MUBIN SHAIKH versus THE STATE OF MAHARASHTRA & ANR.

Citation: [2018] 1 S.C.R. 653 · Decided: 08-02-2018 · Supreme Court of India · Bench: S.A. BOBDE, L. NAGESWARA RAO · Disposal: Disposed off

Judgment (excerpt)

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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-appellants
tarageted the victim-deceased because he belonged to a certain
community and assaulted him with bats and sticks which resulted in
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 –
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.
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.
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,
Vinay Rajput, Vidit Monga, Advs. for the appearing parties.
The following Order of the Court was delivered:
O R D E R
1. Leave granted.
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[2018] 1 S.C.R. 653
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SUPREME COURT REPORTS
[2018] 1 S.C.R.
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.
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 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 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
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mitigating circumstance or a kind of a justification for the murder and it
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

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