Supreme Court of India
MUBIN SHAIKH versus THE STATE OF MAHARASHTRA & ANR. on 8 February 2018
[2018] 1 S.C.R. 653
MUBIN SHAIKH
v.
THE STATE OF MAHARASHTRA & ANR.
(Criminal Appeal No. 245 of 2018)
FEBRUARY 08, 2018
[S. A. BOBDE AND L. NAGESWARA RAO, JJ.]
Bail – Prosecution case was that the accused-appellantstarageted the victim-deceased because he belonged to a certaincommunity and assaulted him with bats and sticks which resulted inhis death – Trial court rejected their bail applications – High Courtdirected release of accused on the ground that accused had nopersonal animus against the deceased and seemed to be provokedin the name of religion – High Court in impugned judgment notedthat the fault of the deceased was only that he belonged to anotherreligion and this factor was considered in favour of the accused –Held: Such an observations appeared to be coloured with a biasfor or against the community – The directions contained in theimpugned order cannot be sustained – Impugned order is setaside – Bail applications are restored to the file of High Court –High Court to hear the matters afresh.
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.245 of 2018.
From the Judgment and Order dated 12.01.2017 of the High Courtof High Court of Judicature at Bombay in Bail Application No. 2160 of2016.
WITH
Crl. A. Nos. 246, 247, 248, 249 and 250 of 2018.
Huzefa Ahmadi, Sr. Adv., Farrukh Rasheed, Zahid Hussain, AnkitPandey, Shah Rukh Alam, Siddhartha Dave, Abu Bakr Sabbaq, NishantRamakantrao Katneshwarkar, Hari Shankar Jain, Vishnu Shankar Jain,Vinay Rajput, Vidit Monga, Advs. for the appearing parties.
The following Order of the Court was delivered:
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O R D E R
1. Leave granted.
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A2. On 02.06.2014 at about 9.00 P.M., the deceased Shaikh Mohsinwas proceeding for dinner with another friend Riyaz. He was wearinga pastel green colour shirt and had a beard. According to the prosecution,the accused respondents before us, targeted them because they belongedto a certain community and started assaulting Shaikh Mohsin with hockeysticks, bats and stones. This resulted in his death.B
Apparently, the accused were said to have been highly motivatedto do the act because they had attended a meeting of a body calledHindu Rashtra Sena about half and hour before the incident.
3. The accused applied for bail before the Sessions Court, Pune.CThe Sessions Court, Pune rejected the bail applications of the accused.The Sessions Court observed that 23 persons in all (including two juvenilesin conflict with law) appeared to have assaulted the deceased and theother injured person. The deceased was assaulted because he lookedlike a Muslim and that the deceased prima facie had no concerned withdisgracing Shivaji Maharaj. The Sessions Court found that prima facie,Dthe accused were said to have been present in the meeting which washeld at about 8.30 p.m. in which a conspiracy to kill the members of acertain community was hatched. The Sessions Court rejected the bail.The respondent applied for bail before the Bombay High Court. TheLearned Single Judge of the High Court has, in a cryptic order directedEthe 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 asany personal enmity against the innocent deceased Mohsin. Thefault of the deceased was only that he belonged to another religion.FI consider this factor in favour of the applicants/accused.Moreover, the applicants/accused do not have criminal record andit appears that in the name of the religion, they were provokedand have committed the murder.”
This observation is made following the observation that the accusedGhad no personal animus against the deceased.
4. We have carefully perused the impugned order(s) granting bailand we find that there is little reference to/or discussion on the merits ofthe bail applications but we are satisfied that the significant reason forrelease is mainly the one stated above. We find that the aforesaid reasoncan, on a fair reading, be understood or misunderstood almost as aH
mitigating circumstance or a kind of a justification for the murder and itis obvious that the fact that the deceased belonged to a certain communitycannot be a justification for any assault much less a murder. While itmay be possible to understand a reference to the community of theparties involved in an assault, it is difficult to understand why it was saidthat “the fault of the deceased was only that he belonged to anotherreligion” and further “I consider this factor in favour of the applicants/accused.” We have no doubt that a Court fully conscious of the pluralcomposition of the Country while called upon to deal with rights of variouscommunities, cannot make such observations which may appear to becoloured with a bias for or against a community. It is possible that thelearned Judge wanted to rule out a personal motive against the victim,but only emphasize communal hatred. It is also possible that the learnedSingle Judge may not have intended to hurt the feelings of any particularcommunity or support the feelings of another community but the wordsare clearly vulnerable to such criticism. The direction cannot be sustained.
5. Since, as observed earlier, there is little discussion on the otherrelevant 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 @ RanjeetShankar Yadav is in custody. The respondents/accused Ajay Dilip Lalgeand Vijay Rajendra Gambhire shall be taken into custody, if they do notsurrender within a period of one week from today. The bail applicationsare restored to the file of the High Court. The High Court shall hear thematter(s) afresh after giving liberty to the parties to file additionalaffidavits.
7. The parties are directed to appear before the High Court on16.02.2018. Having regard to the circumstances of the case, the bailapplications may be decided at the earliest in any case, not later than 6weeks from the parties appear before the High Court.
8. We may note that our observations shall not be construed ascomments on the merits of the case.
9. The appeals are disposed of with afore-mentioned observationsand directions.
Devika Gujral
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