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                                 REPORTABLE

         IN THE  SUPREME COURT OF INDIA   CRIMINAL  APPELLATE JURISDICTION

     CRIMINAL APPEAL NO. 245   OF 2018      (Arising out of SLP(Crl.) No. 1498/2017)  

MUBIN SHAIKH                    APPELLANT(S)                      VERSUS THE STATE OF MAHARASHTRA & ANR.RESPONDENT(S)

WITH        CRIMINAL APPEAL NO. 246    OF 2018   (Arising out of SLP(Crl.) No. 1499/2017)  

     CRIMINAL APPEAL NO.  247   OF 2018      (Arising out of SLP(Crl.) No. 2058/2017)  

     CRIMINAL APPEAL NO.  248    OF 2018 (Arising out of SLP(Crl.) No. 5834/2017)  

     CRIMINAL APPEAL NO. 249   OF 2018      (Arising out of SLP(Crl.) No. 5835/2017)  

     CRIMINAL APPEAL NO. 250 OF 2018      (Arising out of SLP(Crl.) No. 5836/2017)  

O R D E R

1. Leave granted.

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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

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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

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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  mitigating  circumstance  or  a kind of a justification for the murder and it  is  obvious  that  the  fact  that  the

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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 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,  but  only emphasize  communal  hatred.   It  is  also possible that the learned Single Judge may not have intended to hurt the feelings of

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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  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 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

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affidavits.   

7. The  parties  are  directed  to  appear before  the  High  Court  on  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.

9. The  appeals  are  disposed  of  with afore-mentioned observations and directions.

                         ..................J.                     [ S.A. BOBDE ]                                                    ...................J.                        [ L. NAGESWARA RAO ]   NEW DELHI, FEBRUARY 08,2018.