By Advocate Sanjeev Sirohi, MuslimMirror.com
The family of Mohsin Sheikh, a 28-year-old man in Pune who was murdered in June 2014, allegedly by members of the Hindu Rashtra Sena (HRS), is absolutely gob smacked by the order of the Mumbai High Court which granted bail to three of 21 arrested in the case. In her January 12 order, Justice Mridula Bhatkar of Mumbai High Court observed that, “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 any criminal record and it appears that in the name of the religion, they were provoked and have committed the murder”. This observation has raised many hackles and many eminent legal wizards have questioned it.
While craving for the exclusive indulgence of my esteemed readers, let me inform them that Mohsin’s family are very much heart-broken by the landmark judgment and plans to move the Supreme Court against the grant of bail to the accused – of the 21 accused, 14 have been granted bail so far. The Maharashtra government too may challenge the grant of bail to the three men. An opinion in this regard, sources said, is likely to be sent by the public prosecutor’s office to the state government.
Mohsin, who worked in a Pune firm, was attacked on his way home after offering prayers at a masjid on the night of June 2, 2014. His friend Riyaz Ahmed Mubarak Shendure was with him when they were targeted allegedly by HRS members protesting a Facebook post of some derogatory pictures of Chhatrapati Shivaji and Bal Thackeray. This can be no ground to kill someone.
Later a case of murder was registered at the Hadapsar police station and 21 HRS members, including their leader Dhananjay Jayram Desai alias Bhai, were arrested. Four days ago, Justice Bhatkar, while granting bail to Vijay Rajendra Gambhire, Ganesh alias Ranjeet Shankar Yadav and Ajay Dilip Lalge, noted that the accused had attended a meeting “prior to the incident of assault. The applicants/accused otherwise had no other motive such as any personal enmity against the innocent deceased Mohsin”. Murder of an innocent is murder which can never be condoned.
Be it noted, the January 12 order stated that, “…Dhananjay Desai was the one who was the speaker in the meeting and he instigated the audience…the transcript of the speech given by Dhananjay Desai was sufficient to show that he had incited feelings of religious discrimination. The meet was held…prior to the incident of assault.” Sadiq Shaikh who is the father of Mohsin who was murdered shook his head in disbelief by this observation of the Mumbai High Court. He said that, “We are not convinced by the ground on which the High Court has granted bail to the accused. Is provocative speech permissible for murder of an innocent person from another religion? All three accused were arrested from the murder spot. We have decided to challenge this bail order in Supreme Court.”
As it turned out, in its chargesheet, police said they had two witnesses who had seen and heard the discussion of the alleged HRS activists who had gathered at Gondhale Mala in Hadapsar around 8.30 pm on June 2, 2014. The charge sheet stated that, “The activists were carrying hockey sticks, wooden batons etc. During the meeting, they started discussing that HRS President Dhananjay Bhai has said that Muslims should be thrashed for posting derogatory pictures of Shivaji Maharaj on Facebook. Their vehicles, shops should be damaged. They should not be allowed to do any business in the area. There should be terror of HRS in Hadapsar.” This by itself speaks volumes about the kind of anti-Muslim activity that HRS was engaging its members in. How can they be let off so lightly?
On March 5, 2015, the Mumbai High Court had rejected the bail plea of prime accused Desai. His lawyer Sanjay Punalekar said they had filed a fresh application, seeking bail and also an application for Desai’s discharge in the case. Punalekar said that, “hearing on these applications will take place in the High Court on February 1.”
The Supreme Court had settled way back in 2010 in the landmark case of Prasanta Kumar Sarkar v Ashis Chatterjee what all factors have to be taken into account while granting bail. All courts must always take these factors into account while granting bail. These include: –
- Whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;
- Nature and gravity of the accusation;
- Severity of the punishment in the event of conviction;
- Danger of the accused absconding or fleeing, if released on bail;
- Character, behavior, means, position and standing of the accused;
- Likelihood of the offence being repeated;
- Reasonable apprehension of the witnesses being influenced; and
- Danger of justice being thwarted by grant of bail.
What I find most perplexing in this latest Mumbai High Court judgment is that the court seems to suggest by its observation that there is nothing much heinous about a hate crime like this and the accused were provoked as the deceased belonged to another religion. How can a crime be justified by terming it as “The fault of the deceased was only that he belonged to another religion”? How can this factor be considered in favour of the applicants/accused? How can this be considered as provoking and enough to commit a murder of person just because he belonged to another religion?
Faizan Mustafa who is Vice Chancellor NALSAR University of Law, Hyderabad very rightly points out in his enlightening editorial titled “Not justice” in The Indian Express dated January 20, 2017 that, “With this order, India cannot anymore complain against the hate crimes committed against Indians in Australia and America. Provocation must be given by the deceased and he must have said or done something which would have provoked a “reasonable man”. Provocation cannot be claimed against anything which is lawful – to be Muslim, to wear a green shirt or sport a beard has not yet been made unlawful in India. Moreover, provocation cannot be voluntarily sought. Here, the accused, out of their own free will, went to listen to hate speeches at the Hindu Rashtriya Sena event. The order is shocking and dangerous as it rewrites the jurisprudence of provocation.”
I am quite certain that this order of Mumbai High Court will be reviewed by the Supreme Court and set aside. Religion can be no provocation for murdering any person. Just having no past criminal record does not mean that the accused can murder someone arbitrarily just because he/she belongs to different religion or holds different views on certain matters.
Finally, on a concluding note let me say that a murder is a murder and has to be treated like a murder. There can be no justification for murdering someone other than those spelt out in Exceptions of Section 300 of IPC. Bail should not be given for heinous offences like murder, rape etc. They have to be treated most seriously and accused should not be let off lightly by forwarding any mitigating circumstance. It is high time and bail laws must be reviewed so that it is not at the discretion of any Judge to grant bail to any criminal who is accused of murdering or raping any one or committing any other heinous crime!
Patriotism is an inner heart feelings that can not be imposed upon, but can be motivated and illustrated with practicing example.