With All Due Respect

The Delhi High Court’s order granting bail to erstwhile student leader from Jawaharlal National University, Kanhaiya Kumar had very strange observations in it. I had an occasion to criticize it here. In another such judgment, this time the Bombay High Court in a much criticized judgment recently granted bail to 3 accused persons alleged to have committed crimes under Section 302, 307, 143, 147, 148, 149, 120B and 153A of the Indian Penal Code, 1860. Pertinently the maximum punishment under these offences is the sentence of death. What concerns me here and what is thought provoking is the ratio behind granting the bail, the ‘fault of the deceased theory’ and an observation directly on the merits of the case finding the accused guilty of murder. The operative portion of the judgment deserves to be quoted –

“…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 factual background of the instant case is that on 02.06.2014 a meeting of an outfit known as ‘Hindu Rashtra Sena’ was conducted and instigating speeches were made. Half an hour later, while roaming on motorbikes with weapons, the accused found the deceased Mohsin and his friend. Only because the innocent deceased sported a beard and wore a pastel green color shirt, he was attacked brutally by the accused and by the time he reached the hospital for medical attention, he succumbed to the injuries. With deepest anguish and prayers for the departed soul, I must call this no less than a cold blooded murder. An innocent man was brutally murdered by members of a so called religious outfit. He was murdered only because his appearance indicated that he belonged to a particular religion. We live in a surcharged atmosphere where even a whisper can lead to riots and mass murders. There have been instances in the past where in religious rage, innocent men were brutally murdered and innocent women were sexually assaulted and raped. Let us check whether the rationale behind granting bail to such religiously incited menin this case is justified.

I do not doubt that the accused may have been driven by passion. They must have become part of audience of an outfit like Hindu Rashtra Sena only when they had inclinations towards extremism and fanaticism. Let me not dwell into the areas where passionate men can ride in. But I must go to the reasoning behind grant of bail to such passionate men and then leave it to the reader’s wisdom as to correctness of it. Justice Mridula Bhatkar found that that other than incitement of feelings of religious discrimination, the accused had no other motive to murder the deceased. A necessary corollary here is that Justice Bhatkar had evaluated that there was a motive which was religious incitement. My first attack on the grant of bail is that there is no requirement of having more than one motive to deny grant of bail, especially when the charge is that of murder. Religious incitement is in fact a very strong motive sufficient singularly for conviction, leave apart declining bail. Justice Bhatkar also wrote that the accused had no personal enmity against the deceased. It is trite law that personal enmity between a set of persons charged under Section 147-149 with the deceased is not an essential ingredient to construct the offence. An unlawful assembly may not have any personal enmity with the deceased and in fact may not have even known the attacked individual personally, they are still guilty. Thirdly, like the Delhi High Court in the Kanhaiya Kumar’s bail matter devised the theories of ‘anti national attitude’, ‘right path’ and the ‘infection’, the Bombay High Court in the instant matter designed a ‘fault of the deceased theory’. In this case, the Bombay High Court penned that it was the fault of the deceased that he was not a Hindu and belonged to another religion (namely Islam). A necessary concomitant of this theory is that if a gang of passionately driven people in their desire to satisfy their religious rage, murder an innocent man of another religion, it is the fault of the dead man that he belonged to a different religion. I ask myself, and I ask myself again, can it ever be a fault of an innocent dead man to be murdered because of appearance of his religious identity or to have taken birth in a family practicing that religion. It does not end here and Justice Bhatkar considered this factor in ‘favour of the applicants/accused’. Further, the Court recorded that it appeared to it that the accused were provoked in the name of religion and ‘have committed the murder’. Interestingly, Justice Bhatkar observes here that the accused had been provoked and that they committed the murder. It goes above my head as to how even while successfully evaluating that the accused men were provoked and in their religious incitement they committed the murder, they could be granted bail!

With all due respect, this order granting bail is perverse and irrational in nature. It not only tends to open a pandora’s box for offenders claiming bail in cases of religiously incited crimes but is a bad precedent as the High Courts are courts of record, of course, with all due respect. Not only the developing trend of such religious outfits should be discouraged and strict instructions should be issued to the courts regarding grant of bail to such accused. Finally for the love of law, this judgment deserves to be appealed immediately and its operation must be stayed. Again, with all due respect.

Namit Saxena is a Lawyer practicing in the Supreme Court of India.

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