MUBIN SHAIKHversusTHE STATE OF MAHARASHTRA & ANR.

                          [2018] 1 S.C.R. 653                           653


                          MUBIN SHAIKH                                  A
                                  v.
           THE STATE OF MAHARASHTRA & ANR.
                 (Criminal Appeal No. 245 of 2018)
                       FEBRUARY 08, 2018                                B
       [S. A. BOBDE AND L. NAGESWARA RAO, JJ.]
       Bail – Prosecution case was that the accused-appellants
tarageted the victim-deceased because he belonged to a certain
community and assaulted him with bats and sticks which resulted in
                                                                        C
his death – Trial court rejected their bail applications – High Court
directed release of accused on the ground that accused had no
personal animus against the deceased and seemed to be provoked
in the name of religion – High Court in impugned judgment noted
that the fault of the deceased was only that he belonged to another
religion and this factor was considered in favour of the accused –      D
Held: Such an observations appeared to be coloured with a bias
for or against the community – The directions contained in the
impugned order cannot be sustained – Impugned order is set
aside – Bail applications are restored to the file of High Court –
High Court to hear the matters afresh.
                                                                        E
      CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
245 of 2018.
      From the Judgment and Order dated 12.01.2017 of the High Court
of High Court of Judicature at Bombay in Bail Application No. 2160 of
2016.
                                                                        F
                                 WITH
      Crl. A. Nos. 246, 247, 248, 249 and 250 of 2018.
      Huzefa Ahmadi, Sr. Adv., Farrukh Rasheed, Zahid Hussain, Ankit
Pandey, Shah Rukh Alam, Siddhartha Dave, Abu Bakr Sabbaq, Nishant
Ramakantrao Katneshwarkar, Hari Shankar Jain, Vishnu Shankar Jain,      G
Vinay Rajput, Vidit Monga, Advs. for the appearing parties.
      The following Order of the Court was delivered:
                          ORDER
      1. Leave granted.
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                                  653
654             SUPREME COURT REPORTS                           [2018] 1 S.C.R.


A            2. On 02.06.2014 at about 9.00 P.M., the 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.
B
            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.
C     The Sessions Court, Pune rejected the bail applications of the accused.
      The Sessions Court observed that 23 persons in all (including two 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,
D     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
E     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 that he belonged to another religion.
F           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
G     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
H
 MUBIN SHAIKH v. THE STATE OF MAHARASHTRA & ANR.                                  655


mitigating circumstance or a kind of a justification for the murder and it        A
is obvious that the fact that the 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
                                                                                  B
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,            C
but only emphasize communal hatred. It is also possible that the learned
Single Judge may not have intended to hurt the feelings of 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      D
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           E
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
affidavits.
      7. The parties are directed to appear before the High Court on              F
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.                                               G
      9. The appeals are disposed of with afore-mentioned observations
and directions.


Devika Gujral                                              Appeals disposed of.
                                                                                  H