“Courts cannot make observations with bias for or against a community”, Supreme Court

In an order passed on February 8, the Supreme Court has rebuked a Bombay High Court order by which it had granted bail to three murder accused on the ground that the deceased belonged to another religion and there was no personal enmity against the deceased..A Bench of Justices SA Bobde and L Nageswara Rao set aside the controversial order passed by Justice Mridula Bhatkar of High Court and remanded the matter back to the High Court for deciding the bail applications afresh..Background.On June 2, 2014 at about 9.00 PM, 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 targeted them because they belonged to Muslim 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 an hour before the incident..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 3 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. The Sessions Court, therefore, rejected the bail. The respondent then applied for bail before the Bombay High Court..Bombay High Court order.The High Court, in an order passed on January 12, 2017 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 4 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 led to the appeal in Supreme Court..Supreme Court sets aside Bombay High Court order.Noting that the bail was granted based on the above reason and not on the merits of the bail application, the Supreme Court made it clear that the fact the deceased belonged to another community cannot be a mitigating circumstance and that cannot be a justification for assault or murder. .“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 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.”.The Supreme Court also cautioned that a court conscious of the plural composition of the country cannot make observations with bias for or against any community..“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.”.While observing that the Bombay High Court judge might have wanted to emphasise communal hatred and might not have intended to hurt the feelings of any community, the apex Court, however, stated that words of the High Court were indeed vulnerable to such criticism..The Court, therefore, set aside the impugned order and directed that the bail applications be heard afresh by the High Court..Read the order below.