Pune Muslim youth murder: Is the Bombay HC bail to accused a licence to..............

Pune Muslim youth murder: Is the Bombay HC bail to accused a licence to kill for sake of religion?

 Jan, 17 2017 

 The Bombay High Court on 12 January granted bail to three men accused of murdering a Muslim man in Hadapsar, Pune, in 2014 sighting an absence of "personal animosity" against the victim. The bail was granted even though the accused are alleged to have bludgeoned the victim to death with hockey sticks, bats and stones, for simply being a Muslim on 2 June 2014.

The prosecution's case was that the accused had just attended a rally where a person called Dhananjay Desai of the Hindu Rashtra Sena had made an inflammatory speech where he had incited the passions of these accused . So, when the accused saw the victim, on his way to dinner on a motorcycle, wearing a pastel green shirt and was sporting a beard, they started assaulting him with hockey sticks, bats and stones.

To understand why the speech plays such important role, one needs to look at Desai's bail order where the court has gone into some detail about the speech .
From the order and the statement of the witnesses, the allegation appears to be that Desai, who was the president of the Hindu Rasthra Sena, directed his followers to assault Muslims so that they can create terror in Hardaspur. They attacked this man, whose name is Mohsin Shaikh, because he was wearing a Pathani dress and therefore he was visibly a Muslim. It's also very clear from the order denying bail to Desai that there was no permission to hold such a meeting. To quote the high court, "The language was not only ferocious but the applicant had made an unconstitutional speech. The transcript of the said speech is part of the compilation of the charge-sheet. The people were urged to wage a war against Muslims on religious grounds. An attempt was being made to create an imbalance in the social harmony of the society (sic)."
The high court further goes on to record on Paragraph 14:
"One of the witness has categorically stated that he belongs to Muslim community, but when he was apprehended, he had to disclose that he is a Hindu and only then he could save his life. This statement is more than sufficient to hold that the entire incident had occurred due to the unconstitutional speech delivered by the present applicant. In the abovementioned facts and circumstances, people like the applicant, who claim to lead a particular religious group, only to overawe the other religious community and create disharmony in the society, create law and order situation by taking undue advantage of the religious feelings and implementing their plan into action by a young group is more than sufficient to deny bail (sic)."
It may be noted, that this author has previously, come out in favour of absolute freedom of speech without any consequence, therefore, he will not comment on the present charges against Desai, but will limit himself to the order of 12 January 2017.
In the order of 12 January 2017, three alleged participants in the mob that killed Shaikh had applied for bail before the high court. They were granted bail and the reasons were recorded in Paragraph 4 they are reproduced verbatim:
"Perused the FIR, the statements of the witnesses, the injury certificates and the postmortem reports. 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. I have perused the order passed by this Court on 5 March 2015 while rejecting the bail application of one Dhananjay Desai, the co-accused in Criminal Bail Application No 2337 of 2014. It shows that 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 Dhanjay Desai was sufficient to show that he incited the feeling of the religious discrimination. The meeting was held half an hour prior 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 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."
Based on the above reasons, the high court granted the three men bail. The only fault of the murder victim was that he was Muslim as per the order of the high court. Bail is the right of every accused, this is the jurisprudence of every civilised republic. However, bail can be denied when there is a chance of the accused scuttling the investigation or being a threat to the public at large.
Not having a personal motive against the accused but being a part of an organisation that makes speeches that incite violence against members of another community and then acting on that violence may make these people a threat to the general public at large. Respectfully, the high court doesn't seem to have taken that into account while passing the order. Further, the wording of the order makes it seem as if it was the victim's fault that he was murdered.
When we contrast the two orders we can see how India may have slightly changed from March 2015 to January 2017 where on the one hand a man making a hate speech is denied bail because he may be a danger to the public at large, on the other hand, three men who get incited by speeches and go around allegedly killing people by beating them with hockey sticks and stones may be excused of their behaviour because they did it because of "religion" and no out of personal enmity. The order of 12 January 2017 must give us all a reason to pause.