New Delhi: The May 2022 judgment of the Supreme Court that became the foundation for the Gujarat government to decide the remission applications of 11 convicts in the Bilkis Bano case was contrary to the law, the apex court ruled Monday.
The two-year-old order also went against binding judgments of the top court delivered in earlier cases, a two-judge bench led by Justice B.V. Nagarathna said as it quashed the Gujarat government’s August 2022 order that allowed the premature release of the men, who were convicted of gang rape and murder.
Monday’s judgment, delivered on Bano’s petition challenging the state’s remission order, held that Gujarat lacked competence and jurisdiction to adjudicate on the remission applications because the trial and sentencing of the accused took place in a special CBI court in Mumbai, Maharashtra.
Therefore, the bench, upon a combined reading of relevant provisions of Section 432 of the Criminal Procedure Code (CrPc) — which deals with the early release of convicts — said Maharashtra was the appropriate government under the law to decide the applications in Bano’s case.
The bench came down heavily on the Gujarat government for abusing its “discretionary power” in the case.
According to the judgment, the Gujarat government “usurped” the authority that fell in Maharashtra government’s domain in granting remission to the convicts.
In defence of its decision, the Gujarat government had relied upon the top court’s 13 May 2022 verdict, which directed it to consider one of the 11 convicts’ remission application under the state’s 1992 policy that allowed rape convicts to apply for early release.
This judgment came on a petition filed by convict Radheshyam Bhagwandas Shah, and it held Gujarat as the appropriate government to rule on his remission application.
Monday’s decision, however, noted that, in those proceedings, the Gujarat government had acknowledged the Maharashtra government as the appropriate authority to decide upon remission applications in Bano’s case.
Yet, “strangely,” Justice Nagarathna’s bench opined, the two-judge bench that authored the May 2022 verdict rejected this contention of Gujarat.
“This portion of the order (May 2022) of this court is contrary to the judgments of this court and Section 432 (7) of CrPc. This implies the said order is per se per incuriam (passed with lack of due care),” the bench said, adding “this is a classic case where the order of this court (of May 2022) has been used for violating the rule of law, while passing orders of remission, in the absence of any jurisdiction by Gujarat”.
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Facts withheld
The 2022 judgment, the bench noted, was not just contrary to a five-bench order on the principle governing remission, but also a nine-judge bench ruling in the Naresh Shridhar Mirajkar case of 1966 that held no writ petition alleging a violation of fundamental rights would lie against the judgment or order of a court.
In the bench’s view, the 2022 judgment overruled a 2019 Gujarat High Court order that dismissed Radheshyam Bhagwandas Shah’s petition requesting it to direct the Gujarat government to consider his remission plea.
The Gujarat HC had asked Shah to approach Maharashtra for his remission, which he did within 14 days of the order.
According to Monday’s verdict, the top court could not have set aside the high court’s order in the absence of a direct challenge to it.
Shah had not directly questioned the high court judgment, but referred to it while arguing his writ petition filed under Article 32, which can be done only when there is breach of someone’s fundamental right.
The court noted that Shah’s Article 32 petition filed in 2022 did not disclose the fact that he had complied with the Gujarat High Court’s 2019 judgment and made a representation before the Maharashtra government for his early release.
In accordance with the procedure, Maharashtra had sought views of the stakeholders concerned — such as the trial court that convicted and sentenced the accused in the case, the prosecuting agency, the CBI, the superintendent of police, and the district magistrate of Dahod, Gujarat.
When Shah realised that all the opinions did not favour him, he moved the top court under Article 32, suppressing these facts, the court noted.
“In fact, there was no pleading or prayer for seeking setting aside of the Gujarat High Court order dated (2019) nor was there any challenge to the said order. That said, order had attained finality as no special leave petition as against the said order was filed by the writ petitioner, Radheshyam Bhagwandas Shah; rather he had acted upon it,” notes Monday’s verdict.
“Curiously, in the writ petition filed under Article 32 of the Constitution, the order (2019) has been set aside even in the absence of there being any prayer thereto nor any discussion of the same,” it adds.
Another misrepresentation made by Shah, which was overlooked by the SC in its May 2022 decision, was with regard to a 2013 order of the Bombay High Court.
Although this order had declined to consider one of the other convicts’ requests to transfer him to a jail in Gujarat, Shah in his Article 32 writ petition before the SC projected that the 2013 Bombay HC order and the 2019 Gujarat HC order were contrary to each other.
Justice Nagarathna’s bench said Monday that the top court’s May 2022 judgment did not factor in that the issue of remission never arose before the Bombay HC, which only dealt with another convict’s plea to move him to Gujarat.
The SC added that there was no review filed by the Gujarat government against the May 2022 judgment, even though it dismissed the state’s contention that Maharashtra was the appropriate government to take a call on remission applications of convicts in Bano’s case.
A review petition filed by Bano was dismissed by the top court in December 2022.
On account of suppression of facts as well as misleading the court with erroneous facts, the bench declared the 13 May 2022 order “is vitiated by fraud and is hence a nullity and the same cannot be binding on the parties to the said order or to Bilkis Bano, who was not arrayed as a party in the said writ petition (of 2019).”
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Gujarat govt’s ‘non-application of mind’
The 2022 judgment, the court remarked, did not discuss the implication of the cancellation of the 1992 remission policy by Gujarat. Shah never informed the bench that the 1992 policy had been substituted by another policy in 2014, which denied remission to certain categories of convicts, one of them being rape.
Realising he would not be released under the 2014 remission policy, Shah moved the top court with a specific prayer to direct Gujarat to consider his case under the previous policy, the court said.
Since the court was not informed about the substitution of the old policy with a new one, there was no discussion on the impact of the same in the judgment, the SC said.
While interpreting Section 432 CrPc, the bench held Maharashtra was the appropriate government to decide the convicts’ remission applications. In the present case, it said, not only the investigation but also the trial of the case was transferred from the state of Gujarat to Maharashtra.
It discussed at length the procedure prescribed in Section 432 that requires the appropriate government to seek the opinion of the presiding judge of the court before or by whom the conviction was confirmed.
The bench emphasised the significance of the court that adjudicates the case, and pointed to the definition in sub-section 7 of Section 432 that explicitly suggests that the state in which the offender is sentenced is the appropriate government for according remission.
“The place of occurrence of the incident or place of imprisonment of the convict are not relevant considerations and the same have been excluded from the definition of the expression ‘appropriate government’ in clause (b) of sub-section (7) of Section 432,” the court said.
“If the intention of the Parliament was that irrespective of the court before which the trial and conviction had taken place, the order of remission can be considered by the government within whose territorial jurisdiction the offence has been committed or the offender is imprisoned, the same would have been indicated by the definition,” it added.
The court also made critical observations over the “non-application of mind” by the Gujarat government in its remission orders. All orders are “stereotyped and cyclostyled”, it said.
The bench conceded that the power to grant remission on an application filed by a convict or on his behalf is ultimately an exercise of discretion by the appropriate government.
But it cannot be in an arbitrary or perverse manner, as exercised in the present case. If there is an improper exercise of discretion, it is an instance of abuse of discretion, the court said.
The court held that even though Gujarat claims to have followed the top court’s May 2022 verdict, the same, too, would be an instance of “usurpation of power” in view of the settled law under the CrPc.
“We fail to understand as to, why, the state of Gujarat… did not file a review petition seeking correction of the order (of 2022). Had the state filed an application seeking review of the said order and impressed upon this court that it was not the appropriate government, ensuing litigation would not have arisen at all,” the bench held.
Gujarat, instead, “acted in tandem and was complicit” with convict Radheshyam Bhagwandas Shah, something the top court had apprehended at previous stages, it said, adding that the top court had thus intervened on three earlier occasions in the interest of justice and truth that led it to transfer the investigation of the case to the CBI and then move the trial to Mumbai.
By not filing a review against the 2022 verdict, the SC said, “rule of law has been breached in usurping power not vested in it (Gujarat government), thereby aiding” the convict.
Further, the bench listed a procedural flaw in the remission. It noted that the Gujarat government had ignored the opinion of the special judge, Mumbai, who had previously opposed Radheshyam Bhagwandas Shah’s remission and, instead, obtained inputs from a local sessions court at Dahod.
As for the opinion given by the Dahod judge, the SC said it was vitiated for two reasons.
Firstly, because he was not the presiding judge of the court that convicted the accused and, secondly, the judge was a member of the jail advisory committee, which was not in line with the scheme of the law.
The court also noticed that the advisory committee that recommended the early release of the convicts had failed to consider non-payment of fine by them, as was directed by the trial court that sentenced them.
In the absence of non-compliance with this direction, the convicts should have undergone the default sentence prescribed in the trial court’s judgment. The convicts paid the fine only when the matter was being heard in the top court, after it was brought to the latter’s notice.
(Edited by Sunanda Ranjan)
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