[Bilkis Bano Gang rape case] Supreme Court indicates factors to be considered while entertaining application for remission under CrPC

Supreme Court: In batch of pleas against the pre-mature release of 11 convicts sentenced to life imprisonment, who had gang raped Bilkis Bano and murdered her family members during the 2002 Gujarat Communal riots, the division bench of BV Nagarathna and Ujjal Bhuyan, JJ. set aside Gujarat Government’s decision to grant remission to 11 convicts and held that the Gujarat Government 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 Code of Criminal Procedure, 1973 (‘CrPC’). Further, the Court indicated the factors that must be considered while entertaining an application for remission under the provisions of the CrPC.

1. The application for remission under Section 432 of the CrPC could be only before the State Government within whose territorial jurisdiction the applicant was convicted and not before any other Government within whose territorial jurisdiction the applicant may have been transferred on conviction or where the offence has occurred.
2. A consideration for remission must be by way of an application under Section 432 CrPC which has to be made by the convict or on his behalf. In the first instance, whether there is compliance of Section 433-A of the CrPC must be noted, inasmuch as a person serving a life sentence cannot seek remission unless fourteen years of imprisonment has been completed.
3. The guidelines under Section 432(2) regarding the opinion sought from the Presiding Judge of the Court which convicted the applicant must be complied with mandatorily.
4. The policy of remission applicable would therefore be the Policy of the State which is the appropriate Government, and which has the jurisdiction to consider that application.
5. While considering an application for remission, there cannot be any abuse of discretion. The following needs to be considered:
   • Whether the offence is an individual act of crime without affecting society at large?
   • Whether there is any chance of future recurrence of committing crime?
   • Whether the convict has lost his potentiality in committing crime?
   • Whether there is any fruitful purpose of confining this convict anymore?
   • Socio-economic condition of the convict’s family.
6. There has also to be consultation in accordance with Section 435 CrPC wherever the same is necessitated.
7. The Jail Advisory Committee which has to consider the application for remission may not have the District Judge as a Member because the District Judge, being a Judicial Officer may coincidently be the judge who may have to render an opinion independently in terms of Section 432(2) CrPC.
8. Reasons for grant or refusal of remission should be clearly delineated in the order by passing a speaking order
9. When an application for remission is granted under the provisions of the Constitution, the following may apply to consider its legality by way of judicial review:
   • that the order has been passed without application of mind;
   • that the order is mala fide;
   • that the order has been passed on extraneous or wholly irrelevant considerations;
   • that relevant materials have been kept out of consideration;

   • that the order suffers from arbitrariness.

[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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