Rashtra Sena about half and hour

before the incident.

3. The accused applied for bail before

the Sessions Court, Pune. The Sessions

Court, Pune rejected the bail applications

of the accused. The Sessions Court observed

that 23 persons in all (including two 3

juveniles in conflict with law) appeared to

have assaulted the deceased and the other

injured person. The deceased was assaulted

because he looked like a Muslim and that the

deceased prima facie had no concerned with

disgracing Shivaji Maharaj. The Sessions

Court found that prima facie, the accused

were said to have been present in the

meeting which was held at about 8.30 p.m. in

which a conspiracy to kill the members of a

certain community was hatched. The Sessions

Court rejected the bail. The respondent

applied for bail before the Bombay High

Court. The Learned Single Judge of the High

Court has, in a cryptic order directed the

release of the accused mainly for the

following reason;

"The meeting was held half an (sic)prior to the incident of assault. The applicants/accused otherwise had no other motive such as any personal enmity against the innocent deceased Mohsin. The fault of the deceased was only 4

that he belonged to another religion. I consider this factor in favour of the applicants/accused. Moreover, the applicants/accused do not have criminal record and it appears that in the name of the religion, they were provoked and have committed the murder."

This observation is made following the

observation that the accused had no personal

animus against the deceased.

4. We have carefully perused the impugned

order(s) granting bail and we find that

there is little reference to/or discussion

on the merits of the bail applications but

we are satisfied that the significant reason

for release is mainly the one stated above.

We find that the aforesaid reason can, on a

fair reading, be understood or misunderstood

almost as a mitigating circumstance or a

kind of a justification for the murder and

it is obvious that the fact that the 5

deceased belonged to a certain community

cannot be a justification for any assault

much less a murder. While it may be possible

to understand a reference to the community

of the parties involved in an assault, it is

difficult to understand why it was said that

"the fault of the deceased was only that he

belonged to another religion" and further "I

consider this factor in favour of the

applicants/accused." We have no doubt that a

Court fully conscious of the plural

composition of the Country while called upon

to deal with rights of various communities,

cannot make such observations which may

appear to be coloured with a bias for or

against a community. It is possible that the

learned Judge wanted to rule out a personal

motive against the victim, but only

emphasize communal hatred. It is also

possible that the learned Single Judge may

not have intended to hurt the feelings of 6

any particular community or support the

feelings of another community but the words

are clearly vulnerable to such criticism.

The direction cannot be sustained.

5. Since, as observed earlier, there is

little discussion on the other relevant

factors relating to granting or withholding

bail in a murder case, we consider it

appropriate to set aside the impugned

order(s).

6. Pursuant to order of this Court, the

accused Ganesh @ Ranjeet Shankar Yadav is in

custody. The respondents/accused Ajay Dilip

Lalge and Vijay Rajendra Gambhire shall be

taken into custody, if they do not surrender

within a period of one week from today. The

bail applications are restored to the file

of the High Court. The High Court shall

hear the matter(s) afresh after giving

liberty to the parties to file additional 7

affidavits.

7. The parties are directed to appear

before the High Court on 16.02.2018.

Having regard to the circumstances of the

case, the bail applications may be decided

at the earliest in any case, not later than

6 weeks from the parties appear before the

High Court.

8. We may note that our observations

shall not be construed as comments on the

merits of the case.

9. The appeals are disposed of with

afore-mentioned observations and directions.

..................J. [ S.A. BOBDE ]

...................J. [ L. NAGESWARA RAO ] NEW DELHI, FEBRUARY 08,2018.