Bombay HC’s Order to Grant Bail to Murder Accused Seems Prejudiced

The Court has granted bail to three men accused of killing a Muslim since they were “provoked by religion”.

The Bombay High Court has granted bail to three men accused of killing Shaikh Mosin, three years ago, insinuating that they were “provoked in the name of religion”. (Photo: iStock)

The Bombay High Court has granted bail to three men accused of killing Shaikh Mosin, three years ago, insinuating that they were “provoked in the name of religion”, which the court says forms grounds for leniency towards men charged with committing a hate crime.

The Incident

According to the prosecution, at a meeting of the Hindu Rashtra Sena about the defiling of a statue of King Shivaji in Hardaspur, Pune on 2 June, the accused Dhananjay Desai made ‘instigating speeches’, after which all present at the meeting got onto two-wheelers with hockey sticks and bats and roamed the street.

Three men, Vijay Gambhire, Ranjeet Yadav and Ajay Lage, spotted Mohsin and two other friends and attacked them. One friend escaped, another has recovered from his injuries; Mohsin was declared dead on arrival at the hospital.

[The] deceased was wearing a pastel green colour shirt and sported a beard and therefore, the accused and the co-accused targeted Mohsin and his friend Wasim and started assaulting him with hockey sticks, bats and stones.

Prosecution’s submission in front of Justice Mridula Bhatkar

The men have been charged under sections 302, 307, 143, 147, 148, 149, 120B and 153 A of the Indian Penal Code which include non-bailable offences. A magistrate court in Pune rejected their bail appeal, before the Bombay HC’s Justice Mridula Bhatkar recently overturned the judgement.

(Graphic: The Quint)

The Judgement

The judgement can be categorised into three parts:

1. Accused Placed at Time, Location of Murder

From the record and the statements of the witnesses, it is apparent that the applicants/accused were present at the time of the incident. There are statements of the witnesses and the police officer that the applicants/accused had attended a meeting of Hindu Rashtra Sena on the same day half an hour before the actual incident of the assault. 

Excerpt from the judgement

Earlier in the judgement, it is also noted that the accused claimed they were innocent and “were not present at the time of the murder”, which the judge ascertained as false, based on solid eye-witness testimony.

2. ‘Dhananjay Desai Instigated the Audience’

[...] The co-accused Dhananjay Desai was the one who was the speaker in the meeting and he instigated the audience. It is observed that in the said order of this Court that the transcript of the speech given by Dhananjay Desai was sufficient to show that he had incited the feelings of the religious discrimination.

Excerpt from the judgement

Desai is the founder president of the radical Hindu Rashtra Sena. He is known for his public speeches wherein he appeals to people to ‘protect Hinduism’ and ‘thrash Muslims’. His bail application was rejected by the Bombay HC in 2015.

Considering how his bail application wasn’t up for review at this hearing, putting the blame solely on Desai is shifting the blame off of the three accused by pushing into the limelight only the person who incited the act that led to the murder and not those who committed the act itself.

3. 'The Only Fault of the Deceased Was That He Was Muslim’

The meeting was held half an hour prior to the 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 <b>this factor</b> 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.&nbsp;

Excerpt from the judgement

Perhaps the singular most worrying part of this verdict is when Justice Bhatkar places the blame with the deceased for “belong[ing] to another religion”. Is the Bombay HC saying that a hate crime in which a man is killed simply for being Muslim isn’t severe enough to reject bail? And since when were first time offenders charged with a hate crime, no less, and subsequently released with a slap on the wrist?

By mentioning the proximity of the meeting to the crime, the court seems to be arguing in defence of a crime of passion, on behalf of the accused. A crime of passion is an act done “without premeditation, in a sudden fight, in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner.”

Significantly, this is not the accused’s defence. They claim they weren’t even present at the location.The judge finds this claim to be false, and places on record that the accused did commit the crime, but without well-thought out intention.

Even if this court-imposed defence on behalf of the accused is toyed with, it falls apart on the grounds that the “provoked” men carried hockey sticks and bats with the intention to injure, and didn’t stop beating Mohsin until he no longer showed any signs of movement. And besides, this defence can be used to argue for a reduction of charges from murder; to be “incited by another” is not a ground usually used by High Court as a reason for granting bail.

A Counterview

(Graphic: The Quint)

Legal Pre-Conditions for Bail

A Supreme Court judgement of 2010 reiterated the circumstances under which bail should be given. They are:

1. Reasonable ground to believe that accused had committed offence
2. Nature and gravity of accusation
3. Severity of punishment
4. Danger of accused absconding or fleeing
5. Character, behaviour, means, position and standing of accused
6. Likelihood of offence being repeated
7. Reasonable apprehension of witnesses being influenced
8. Danger of justice being thwarted by grant of bail

More than reasonable ground exists in that the verdict itself ascertains that the accused were at the scene of the crime, were provoked and killed a man. (1) They have been accused of committing a hate crime, the gravity of which is even more significant in today’s increasingly polarised society. (2) The severity of the punishment is death or life imprisonment. (3) The accused’s claim they were innocent and not present at the site despite evidence, points any reasonable man towards malice and fear of persecution on their behalf (4,5).

By saying that a crime was committed after the accused were “provoked on the grounds of religion” and that it is a factor in favour of the perpetrator, the court has set a precedent that may severely impact how communally-charged crimes are tried going forward.

(Graphic: The Quint)