Supreme Court: In writ petitions against the Orders dated 10-08-2022, granting remission and early release of 11 convicts guilty of committing heinous crimes during the large-scale riots in Gujarat on 28-02-2002 which occurred in the aftermath of the burning of the train incident in Godhra in Gujarat on 27-02-2002, the division bench of BV Nagarathna* and Ujjal Bhuyan, JJ. while setting aside the impugned orders of remission, held the following:
- The Government of State of Gujarat had no jurisdiction to entertain the applications for remission or pass the orders of remission on 10-08-2022 in favour of the convicts as it was not the appropriate Government within the meaning of Section 432(7) of the CrPC.
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This Court’s order dated 13-05-2022 being vitiated and obtained by fraud as it was sought by suppression of material facts as well as by misrepresentation of facts, is therefore a nullity and non est in law. All proceedings taken pursuant to the said order also stand vitiated and are non est in the eye of law.
Facts:
Bilkis Bano who was pregnant at that time was gang raped by the convicts. Further, her mother was gang raped and murdered, her cousin who had just delivered a baby was also gang raped and murdered. Eight minors including her cousin’s two-day-old infant were also murdered. The petitioner’s three-year-old daughter was murdered by smashing her head on a rock; her two minor brothers, two minor sisters, her uncles, aunt and three cousins were all murdered.
Charges of gang rape, murder and rioting armed with deadly weapons with a common intention were framed against twelve persons, six police personnel and two doctors.
Bilkis Bano approached this Court by filing a Transfer Petition seeking transfer of the trial from the State of Gujarat to a neutral place, which was granted. The Trial Court (Mumbai) convicted the eleven accused and sentenced them to life imprisonment for the offences, and one police personnel for deliberately recording the FIR incorrectly. However, the Trial Court acquitted the remaining five police personnel and the two doctors, against whom there were serious charges. On appeal, the five police officials and the two doctors who were acquitted by the Trial Court were also convicted by the Bombay High Court.
After undergoing 14 years of sentence, one of the convicts filed Criminal Application before the Gujarat High Court challenging the non-consideration of his application for premature release under Sections 433 and 433-A of the Code of Criminal Procedure, 1973 (‘CrPC’). Wherein the Court observed that had been tried in the State of Maharashtra, hence, as per Section 432 (7), the ‘appropriate government’ for the purpose of Sections 432 and 433 of the CrPC would be the State of Maharashtra. Thereafter, the Special CBI Court, Gujarat High Court rejected the application. The rest of the convicts had also applied for remission.
A writ petition was filed by the convict before this Court seeking a direction to the State of Gujarat to consider his application for pre-mature release under its policy dated 09-07-1992, which was existing at the time of commission of his crime and his conviction. Wherein, the Court noted that that the policy on the date of conviction was as per the resolution dated 09-07-1992 passed by the State of Gujarat. Hence, the convict would be governed by the same.
Thereafter, the Department of Home Affairs, Government of Gujarat, addressed a letter to the Secretary, Ministry of Home Affairs, Government of India, seeking sanction from the Government of India on the proposal for the premature release of the prisoners, which was approved. Pursuant to the concurrence of the Central Government, the State of Gujarat issued the impugned orders dated 10-08-2022. Thus, these writ petitions have been filed.
Whether the writ petition filed by Bilkis Bano under Article 32 of the Constitution is maintainable?
The Court said that Bilkis Bano has filed her writ petition under Article 32 of the Constitution to enforce her Fundamental Rights under Article 21 of the Constitution which speaks of right to life and liberty and Article 14 which deals with right to equality and equal protection of the laws. The object and purpose of Article 32 of the Constitution which is also recognised to be the “soul of the Constitution” and which is a Fundamental Right in itself is for the enforcement of other Fundamental Rights in Part-III of the Constitution. This constitutional remedy is also to enforce the goals enshrined in the Preamble of the Constitution, which speaks of justice, liberty, equality and fraternity.
Further, the convict has preferred a writ petition invoking Article 32 of the Constitution before this Court seeking a direction to the State of Gujarat to consider his case for remission under the Policy of 1992. This Court issued a categorical direction to that effect. The State has understood the said direction as if it was a command or direction to grant remission within two months. The contention regarding the State of Gujarat not being the competent State to consider the validity of the orders of remission in a petition filed under Article 226 of the Constitution, particularly, when the question of competency was raised, could not have been dealt with by the Gujarat High Court on the principle of judicial propriety.
Thus, the Court held that the writ petition filed by the Bilkis Bano cannot be dismissed on the ground of availability of an alternative remedy under Article 226 of the Constitution or on the ground of its maintainability under Article 32 of the Constitution before this Court.
Whether the writ petitions filed as Public Interest Litigation (PIL) assailing the impugned orders of remission dated 10.08.2022 are maintainable?
The Court said that Bilkis Bano has also filed a writ petition invoking Article 32 of the Constitution, which is held to be maintainable, the consideration of the point on the maintainability of the PILs has been rendered wholly academic and not requiring an answer in this case. Therefore, it kept open the question regarding maintainability of a PIL challenging orders of remission, in any other appropriate case.
Whether the Gujarat Government was competent to pass the impugned orders of remission?
While examining the scope and ambit of remission, the Court said that remission is reduction of a sentence without changing its character. In the case of a remission, the guilt of the offender is not affected, nor is the sentence of the Court, except in the sense that the person concerned does not suffer incarceration for the entire period of the sentence but is relieved from serving out a part of it. Section 432 empowers the appropriate Government to suspend or remit sentences. Further, a remission of sentence does not mean acquittal and an aggrieved party has every right to vindicate himself or herself.
The Court took note of Section 432(1) and said that it is an enabling provision, which deals with an application made to the appropriate Government for the suspension or remission of a sentence and the appropriate Government may require the Presiding Judge of the Court before or by which the conviction was had or confirmed, to state his opinion as to, whether, the application should be granted or refused, together with his reasons for such opinion and also to forward with the statement of such opinion a certified copy of the record of the trial.
The Court noted that the expression “appropriate Government” used in Section 432 as well as in Section 433, is defined in sub-section (7) of Section 432. In cases where the sentence is for an offence against, or the order referred to in sub-section (6) is passed under, any law relating to a matter to which the executive power of the Union extends, the Central Government; and in other cases, the Government of the State within which the offender is sentenced or the said order is passed.
Thus, the Court said that it is apparent that the conviction and sentence of the Court which had tried the case assumes significance and the appropriate Government may have to seek the opinion of the Presiding Judge of the Court before which the conviction took place, before passing an order of remission, particularly when an application is filed by or on behalf of a convict seeking remission. Thus, 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.
Thus, it was held that the definition of appropriate Government in sub-section (7) of Section 432 clearly indicates that the Government of the State within which the offender is sentenced is the appropriate Government to pass an order of remission.
The Bench added that even in a case where the trial has been transferred by this Court from a court of competent jurisdiction of a State to a court in another State, it is still the Government of the State within which the offender was sentenced which is the appropriate Government which has the jurisdiction as well as competency to pass an order of remission under Section 432 of the CrPC. Therefore, it is not the Government of the State within whose territory the offence occurred, or the convict is imprisoned which can assume the power of remission.
The Court also indicated the factors that must be considered while entertaining an application for remission under the provisions of the CrPC.
Whether the impugned orders of remission passed by the State of Gujarat in favour of convicts are in accordance with law?
The Court said that the Gujarat Government had usurped the powers of the State of Maharashtra which only could have considered the applications seeking remission. Hence, the doctrine of usurpation of powers applies in the instant case. Consequently, the Policy dated 09-07-1992 of the State of Gujarat was not applicable to the case of the convicts
Further, the opinion of the Presiding Judge of the Court before which the conviction of was made in the instant case i.e. Special Court, Mumbai (Maharashtra) was rendered ineffective by the Gujarat Government, which in any case had no jurisdiction to entertain the plea for remission
The opinion of the Sessions Judge was wholly without jurisdiction as the same was in breach of sub-section (2) of Section 432 of the CrPC. Moreover, it said that while considering the applications seeking remission, the Jail Advisory Committee, and the other authorities had lost sight of the fact that the convicts had not yet paid the fine ordered by the Special Court, Mumbai which had been confirmed by the Bombay High Court.
Thus, by emphasizing the rule of law, the Court directed the convicts to report to the jail authorities within two weeks.
[Bilkis Yakub Rasool v Union of India, 2024 SCC OnLine SC 25, decided on 08-01-2024]
*Judgment Authored by: Justice BV Nagarathna
Justice BV Nagarathna: Igniting Hope for the First Ever Woman Chief Justice of India
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