Reasoning Behind Bombay HC Order is ‘Atrocious’: Justice PB Sawant

Bombay HC granted bail to three men accused of murder, stating the accused were provoked in the name of religion.

(Photo: Rhythum Seth/ The Quint)

Activists who deluged the streets of Pune in June 2014 after Mohsin Sheikh was killed are most disturbed with the Bombay High Court for granting bail to the three men accused of murdering him, stating the accused were provoked in the name of religion, and they had no personal motive to kill Mohsin. The court considered this to be ground enough to give them the benefit of doubt.

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

‘Provoked in the Name of Religion’

Dhananjay Desai, founder of the Hindu Rashtra Sena, a radical right wing group, had made a vitriolic speech after someone vandalised the bust of Shivaji Maharaj. Half an hour after the meeting where Desai instigated the ones present, three of them noticed Mohsin on his bike with his friends, and assaulted them. One escaped, the other recovered but Mohsin succumbed to the injuries. The mob that night had run amok attacking public property in Pune, “expressing their anger”.

Renowned judge Mridula Bhatkar, while hearing the bail application of the three men – Vijay Gambhire, Ranjeet Yadav and Ajay Lage – who are charged with non-bailable offenses, noted, “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 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.”

The judge further noted Mohsin was wearing a “green shirt and sported a beard”, which has drawn more flak.

Also Read: Bombay HC Acquits 3 Murder Accused Over “Religious Provocation”

Does the Order Dilute the Gravity of Crime?

Activists are furious with this paragraph and say the judgement dilutes the gravity of the crime. “It is disturbing and sets a dangerous precedent,” said activist Subhash Ware, who issued a condemning press note, along with a respected senior activist Baba Adhav and sent it to the media on Monday. “With due respect to the High Court, it goes against the constitutional values, equality and secularism.”

Following the bail of the three men, parents of Mohsin have written to the chief minister asking for Ujjwal Nikam's appointment as the public prosecutor, for the bail application of Dhananjay Desai is up for hearing on 1 February. They do not want Dhananjay to be given the benefit of doubt, like the three men concerned did.

The family also plans to move Supreme Court against the bail – so far 14 of the 21 who formed the mob are out.

Commentators believe the murder of Mohsin, an innocent techie who was on his way home, carries more significance because it was the first such incidence after Narendra Modi came to power. It was one of the earliest signs of the growing majoritarianism in India. After the murder, activists had thronged the streets of Pune. While Ware was one of those at the front, members of the Andhashraddha Nirmulan Samiti – founded by slain activist Narendra Dabholkar – and the Muslim Satyashodhak Mandal had also joined in.

Order Based on Religious Identity

Shamsuddin Tamboli, president of the Muslim Satyashodhak Mandal, said the judgement is particularly demoralising for the ones who fiercely protested the deplorable murder. “A judgement like this creates a window to cast aspersions on the law which is expected to be secular and impartial,” he said. “The statement about religion is particularly hurtful.”

Ware said the reason, which the High Court found in favour of the accused, actually makes the crime worse. “The judge said the accused had no personal motive, enmity to kill him,” he said. “On the contrary, I think it makes it even worse, that the man was killed just because of his Muslim identity.”

Provocative Speech Incited the Accused

The reasoning behind the bail order has raised eyebrows, also because Mridula Bhatkar is a respected judge, well-known for her secular and liberal views. In fact, she is the one who granted bail to Teesta Setalvad.

Supreme Court advocate Sanjay Hegde endorsed it while ruling out the communal angle. “She sets out the fact that there was a provocative speech by Dhananjay,” he said. “She sympathises with the deceased who got killed for no fault of his and only because he was a Muslim. ‘I consider this factor in favour of the accused,’ she says. ‘This factor’ is not Mohsin. The incitement she is speaking of refers to Dhananjay and not Mohsin’s religion.”

Semantic Error

Hegde further elaborated that the criticism on social media is because of “what somebody called correctly the tyranny of Twitter”. “If you read it in plain English, it looks atrocious,” he said. “But this often happens, in my experience, when people think in the vernacular and express themselves in English.”

Activist and lawyer Asim Sarode said the judge should have been more careful while drafting the order. “It is a misjoinder of statements,” he said. “It leaves scope for dangerous interpretations.”

Ware and Adhav hoped the state would challenge the bail order in the Supreme Court. “Else the Supreme Court should take a suo motu action and cancel the bail,” the note reads.

‘Reasoning is Atrocious, Dangerous and Unconstitutional’

Lawyer of the three accused, Navin Chomal, said the High Court is not bound to give detailed reasoning for its order. “The interpretations of the order are not the reasons behind her decision,” he said. “Whenever High Court or Supreme Court gives an order, it is with discretion. It is okay to criticise but the ones who understand the law should do it.”

However, arguably the most lethal form of criticism came from the man who has been a former Supreme Court Justice. PB Sawant called the reasoning behind the judgement “atrocious”, “dangerous” and “unconstitutional”, for it goes “against secularism”. “Bail is a rule but not in serious cases like murder,” he said.

The learned judge has relied upon the fact that the accused has come from the public meeting where they were exhorted in the name of Hindu religion. And when they saw a first Muslim, they committed his murder. The reasons given are perverse. Then you cannot keep in custody the jihadis who are murdering people on the ground of religion.

Justice (retd) PB Sawant

(The writer is special correspondent with LA Times. He can be reached @parthpunter. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same. )

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