Religion of Victim: Is it Legitimate Provocation?

Faizan Mustafa,

 “The fault of the deceased was only that he belonged to another religion.I consider this factor in favour of the applicant/accused.Moreover,the applicants/accused do not have criminal record and it appears in the name of religion, they were provoked and have committed murder,” observed Justice Mridula Bhatkar  in her six page order while granting bail to three main accused in the killing of innocent  Mohsin Sheikh, young techie of Pune who was returning after dinner on June2,2014 and was wearing what the judge has recorded as “pastel green colour shirt and had sported a beard. With this order India cannot anymore complain against the hate crimes committed against Indians in Australia and America as dress and appearance are now legitimate grounds of provocation for killing innocent people.  The judge yesterday corrected her controversial order whereby religion of victim is now just one of ground of provocation. But she did not withdraw the statement quoted above.

Provocation must be given by the deceased and he must have said or done something which would have provoked a ‘reasonable man’. Provocation cannot be claimed against anything which is lawful-to be Muslim, to wear green shirt or sport a beard has not yet been made unlawful in India. Moreover provocation cannot be voluntarily sought. Here accused out of their own free will went to listen speeches at Hindu Rashtriya Sena event.The order is shocking and dangerous as it rewrites the whole jurisprudence of provocation.It cannot be said as a mitigating circumstance in the favour of the accused that they got provoked by the speeches at the Hindu Rashtriya Manch because they themselves went there out of their free will and knowing fully well that such kind of speeches are made in such meetings. The law is provocation should come to accused, he should not go to provocation.

ArchaicIndian law on bail due to the concept of pecuniary ‘surety’ already had a class character wherein for rich bail is the rule and for poor it is invariablythe jail. Justice Krishna Iyer in Moti Ram case where a poor labourer was asked a surety of Rs 10,000 in 1978 was pained to observe “the poor are priced out of their liberty in the justice market.”From class we may be now moving towards religion or may be  religion is  the new class.

The law of bail is an old one. It seems Plato in 399BC sought Socrates’ release on bond. Law of bail is big ‘cobweb’-It is a web encompassing the issues of personal liberty,public concern and interests of justice.Term ‘bail’ has not been defined under our laws.The law merely makes a distinction between ‘bailable offences’ and ‘non-bailable offences’ with ‘bail’ as right in the former and  discretion of the judge in the later. The classification is not based on any definite test or criterion. But generally offences which are punishable with three years or less imprisonment are considered bailable and others as non-bailable. Bail is to be given if investigations are not completed within 60 days in ordinary crimes and 90 days in serious offences.

The judicial discretion in granting bail is not too wide and cannot be used in an arbitrary manner- sound discretion is guided by law;governed by rule not by humour and cannot be arbitrary,vague and fanciful. The judge must keep in mind enormity of the charge, severity of punishment, nature of evidence in support of accusation, length, age, sex of the accused, position and status of the accused with reference to the victim and witnesses and probability of accused committing more offences on bail.

The bail cannot be granted “on parity” ie simply because co-accused were granted bail does not entitle accused to get bail.This author is for the grant of bail in most cases as denial of bail impinges on the ‘presumption of innocence’ of the accused and makes innocent family members of the accused suffer.Moreover accused denied of bail cannot prepare for his defence at trial.Bail is basically security for the appearance of the accused pending trial or investigation. Thus while I have no objection to the grant of bail to three accused in the Mohsin murder case, we must recall how bail was denied in several more genuine cases.

Dr Binayak Sen was denied bail for years though he had not killed anyone. The charge against him was that he was allegedly courier between jailed naxal leader Naryan Sanyal and businessman Piyush Sinha because he met Sanyal 33 times, of course each time with the due permission by the jail authorities. The evidence against him was a postcard written by Sanyal about his health and legal case duly signed by the jail authorities; a book on unity between CPI and Maoist Communist Centre and a letter by Madanlal Banerjee to him. Even an appeal for the release of Sen by Noam Chmsky and 22 Nobel Laureates did not move the UPA Government which sided with the BJP government of Chattisgarh.Finally Supreme Court granted him bail.

Bombay High Court itself had denied bail to Delhi University Professor GN Saibaba who has 90 per cent disability and moves in wheel chair. Even his temporary bail was withdrawn. All co- accused of Saibaba too were granted bail but principle of parity was not accepted his case. Similarly members of Kabir Kala Manch(KKM), a cultural organization founded in Pune itself which fights against inequalities in the society  and for the promotion of democracy and had not committed any violent crime were denied bail on charges of their support to naxals through their songs and plays. In spite of pregnancy, Sheetal Sathe of KKM was denied bail twice by the Sessions court. Finally High Court granted her bail. Her husband recently got bail with much difficulty.

Bail was similarly not  given to Amir who was accused of 19 terror charges. He had to spend 12 years in Delhi jail. When his father died and mother suffered paralytic stroke, he moved several bail applications with medical record of mother and acquittal order of other cases yet judge refused to grant bail as it was ‘too sensitive’ a case.Eventually he was acquitted in all the 19 cases. Sanjay Dutt on the other hand got hundreds of days parole even after conviction even to attend the nose surgery of his daughter or to be with his ailing wife.

Madras High Court last year had given bail to a rape accused so that he can mediate with the victim. Patna High Court did give bail to notorious criminals like Shabuddin, Pappu Yadav and Rocky Yadav. Supreme Court had to intervene to get these bails cancelled. Maya Kodyani who has been convicted for Naroda Patiya riot case where as many as 90 people were killed and is undergoing imprisonment of 28 years too was granted bail on July 30,2014 on the ground of ill-health. Thus I am not surprised by the grant of bail in Pune case as rich and powerful routinely get bail but the reasons for the grant of bail particularly the religion of the victim is indeed worrisome.

Let us use this controversial case to revisit our law of bail. Two-thirds of our prisoners are undertrials. Let the bail law be liberalised to make bail a rule and jail an exception.


(The author is Vice-Chancellor of NALSAR University of Law, Hyderabad. can be reached at