A detailed study or summary of judgment by the editor
Total pages of the judgment are 251. In that 101 pages have been dedicated to facts, arguments on behalf of the petitioners, respondent (accused) and reply submissions
The incident is the aftermath of the Godhra burning train incident. The brutal offence is all the accused herein have Gang raped a pregnant women (petition Bilkis) and further murdered 11 persons (human beings) including two days old infant. The current appeal is preferred by the petitioner Bilkis against the remission (release by the government) granted by the State of Gujarat against the accused.
Now the factual background is after the incident happened a First Information Report was registered against the accused and the State Government of Gujarat through the Inspector of Police (who is the investigation officer) has filed a Final report stating that the accused persons were not traceable and further closed the case (legally named as closure report).
Petitioner Bilkis has preferred an objection against he report filed by the State Government of Gujarat through SHO (Investigation Officer) and the same was allowed. The case further transferred to CBI. The CBI after thorough investigation has filed a Final report stating that the offence is true and further arrested the accused persons (legally named as charge sheet).
On application the case has been transferred to State of Maharashtra (Mumbai) from State of Gujarat (Ahamedabad). After the full-fledged trial, the Trial court (special court) had convicted 11 accused (including the police personally who filed a false FIR) and further acquitted 4 accused. In appeal the Hon’ble Mumbai High Court (one of the judges of the division bench was Her Lordship Mrs. V. K. Tahilramani, then the Chief Justice of Madras High Court retired) Division Bench has not only confirmed the trial court’s conviction of 11 accused persons further turned the acquittal of 4 other accused persons into conviction.
[Offence and conviction details: Fourteen counts of murder and three counts of rape and in the event of default in payment of said fine, sentenced them to suffer rigorous imprisonment for a further period of two years each for each count]
Thereafter as per the Jail advisory committee and Sessions judge of Godhra gave affirmative opinion regarding premature release of all the accused, State of Gujarat on the approval of Government of India has released all the accused dated: 10.08.2022. Against that order release dated: 10.08.2022 the present writ petition was filed.
On behalf of the petitioner it was argued that though the crime was committed in State of Gujarat, trial was conducted and completed in State of Maharashtra and hence, the accused have to seek remedy before the Hon’ble Bombay High court. It was further argued on the side of the petitioner that the ‘appropriate government’ to give remission is State of Maharashtra and not State of Gujarat. Petitioner placed reliance on Sangeet vs. State of Haryana, (2013) 2 SCC 452
Further after a detailed submissions made on behalf of all the writ petitioners as such the orders of the State Government of Gujarat though prerogative but does not immune from Judicial review and sought for quashing the orders made by the State Government of Gujarat remitting the sentence of the accused.
On behalf of the accused it was contended before the Hon’ble Supreme Court as if the Writ petition itself is not maintainable and the petitioners ought to have filed only curative petition.
Accused submitted that there was an earlier order the Hon’ble Supreme court to directing the State of Gujarat to consider the application for premature release of respondent No.3 in terms of the policy. Hence, the order of remission was properly granted after considering all the legal concerns.
Further on behalf of the accused the attack was made on the Apex court and Hon’ble High Court that it is open for the High Court as well as this Court to modify the punishment by providing for a specific period of incarceration without remission, considering the purported heinous nature of the offence but neither the High Court nor this Court chose to exercise the said power to incarcerate the private respondents herein for a duration which was non remittable.
Hon’ble Supreme Court judges when narrating the powers of the courts and rights of the victim under Article 32 of the Constitution of India held that the present Writ Petition cannot be dismissed on the ground of availability of an alternative remedy.
Further the Hon’ble Supreme Court keen on saying that in earlier occasion Hon’ble Supreme court’s order was interpreted by the State Government of Gujarat as if a direction or command to grant remission and hence now a detailed order saying that the petitioner Bilkis bano has rightly approached this court and held that the petition is maintainable.
With regard to point no.2 whether PIL is maintainable was addressed but not answered by the Hon’ble supreme Court and left open for appropriate case reasoning that the victim herself is one of the petitioners and the point no.1 was answered as the present writ petition is maintainable, therefore point no.2 whether Public Interest Litigation (public interest involved) shall be decided in appropriate cases.
Hon’ble Supreme Court has elaborately discussed about remission. While explaining its (remission) ambit and scope Apex court has held that 1) the remission of sentence does not mean acquittal 2) Convicts have no constitutional right for obtaining remission 3) A circular or letter by State Government is not an order for remission.
After considering the series of judgments relating to the ambit and scope of remission, Hon’ble Apex Court has now turned into procedural law.
Apex Court has explained that Section 434 states that the powers conferred by Sections 432 and 433 upon the State Government may in case of sentences of death also be exercised by the Central Government concurrently.
Hon’ble Supreme court after found out that the earlier order obtaining direction by playing fraud has categorically held that State of Gujarat has no jurisdiction to entertain the applications for remission.
Hon’ble Supreme court has heavily come down on the order of remission as the remission order of State of Gujarat is nothing but the abuse of discretion.
by. Ramprakash Rajagopal, Advocate.
THE JUDGMENT
Incident is the aftermath of the Godhra burning train incident
- These writ petitions have been filed assailing the Orders dated 10.08.2022, granting remission and early release of respondent Nos.3 to 13 in Writ Petition (Crl.) No.491 of 2022 (which petition shall be considered to be the lead petition), who were all convicted, having been found guilty of committing heinous crimes during the large-scale riots in Gujarat on 28.02.2002 and a few days thereafter which occurred in the aftermath of the burning of the train incident in Godhra in the State of Gujarat on 27.02.2002.
The brutal offence – Gang raping the pregnant women petitioner and murdering 11 persons including two days old infant.
2.1. The grotesque and diabolical crime in question was driven by communal hatred and resulted in twelve convicts, amongst many others, brutally gang-raping the petitioner in Writ Petition (Crl.) No.491 of 2022, namely, Bilkis Yakub Rasool, who was pregnant at that time. Further, the petitioner’s mother was gang raped and murdered, her cousin who had just delivered a baby was also gang raped and murdered. Eight minors including the petitioner’s 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 phupha, phupi, mama (uncle, aunt and uncle respectively) and three-cousins were all murdered.
Appeal: Bilkis Bano/victim approached Apex court against the remission granted by the Gujarat State Government against accused 3 to 13
2.2. While eventually, the perpetrators of the crime, including the police personnel were convicted and sentenced, the petitioner, who was aged twenty-one years and pregnant at that time, having lost all members of her family in the diabolical and brutal attacks, has once again approached this Court seeking justice by challenging the en-masse remission granted to respondent Nos.3 to 13. Bilkis Yakub Rasool, being an unfortunate victim of the heinous crimes hereinabove narrated, has filed the present writ petition under Article 32 of the Constitution of India, seeking issuance of a writ, order or direction quashing the Orders dated 10.08.2022 passed by the State of Gujarat by which the convicts in Sessions Case No.634 of 2004, Mumbai (respondent Nos.3 to 13 herein), whose convictions were upheld by a Division Bench of the Bombay High Court and thereafter by this Court, have been released prematurely.
Factual background
Fir, closure report and protest petition
- The factual background in which these writ petitions have been filed is that following the aforesaid unfortunate and grave incident, a First Information Report (“FIR” for short) was registered against unknown accused, on 04.03.2002. The Investigation Agency filed a closure report stating that the accused could not be traced and the said closure report was accepted by the Judicial Magistrate vide Order dated 25.03.2003. The closure report was challenged by the petitioner-victim- Bilkis Yakub Rasool, before this Court in Writ Petition (Crl.) No.118 of 2003. This Court directed the reopening of the case and transferred the investigation of the same to the Central Bureau of Investigation (“CBI” for short).
Case transferred to CBI and CBI after investigation filed charge sheet against 20 persons
3.1. The CBI commenced a fresh investigation and submitted a chargesheet on 19.04.2004 against twenty persons accused of the crime. 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
Case transferred from Gujarat to Maharashtra (Mumbai)
3.2. The petitioner-victim approached this Court by filing Transfer Petition (Crl.) No.192 of 2004, seeking transfer of the trial from the State of Gujarat to a neutral place. This Court in Transfer Petition (Crl.) No.192 of 2004, by an Order dated 06.08.2004, in the peculiar facts and circumstances of the case, considered it appropriate to transfer Sessions Case No.161 of 2004 pending before the learned Additional Sessions Judge, Dahod, Ahmedabad to the competent Court in Mumbai for trial and disposal. Charges were framed on 13.01.2005 amongst others against the eleven convicts for the commission of offences under Sections 143, 147, 302, 376(2)(e) and (g) of the Indian Penal Code, 1860 (hereinafter referred to as the “IPC” for the sake of brevity).
Trial court convicted 11 accused and one police officer for recording incorrect fir
3.3. The Special Judge, Greater Mumbai, vide Judgment dated 21.01.2008 in Sessions Case No.634 of 2004 convicted the eleven accused and sentenced them to life imprisonment for the commission of the offences of, inter alia, gang rape and murder of the petitioner’s mother; gang rape and murder of her cousin Shamim; murder of twelve more victims including the three and a half year old daughter of the petitioner, rioting, etc. 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. Respondent Nos.3 to 13 herein were convicted for the offences punishable under Sections 143, 147, 148, 302 r/w 149 of the IPC for the murder of fourteen people; Section 376 (2)(e) & (g) for having committed gang-rape on the petitioner-victim; Section 376(2)(g) for having committed gang rape on other women. The police officer, Somabhai Gori was convicted of the offence punishable under Sections 217 and 218 of the IPC.
Bombay High Court ordered the prisoner to be transferred to the prison of his state
3.4. On 05.08.2013, a Division Bench of the High Court of Bombay passed an Order in Criminal Writ Petition No.305 of 2013 titled Ramesh Rupabhai Chandana vs. State of Maharashtra, preferred by respondent No.13 herein, holding that where a trial has been transferred from one State to another and such trial has been concluded and the prisoner has been convicted, the prisoner should be transferred to the prison of his State.
Hon’ble Bombay High Court confirmed the conviction of 11 accused and further convicted the person who were acquitted by the trial court
3.5. Against the judgment of the Trial Court dated 21.01.2008, the persons convicted, as well as the State filed Criminal Appeals before the Bombay High Court. While the convicts filed criminal appeals assailing their conviction, the State filed criminal appeal against acquittal of the police officials and the doctors A bench comprising Mrs. Mridula Bhatkar and Mrs. V. K. Tahilramani, JJ. of the Bombay High Court upheld the conviction of the eleven persons accused of the offence of rioting armed with deadly weapons, gang-rape and murder by judgment dated 04.05.2017 in Criminal Appeal Nos.1020-1023 of 2009, 487 of 2010, 194 and 271 of 2011 titled Jaswantbhai Chaturbhai Nai vs. State of Gujarat. The five police officials and the two doctors who were acquitted by the Trial Court were also convicted by the High Court. The High Court also observed that the investigation by the Gujarat police was not proper and that the Gujarat police had taken the investigation in the wrong direction from the beginning i.e., the day of registering the FIR. That the investigation was not only unsatisfactory but it also smacked of dishonest steps to shield the culprits. It was further observed that the earlier investigation had played the role of a villain in the case. The High Court while going through the evidence also noted that “the truth and the falsehood are mixed up in such a manner that at every stage of investigation the truth is hidden under layers of intentional laxity, omissions, contradictions and falsehood and the truth is required to be unearthed”.
Special Leave Petition preferred by all the accused were dismissed and upheld the findings of the Hon’ble High Court
3.6. All the persons convicted filed Special Leave Petitions against the judgment of the High Court. This Court vide Order dated 10.07.2017 passed in SLP (Crl.) Nos.4290/2017, 4705/2017 and 4716/2017 and by Order dated 20.11.2017 passed in SLP (Crl.) No.7831/2017 dismissed the Special Leave Petitions preferred by the convicts and upheld the findings rendered by the High Court, as well as the sentence awarded.
One of the accused has preferred application for premature release before the Gujarat High Court which got dismissed stating he has seek remedy before Hon’ble Bombay High Corut
3.8. After undergoing 14 years 5 months and 6 days of his sentence, respondent No.3 herein, namely, Radheshyam Bhagwandas Shah, filed Criminal Application No.4573 of 2019 before the Gujarat High Court challenging the non-consideration of his application for premature release under Sections 433 and 433A of the Code of Criminal Procedure, 1973 (hereinafter, the “CrPC” for the sake of brevity). The High Court after considering the submissions observed that respondent No.3 herein 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. The High Court placed reliance on the dictum of this Court in Union of India vs. V. Sriharan, (2016) 7 SCC 1 (“V. Sriharan”) and by Order dated 17.07.2019 directed the petitioner therein (respondent No.3 herein) to pursue his remedy within the State of Maharashtra.
3.18. In the aforesaid backdrop, when various steps were in progress at various stages, stealthily a writ petition, being Writ Petition (Crl.) No.135 of 2022 titled Radheshyam Bhagwandas Shah vs. State of Gujarat, (2022) 8 SCC 552 (“Radheshyam Bhagwandas Shah”), was filed before this Court by respondent No.3 herein, seeking a direction in the nature of mandamus 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.
Remission
Jail advisory committee of State of Gujarat recommended grant of remission to all the accused
3.20. Pursuant to the judgment of this Court dated 13.05.2022, a meeting of the Jail Advisory Committee of the State of Gujarat took place on 26.05.2022 and all the members recommended grant of remission to respondent Nos.3 to 13.
Sessions judge Godhra gave affirmative opinion regarding premature release of accused
3.21. The Sessions Judge, Godhra, also considered the applications of respondent Nos.3 to 13 and upon going through the particulars provided by the Jail Superintendent, Sub-Jail, Godhra noted that the said report recorded that the convicts had demonstrated good behavior and conduct during the period of incarceration and that no adverse incident had been recorded against the convicts even when they were on furlough or on parole, except against one convict, namely, Mitesh Chimanlal Bhatt. That all convicts, by and large, surrendered themselves within the time after enjoying parole/furlough and participated in rehabilitation and corrective programmes. That the convicts still had substantial years of life remaining. Accordingly, the Sessions Judge applied the policy dated 09.07.1992 and gave an ‘affirmative’ opinion as regards the premature release of respondent Nos.3 to 13.
Government of India conveyed approval for premature release of all convicts
3.23. On 28.06.2022, 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, respondent Nos.3 to 13.
3.24. By letter dated 11.07.2022, the Ministry of Home Affairs, Government of India conveyed its approval under Section 435 of the CrPC for the premature release of all 11 convicts, respondent Nos.3 to 13.
State of Gujarat issued order of remission dated: 10.08.2022
3.25. Pursuant to the concurrence of the Central Government, the State of Gujarat issued the impugned orders dated 10.08.2022.
Present writ petition was filed against the order dated: 10.08.2022
3.26. In the above background, these writ petitions have been filed, praying, inter-alia, for issuance of a writ, order, or direction, quashing the Orders dated 10.08.2022.
Arguments on behalf of the petitioner
Though the crime was committed in Gujarat but the trial was conducted in Maharashtra
7.1. It was asserted that though the crime was committed in the State of Gujarat, the investigation and trial were carried out in the State of Maharashtra pursuant to the orders of this Court. Hence, in view of the unambiguous language of Section 432(7)(b), only the State of Maharashtra would be the appropriate government which could have considered the applications filed by respondent Nos.3 to 13 seeking remission of their sentences. Learned counsel has placed reliance on the following judgments to buttress her argument, namely, State of M.P. vs. Ratan Singh, (1976) 3 SCC 470 (“Ratan Singh”); Government of A.P. vs. M.T. Khan, (2004) 1 SCC 616 (“M.T. Khan”); Hanumant Dass vs. Vinay Kumar, (1982) 2 SCC 177 (“Hanumant Dass”) and V. Sriharan.
Appropriate government is Maharashtra and not Gujarat
7.2. According to learned counsel, once a competent Court in the State of Maharashtra had tried and convicted the accused then that State is the ‘appropriate Government’. Therefore, the Orders of remission passed by the State of Gujarat in respect of respondent Nos.3 to 13 is without jurisdiction and a nullity and thus, are liable to be quashed.
Remission orders did not meet the criteria laid down by Apex Court
7.5. It was further contended that the remission orders under challenge failed to meet the criteria laid down by this Court in Sangeet; and Ram Chander vs. State of Chhattisgarh, (2022) 12 SCC 52 (“Ram Chander”), wherein it has been stated that the appropriate government must obtain the opinion of the Presiding Judge of the convicting court before deciding the remission application. That the State of Gujarat granted remission to all the convicts by completely ignoring the negative opinions expressed by two major stakeholders i.e., the Presiding Judge of the convicting Court in Mumbai and the prosecuting agency (CBI).
Convict cannot claim remission as a matter of right
7.6. Reliance was placed on the decisions of this Court in State of Haryana vs. Mohinder Singh, (2000) 3 SCC 394 (“Mohinder Singh”); Sangeet; Ratan Singh, and Laxman Naskar vs. State of West Bengal, (2000) 2 SCC 595 (“Laxman Naskar”) to emphasize that a convict cannot claim remission as a matter of right. The remission policies only give a right to the convict to be considered and do not provide an indefeasible right to remission.
Grant of remission shall not be arbitrary
7.7. Further, reference was made to the dicta of this Court in Mohinder Singh; Epuru Sudhakar vs. State of A.P., (2006) 8 SCC 161 (“Epuru Sudhakar”); Maru Ram; Sangeet; Ratan Singh and Laxman Naskar to contend that the decision to grant remission should be well informed, reasonable and fair and that the power cannot be exercised arbitrarily.
Prerogative power of remission is not immune from judicial review
7.9. It was urged that the prerogative power of remission is not immune from judicial review, vide Epuru Sudhakar wherein it was observed that judicial review of the order of remission is available on the following grounds: (i) non-application of mind; (ii) order is mala fide; (iii) order has been passed on extraneous or wholly irrelevant considerations; (iv) relevant materials kept out of consideration; (v) order suffers from arbitrariness.
Detailed submission of petitioners
8.1. The following submissions were made to contest the orders of remission:
(i) that when the actions of the State cause some harm to the general public, an action by a concerned citizen would be maintainable and reliance was placed on B.P Singhal vs. Union of India, (2010) 6 SCC 331 (“B.P Singhal”) in this regard.
(ii) that the impugned decisions of remission is characterized by arbitrariness and mala fides and bear no consideration of relevant factors That the power of the executive must be exercised in line with constitutional ideals and must be for the benefit of the public. In this regard, reliance is placed on Maru Ram and S.P. Gupta vs. Union of India, (1981) Supp SCC 87 (“S.P. Gupta”).
(iii) that there exists no statutory right of appeal against an order of remission. The only avenue available to assail an order of remission is either under Article 32 or Article 226. Reliance was placed on Epuru Sudhakar and Ram Chander. Further, the jurisdiction of this Court is not ousted by the existence of alternative legal remedies. Reliance was placed on a Constitution Bench decision of this Court in Kavalappara Kottarathil Kochuni vs. States of Madras and Kerala, (1960) 3 SCR 887 (“Kochuni”).
(iv) that the present proceedings pertain to administrative law and not criminal law and as a result, the principle of being a stranger to the criminal proceeding does not apply to the case at hand. Nevertheless, this Court has entertained petitions filed by ‘strangers’ in criminal matters in the past, as in the case of K. Anbazhagan vs. Superintendent of Police, (2004) 3 SCC 767 (“K. Anbazhagan”).
(v) that such exercises of executive power may be challenged on the basis of the grounds laid down in Epuru Sudhakar and Maru Ram.
(vi) that an important question of law arises in the present proceedings, namely, whether it is appropriate to grant remission after a period of fourteen years to convicts of heinous crimes. That a further question arises, as to whether, the victims of such crimes must be heard and due consideration given to their vulnerability prior to the grant of remission. That there needs to be a consideration of how compliant such executive actions and the associated policies are with constitutional morality. Therefore, this Court may quash the remission orders passed under Section 432 of the CrPC if they appear to be poorly reasoned.
(vii) that there is a need to situate the crimes committed in the larger context of sectarian and communal violence that was ensuing in the 2002 riots in Gujarat State. That the crimes were specifically targeted at the victim on the basis of her religion and gender. That these heinous crimes constitute crimes against humanity. It was submitted that the nature of the crime is important to consider while deciding whether to grant remission. The heinousness of the crimes committed by respondent Nos.3 to 13, the communal motivation of the crimes and the context in which those took place are contended to have not been considered by the State while granting remission. Reliance was placed on Sanaboina Satyanarayana vs. Government of Andhra Pradesh, (2003) 10 SCC 78 (“Sanaboina Satyanarayana”), wherein a certain Government Order issued by the State of Andhra Pradesh that excluded from the scope of remission those prisoners who had committed crimes against women and were sentenced to life imprisonment was upheld by this Court considering the nature of the offences.
(viii) that the Executive is bound not merely by provisions of the CrPC but also by the overarching spirit of the Constitution that seeks to promote the upliftment of women, children, and minorities and to protect these groups from further vulnerability and marginalization. That the policies and actions of the State must be guided by this vision.
(ix) that, in accordance with the aforementioned constitutional principles, grant of remission to those persons sentenced to life imprisonment and accused of crimes under the Scheduled Castes and Schedules Tribes (Prevention of Atrocities) Act, the Explosive Substances Act and the Indian Arms Act, as well as crimes against women under Sections 376 and 354 of the IPC must not be permissible. Factors such as the opinion of the Presiding Judge, public interest, potential for recidivism, impact on the victims and on society and the nature of the offence must be borne in mind by the State, as held in Epuru Sudhakar, Sanaboina Satyanarayana and Zahid Hussain vs. State of West Bengal, 2001 (3) SCC 750 (“Zahid Hussain”). That the non-consideration of these factors proves the mala fide, arbitrary and unreasonable manner in which the impugned orders were passed.
(x) that the 1992 Policy of remission of the State of Gujarat does not contain any substantive guidelines pertaining to remission and merely deals with procedural formalities. That the 2014 Policy is thus the first instance at which categories of crimes for which remission may not be granted was outlined. As such, it is the 2014 Policy that would apply to the question of remission for respondent Nos.3 to 13.
(xi) that the grant of remission to the respondent Nos.3 to 13 is in violation of India’s obligations under international law, specifically instruments such as the International Covenant on Civil and Political Rights and the Convention on the Elimination of All Forms of Discrimination Against Women. That rape was used as a tool of oppression by the perpetrators and the victim in the instant case experienced significant trauma as a consequence.
(xii) that the grant of remission in the instant case is in violation of the obligation to prevent crimes against humanity, which itself forms a part of the norm of jus cogens. That there is a link between the peremptory norm of jus cogens and fundamental values, making the former non-derogable and a part of domestic law even if not explicitly codified. Reliance was placed on State of Punjab vs. Dalbir Singh, (2012) 3 SCC 346 (“Dalbir Singh”) on this aspect.
(xiii) that the acts of violence that were committed in Gujarat in 2002 are crimes against humanity, owing to their widespread nature and communal motivations. That remission must not be granted to perpetrators of crimes of such gravity.
Finally petitioners sought quashing of the order of State Government of Gujarat
8.2 With the above submissions learned senior counsel for the petitioners sought quashing of the impugned orders.
Arguments of the accused
- Learned Counsel for respondent No.3, Sri Rishi Malhotra at the outset attacked the maintainability of the writ petitions on the ground that in substance, the petitions seek to challenge the judgment of this Court dated 13.05.2022 in Writ Petition (Crl.) No.135 of 2022; that the same is impermissible and is in the teeth of the judgment of a Constitution Bench of this Court in Rupa Ashok Hurra vs. Ashok Hurra, (2002) 4 SCC 388, (“Rupa Ashok Hurra”) wherein it has been held that a writ petition assailing the judgment or order of this Court after the dismissal of the Review Petition is not maintainable. Thus, the only remedy, if any, available to the petitioner-victim herein against the dismissal of the Review Petition, is to file a Curative Petition as propounded by this Court in the case of Rupa Ashok Hurra.
Accused argued that the current bench cannot circumvent the orders of the earlier bench of the Hon’ble Supreme Court dated: 13.05.2022
13.1. Sri Rishi Malhotra further submitted that in this proceeding this Court cannot sit over the judgment passed by another co ordinate bench. It was further submitted that this Court by its judgment dated 13.05.2022 was right in categorically directing the State of Gujarat to consider the application for premature release of respondent No.3 in terms of the policy dated 09.07.1992 which was applicable on the date of conviction. That after duly taking into account the fact that respondent No.3 had undergone over fifteen years of imprisonment and that no objections were received from the Jail Superintendent, Godhra and that nine out of ten members of the Jail Advisory Committee had recommended his premature release. That coupled with the aforesaid facts the Home Department of the State of Gujarat as well as the Union Government had recommended and approved the premature release of respondent No.3. This clearly demonstrates that the remission order was correct. Further, it is nowhere mentioned in the 1992 policy that all stakeholders must give a unanimous opinion for the release of the convict. All it says is that the State Government should collate various opinions from different quarters in order to arrive at a decision.
Detailed submissions on behalf of accused
- At the outset, learned senior counsel appearing for respondent No.13, Sri Sidharth Luthra contended that a writ petition does not lie against the final order of this Court, thus the petitioners could have only filed a Curative Petition. He further submitted as follow:
i) In this regard reliance was placed on the decision of this Court in Rupa Ashok Hurra, wherein it was held that a writ petition under Article 32 assailing a final judgment of this Court is not maintainable. That since the Review Petition against the Order dated 13.05.2022 has been dismissed by this Court, similar contentions cannot be re-agitated in the guise of the present writ petition. Reliance was also placed on the decision of this Court in Naresh Shridhar Mirajkar vs. State of Maharashtra, AIR 1967 SC 1 (“Naresh Shridhar Mirajkar”), wherein it has been held that a writ shall not lie against an order of a Constitutional Court. It was thus submitted that the order dated 13.05.2022 has attained finality and cannot be questioned by way of a writ petition under Article 32. Furthermore, in view of the Rules framed by this Court, Order XLVIII thereof lays down how an order of this Court can be questioned by means of a Curative Petition and thus, a natural corollary is that the same cannot be done through a writ petition.
ii) As regards the issue of appropriate government and appropriate policy, learned senior counsel Sri Luthra submitted that the said issues stood settled in view of this Court’s Order dated 13.05.2022. The judgments of this Court in Rashidul Jafar vs. State of U.P., 2022 SCC OnLine SC 1201 (“Rashidul Jafar”); State of Haryana vs. Raj Kumar, (2021) 9 SCC 292 (“Raj Kumar”) and Hitesh vs. State of Gujarat (Writ Petition (Crl.) No.467/2022) (“Hitesh”) were pressed into service wherein it had been held that the policy as on the date of conviction would apply, and therefore, the 1992 Policy of the State of Gujarat will apply for the grant of remission in the present case.
iii) Learned senior counsel thereafter raised the plea that in India, a reformative/rehabilitative and penal sentencing policy is followed and not one which is punitive in nature. The same was reiterated when the Model Prison Act, 2023 was finalized which aims at “reforming prison management and ensuring the transformation of inmates into law-abiding citizens and their rehabilitation in society.” Furthermore, in the case of Vinter vs. The United Kingdom (Applications Nos.66069/09, 130/10 and 3896/10), (2016) III ECHR 317 (“Vinter “) in the context of rehabilitation and reformation it was held by the European Court of Human Rights that, “Moreover, if such a person is incarcerated without any prospect of release and without the possibility of having his life sentence reviewed, there is the risk that he can never atone for his offence: whatever the prisoner does in prison, however exceptional his progress towards rehabilitation, his punishment remains fixed and unreviewable.” Learned senior counsel submitted that respondent No.13 had exhibited unblemished behaviour in prison and there was no criminality attached to his conduct in prison.
iv) Sri Luthra refuted the argument of the petitioners that in the light of the grievous nature of the offence, the convicts herein do not deserve remission. At the stage of remission, the length of sentence or the gravity of the original crime cannot be the sole basis for refusing premature release as held in Satish vs. State of UP, (2021) 14 SCC 580 (“Satish”). Therefore, any argument regarding the factual nature of the crime or the impact it had on society are not relevant for consideration of remission was the submission of Sri Luthra.
v) That it is open for the High Court as well as this Court to modify the punishment by providing for a specific period of incarceration without remission, considering the purported heinous nature of the offence but neither the High Court nor this Court chose to exercise the said power to incarcerate the private respondents herein for a duration which was non remittable. This shows that the aforesaid argument advanced by the petitioner is only a red herring.
vi) It was emphasized that an order of remission passed by an authority merely affects the execution of the sentence, without interfering with the sentence passed by the Court. Therefore, since the matter has already attained finality, it is not possible to question the validity of such an order on factual grounds alone, such as, the nature of crime, impact on society and society’s cry for justice.
vii) Learned senior counsel submitted that the mere fact that fine had not been paid or that there was a default in payment of the fine imposed does not impact the exercise of the power of remission. The sentence is something which an offender must undergo unless it is set aside or remitted in part or in whole either in appeal, or in revision, or in other appropriate judicial proceedings or ‘otherwise’, whereas, a term of imprisonment ordered in default of payment of fine stands on a different footing vide Shantilal; Abdul Gani vs. State of Madhya Pradesh, (1950) SCC OnLine MP 119 (“Abdul Gani”) and Shahejadkham Mahebubkham Pathan vs. State of Gujarat, (2013) 1 SCC 570 (“Shahejadkham Mahebubkham Pathan”). Further, reliance was placed on Sharad Kolambe, wherein it was observed by this Court that, “If the term of imprisonment in default of payment of fine is a penalty which a person incurs on account of non-payment of fine and is not a sentence in strict sense, imposition of such default sentence is completely different and qualitatively distinct from a substantive sentence.”
Points for consideration
- Having heard learned senior counsel and learned counsel for the respective petitioners as well as learned ASG, learned senior counsel and learned counsel for the respondents, the following points would arise for our consideration:-
1) Whether the petition filed by one of the victims in Writ Petition (Crl.) No.491 of 2022 under Article 32 of the Constitution is maintainable?
2) Whether the writ petitions filed as Public Interest Litigation (PIL) assailing the impugned orders of remission dated 10.08.2022 are maintainable?
3) Whether the Government of the State of Gujarat was competent to pass the impugned orders of remission?
4) Whether the impugned orders of remission passed by the respondent-State of Gujarat in favour of respondent Nos.3 to 13 are in accordance with law?
5) What Order? The aforesaid points shall be considered in seriatim.
A detailed narration of facts and contentions would not call for reiteration at this stage.
Analysing point no.1
Re: Point No.1: “Whether the petition filed by one of the victims in Writ Petition (Crl.) No.491 of 2022 under Article 32 of the Constitution is maintainable?”
Filing petition under Article 32 of the constitution is also a fundamental right
22.2. At the outset, we state that Article 32 of the Constitution is a part of Part-III of the Constitution of India which deals with Fundamental Rights. The right to file a petition under Article 32 of the Constitution is also a Fundamental Right. In the instant case, the petitioner – Bilkis Bano has filed her writ petition under Article 32 of the Constitution in order 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. We think that the aforesaid constitutional remedy is also to enforce the goals enshrined in the Preamble of the Constitution, which speak of justice, liberty, equality and fraternity. Bearing in mind the expanded notion of access to justice which also includes speedy remedy, we think that the petition filed by the petitioner in Writ Petition (Crl.) No.491 of 2022 cannot be dismissed on the ground of availability of an alternative remedy under Article of the Constitution or on the ground of its maintainability under Article 32 of the Constitution before this Court.
Earlier occasion Hon’ble Supreme court’s order was understood by the State Government of Gujarat as a direction or command to grant remission
22.3. There is another stronger reason as to why the said petitioner has approached this Court by filing a petition under Article 32 of the Constitution rather than invoking Article 226 of the Constitution before the High Court. That is because earlier, one of the respondents, namely, respondent No.3 Radheshyam Bhagwandas Shah had preferred Writ Petition (Crl.) No.135 of 2022 invoking Article 32 of the Constitution before this Court by 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. In fact, the respondent-State has understood the said direction as if it was a command or a direction to grant remission within a period of two months. But, before this Court in the said proceedings, one of the serious contentions raised by the State of Gujarat was that it was not the appropriate Government to grant remission which contention was negatived by the order dated 13.05.2022. In fact, that is one of the grounds raised by the petitioner victim to assail the orders of remission granted to respondent Nos.3 to 13. That being so, the High Court of Gujarat would not have been in a position to entertain the aforesaid Page 105 of 251 Writ Petition (Crl.) No.491 of 2022 Etc. contention in view of the categorical direction issued by this Court in Writ Petition (Crl.) No.491 of 2022 disposed on 13.05.2022. In the teeth of the aforesaid order of this Court, 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. Therefore, for this reason also the petitioner in Writ Petition (Crl.) No.135 of 2022 has, in our view, rightly approached this Court challenging the orders of remission. The contentions of learned Senior Counsel, Sri S. Guru Krishna Kumar and Sri Chidambaresh are hence, rejected. Thus, we hold that Writ Petition (Crl.) No.491 of 2022 filed under Article 32 of the Constitution is clearly maintainable.
Point no.2
Re: Point No.2: “Whether the writ petitions filed as Public Interest Litigation (PIL) assailing the impugned orders of remission dated 10.08.2022 are maintainable?”
Point no.2 left open for appropriate case
- Although, we have recorded the detailed submissions made on behalf of the respective parties, we do not think it is necessary to answer the point regarding maintainability of the PILs in this case inasmuch as one of the victims, namely, Bilkis Bano has also filed a writ petition invoking Article 32 of the Constitution assailing the orders of remission which we have held to be maintainable. The consideration of that petition on its merits would suffice in the instant case. Hence, we are of the view that the question of maintainability of the PILs challenging the orders of remission in the instant case would not call for an answer from us owing to the aforesaid reason. As a result, we hold that consideration of the point on the maintainability of the PILs has been rendered wholly academic and not requiring an answer in this case. Therefore, the question regarding maintainability of a PIL challenging orders of remission is kept open to be considered in any other appropriate case.
Regarding Remission: Scope & Ambit
Powers under Articles 72 and 161 are absolute and cannot be fettered by any statutory provision
30. Learned senior counsel Sri Sidharth Luthra, drew our attention to the principles covering grant of remission and distinguished it from concepts, such as commutation, pardon, and reprieve, with reference to a judgment of this Court in State (Govt. of NCT of Delhi) vs. Prem Raj, (2003) 7 SCC 121 (“Prem Raj”). Articles 72 and 161 deal with clemency powers of the President of India and the Governor of a State, and also include the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentences in certain cases. The power under Article 72 inter alia extends to all cases where the punishment or sentence is for an offence against any law relating to a matter to which the executive power of the Union extends and in all cases where the sentence is a sentence of death. Article 161 states that the Government of a State shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence against any law relating to a matter to which the executive power of the State extends. It was observed in the said judgment that the powers under Articles 72 and 161 of the Constitution of India are absolute and cannot be fettered by any statutory provision, such as, Sections 432, 433 or 433-A of the CrPC or by any prison rule.
Remission of sentence is not acquittal
30.2. Further, a remission of sentence does not mean acquittal and an aggrieved party has every right to vindicate himself or herself. In this context, reliance was placed on Sarat Chandra Rabha vs. Khagendranath Nath, AIR 1961 SC 334 (“Sarat Chandra Rabha”), wherein a Constitution Bench of this Court while distinguishing between a pardon and a remission observed that an order of remission does not wipe out the offence; it also does not wipe out the conviction. All that it does is to have an effect on the execution of the sentence; though ordinarily a convicted person would have to serve out the full sentence imposed by a court, he need not do so with respect to that part of the sentence which has been ordered to be remitted. An order of remission thus, does not in any way interfere with the order of the court; it affects only the execution of the sentence passed by the court and frees the convicted person from his liability to undergo the full term of imprisonment inflicted by the court even though the order of conviction and sentence passed by the court still stands as it is. The power to grant remission is an executive power and cannot have the effect which the order of an appellate or revisional court would have of reducing the sentence passed by the trial court and substituting in its place the reduced sentence adjudged by the appellate or revisional court. According to Weater’s Constitutional Law, to cut short a sentence by an act of clemency is an exercise of executive power which abridges the enforcement of the judgment but does not alter it qua the judgment.
Convicts have no constitutional right for obtaining remission
30.3. Reliance was placed on Mahender Singh, to urge that a right to be considered for remission, keeping in view the constitutional safeguards of a convict under Articles 20 and 21 of the Constitution of India, must be held to be a legal one. Such a legal right emanates from not only the Prisons Act but also from the Rules framed thereunder. Although no convict can be said to have any constitutional right for obtaining remission in his sentence, the policy decision itself must be held to have conferred a right to be considered therefor. Whether by reason of a statutory rule or otherwise if a policy decision has been laid down, the persons who come within the purview thereof are entitled to be treated equally, vide State of Mysore vs. H. Srinivasmurthy, (1976) 1 SCC 817 (“H. Srinivasmurthy”).
A circular or letter by State Government is not an order for remission
30.4. In Mahender Singh, this Court was considering the correctness of a judgment of the Punjab and Haryana High Court in which a circular/letter issued by the State of Haryana laying down criteria for premature release of the prisoners had been declared to be unconstitutional. In the above context, this Court considered the right of the convict to be considered for remission and not on what should be the criteria when the matter was taken up for grant thereof.
After considering the series of judgments relating to the ambit and scope of remission, Hon’ble Apex Court has now turned into procedural law.
Procedural law for remission of convicts
- Apart from the constitutional provisions, there are also provisions of the CrPC which deal with remission of convicts. Sections 432, 433, 433A and 435 of the CrPC are relevant and read as under:
“………………………………………”
Section 432 Cr.P.C – Analysis
32.1. Sub-section (1) of Section 432 is an enabling provision which states that when any person has been sentenced to punishment for an offence, the appropriate Government may, at any time, without conditions or upon any condition which the person sentenced accepts, suspend the execution of his sentence or remit the whole or any part of the punishment to which he has been sentenced. The pertinent provision involved in this case is sub-section (2) 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 or of such record thereof as exists. Sub-section (3) deals with cancellation of the suspension or remission in the event of there being any non-fulfilment of any condition imposed by the appropriate Government whereupon the person in whose favour the sentence has been suspended or remitted, may be arrested by the police officer, without warrant and remanded to undergo the unexpired portion of the sentence, if such a person is at large. Sub section (4) states that the condition on which a sentence is suspended or remitted under this section may be one to be fulfilled by the person in whose favour the sentence is suspended or remitted, or one independent of his will. The appropriate Government may, by general rules or special orders, give directions as to the suspension of sentences and the conditions on which petitions should be presented and dealt with vide sub-section (5) of Section 432 of the CrPC. The proviso to sub-section (5) states that in the case of any sentence (other than a sentence of fine) passed on a male person above the age of eighteen years, no such petition by the person sentenced or by any other person on his behalf shall be entertained, unless the person sentenced is in jail, and it is presented through the officer in-charge of the jail; or where such petition is made by any other person, it contains a declaration that the person sentenced is in jail. Sub-section (6) of Section 432 states that the provisions of this Section would apply to any order passed by a Criminal Court under any section of the CrPC or of any other law which restricts the liberty of any person or imposes any liability upon him or his property.
Appropriate government defined
32.2. The expression “appropriate Government” used in Section 432 as well as in Section 433, is defined in sub-section (7) of Section 432. It expresses that 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.
Section 433-A Cr.P.C
32.3. Section 433-A is a restriction on the powers of remission or commutation in certain cases. It begins with a non-obstante clause and states that notwithstanding anything contained in Section 432, where a sentence of imprisonment for life is imposed on conviction of a person for an offence for which death is one of the punishments provided by law, or where a sentence of death imposed on a person has been commuted under Section 433 into one of imprisonment for life, such person shall not be released from prison unless he had served at least fourteen years of imprisonment.
32.4. Section 434 states that the powers conferred by Sections 432 and 433 upon the State Government may in case of sentences of death also be exercised by the Central Government concurrently.
Point no.3 – Who is appropriate government?
Point No.3: Whether the Government of State of Gujarat was competent to pass the impugned orders of remission?
- The point for consideration revolves around the definition of the expression “appropriate Government”. In other words, whether the first respondent – State of Gujarat was competent to pass the orders of remission in the case of respondent Nos.3 to 13 herein is the question. The meaning and import of the expression “appropriate Government” has to be discerned from the judgments of this Court in the light of sub-section (7) of Section 432 of the CrPC.
Earlier order obtained by misleading
36.5 Thus, by suppressing material aspects and by misleading this Court, a direction was sought and issued to the respondent State of Gujarat to consider the premature release or remission of the writ petitioner, i.e., respondent No.3 on the basis of the policy dated 09.07.1992.
State of Gujarat has no jurisdiction to entertain the applications for remission
- Having regard to the above discussion and in light of the provisions of the CrPC, the judgments of this Court and our own understanding of the order dated 13.05.2022 passed by a coordinate Bench of this Court in Writ Petition No.135 of 2022, we hold as follows:
(i) that the Government of State of Gujarat (respondent No.1 herein) had no jurisdiction to entertain the applications for remission or pass the orders of remission on 10.08.2022 in favour of respondent No.3 to 13 herein as it was not the appropriate Government within the meaning of sub-section (7) of Section 432 of the CrPC;
(ii) that this Court’s order dated 13.05.2022 being vitiated and obtained by fraud 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.
48.8. At this juncture, it is relevant to refer to the following decisions of this Court, wherein orders of remission have been quashed and set aside by this Court on various grounds:
Swaran Singh vs. State of Uttar Pradesh, (1998) 4 SCC 75,
Joginder Singh vs. State of Punjab, (2001) 8 SCC 306
The remission order of State of Gujarat is nothing but the abuse of discretion and hence quashed
50.5. Instead, the State of Gujarat has acted in tandem and was complicit with what the petitioner-respondent No.3 herein had sought before this Court. This is exactly what this Court had apprehended at the previous stages of this case and had intervened on three earlier occasions in the interest of truth and justice by transferring the investigation of the case to the CBI and the trial to the Special Court at Mumbai. But, in our view, when no intervention was called for in the writ petition filed by one of the convicts /respondent No.3 herein, this Court was misled to issue directions contrary to law and on the basis of suppression and misstatements made by respondent No.3 herein. We have held that order of this Court dated 13.05.2022 to be a nullity and non est in the eye of law. Consequently, exercise of discretion by the State of Gujarat is nothing but an instance of usurpation of jurisdiction and an instance of abuse of discretion. If really State of Gujarat had in mind the provisions of law and the judgments of this Court, and had adhered to the rule of law, it would have filed a review petition before this Court by contending that it was not the appropriate Government. By failing to do so, not only are the earlier orders of this Court in the matter have been vindicated but more importantly, rule of law has been breached in usurping power not vested in it and thereby aiding respondent Nos.3 to 13. This is a classic case where the order of this Court dated 13.05.2022 has been used for violating the rule of law while passing orders of remission in favour of respondent Nos.3 to13 in the absence of any jurisdiction by respondents – State of Gujarat. Therefore, without going into the manner in which the power of remission has been exercised, we strike down the orders of remission on the ground of usurpation of powers by the State of Gujarat not vested in it. The orders of remission are hence quashed on this ground also.
Since the State Government of Gujarat is not appropriate government the proceedings of jail advisory committee has no value
- As we have held, in the first place, the first respondent State of Gujarat was not at all the appropriate Government, therefore, the proceedings of the Jail Advisory Committee of Dahod Jail, which had recommended remission is itself vitiated and further, there is no compliance of sub-section (2) of Section 432 of the CrPC in the instant case in as much as the said opinion was not considered by the appropriate Government. On that score also, the orders of remission dated 10.08.2022 are vitiated.
Summary of Conclusions
- On the basis of the aforesaid discussion, we arrive at the following summary of conclusions:
a) We hold that the Writ Petition (Crl.) No.491 of 2022 filed under Article 32 of the Constitution before this Court is maintainable and that it was not mandatory for the petitioner therein to have filed a writ petition under Article 226 of the Constitution before the Gujarat High Court.
b) Since Writ Petition (Crl.) No.491 of 2022 has been filed by one of the victims invoking Article 32 of the Constitution before this Court which has been entertained by us, the question, whether, the writ petitions filed as public interest litigation assailing the impugned orders of remission dated 10.08.2022 are maintainable, is kept open to be raised in any other appropriate case.
c) In view of Section 432 (7) read with Section 432 (1) and (2) of the CrPC, we hold that the Government of the State of Gujarat had no jurisdiction to entertain the prayers seeking remission of respondent Nos.3 to 13 herein as it was not the appropriate Government within the meaning of the aforesaid provisions. Hence, the orders of remission dated 10.08.2022 made in favour of respondent Nos.3 to 13 herein are illegal, vitiated and therefore, quashed.
d) While holding as above, we also hold that the judgment dated 13.05.2022 passed by this Court is a nullity and is non est in law since the said order was sought by suppression of material facts as well as by misrepresentation of facts (suppressio veri, Page 238 of 251 Writ Petition (Crl.) No.491 of 2022 Etc. suggestio falsi) and therefore, fraudulently obtained at the hands of this Court.
Rule of law
- Before we proceed further, we wish to reiterate what this Court has spoken on the concept of rule of law through its various judgments. 62. Rule of law means wherever and whenever the State fails to perform its duties, the Court would step in to ensure that the rule of law prevails over the abuse of the process of law. Such abuse may result from, inter alia, inaction or even arbitrary action of protecting the true offenders or failure by different authorities in discharging statutory or other obligations in consonance with the procedural and penal statutes. Breach of the rule of law, amounts to negation of equality under Article 14 of the Constitution.
-
More importantly, rule of law means, no one, howsoever high or low, is above the law; it is the basic rule of governance and democratic polity. It is only through the courts that rule of law unfolds its contours and establishes its concept. The concept of rule of law is closely intertwined with adjudication by courts of law and also with the consequences of decisions taken by courts. Therefore, the judiciary has to carry out its obligations effectively and true to the spirit with which it is sacredly entrusted the task and always in favour of rule of law. There can be no rule of law if there is no equality before the law; and rule of law and equality before the law would be empty words if their violation is not a matter of judicial scrutiny or judicial review and relief and all these features would lose their significance if the courts don’t step in to enforce the rule of law. Thus, the judiciary is the guardian of the rule of law and the central pillar of a democratic State. Therefore, the judiciary has to perform its duties and function effectively and remain true to the spirit with which they are sacredly entrusted to it.
Conclusion
- Consequently, we pass the following orders:
a. Writ Petition (Crl.) No.491 of 2022 is allowed in the aforesaid terms.
b. Other Writ Petitions stand disposed of.
c. Pending applications, if any, stand disposed of.
- Before parting, we place on record our appreciation of all learned senior counsel, learned ASG and learned counsel appearing for the respective parties for their effective assistance in the matter.
Parties
BILKIS YAKUB RASOOL …PETITIONER vs. UNION OF INDIA & OTHERS …RESPONDENTS – WRIT PETITION (CRL.) NO.491 OF 2022 – January 08, 2024 – 2024 INSC 24
https://main.sci.gov.in/supremecourt/2022/38741/38741_2022_12_1501_49383_Judgement_08-Jan-2024.pdf
Bilkis bano case 38741_2022_12_1501_49383_Judgement_08-Jan-2024
