It is now clear that the state government overruled the senior police official with the CBI and a CBI special judge, Mumbai who had opposed the premature release.
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THE Gujarat Government has told the Supreme Court that its decision to grant premature release to eleven convicts who gang-raped Bilkis Bano, had the approval of the Union Home Ministry. An affidavit filed to this effect reveals that the MHA on July 11 this year had accorded its concurrence to the Gujarat Governemnt under Section 435 of the Code of Criminal Procedure (CrPC). Since the CBI investigated this case, the law required the concurrence of the Union Government to grant premature release or remission.
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In contrast, the Superintendent of Police(SP), Special Crime Branch Central Bureau of Investigation(CBI), Mumbai Nandkumar Nair, opposed the grant of premature release calling the crime committed by the convicts as heinous, serious, and grave. Anand L. Yawalkar, the Special Judge(CBI) at City Civil& Sessions Court, Gr. Bombay also opposed the premature release of the convicts.
In his opinion, Judge Yawalkar said that in this case, all convicted accused were found guilty of rape and murder of innocent people. Besides, the accused had no enmity or any relation with the victim, he said. 'The crime was committed only on the ground that the victims belong to a particular religion… even minor children and a pregnant woman were not spared. This is the worst form of hate crime and crime against humanity', Judge Yawalkar opined.
Justifying its decision, the Gujarat Government told the Supreme Court that convicts were released on account of good behaviour after spending 14 years in jail. It also stated that the government had taken the decision as per the policy dated July 9, 1992, as directed by the Supreme Court, and not under the circular issued by the MHA as part of the celebration of 'Azadi Ka Amrit Mahotsav'.
On the contrary, the authorities within Gujarat, namely, the Superintendent of Police, Collector and district magistrate, Jail Superintendent, Advisory Committee, Home Department favored the release of the convicts. However, with regard to Radheshyam Bhagwanad, the SP of Dahod, Gujarat objected.
The Gujarat government has also questioned the locus of Subhashini Ali, a member of the CPI(M) Politburo, Revati Laul, a journalist, and Prof. Roop Rekha Verma who have challenged the premature release orders. It claimed that as third parties, they are strangers both under the provisions of the code or under any other statute, and they are precluded from questioning the correctness of grant or refusal of sanction for prosecution or the conviction and sentence imposed by the court after a regular trial. Similarly, a third party is precluded from questioning a remission order passed by the state government which is strictly in accordance with the law, the state government added.
The premature release of 11 convicts in the Bilkis Bano case by the Gujarat Government had sent shock waves across the country. Bilkis is a victim of the 2002 Gujarat pogrom. She was 21 years old and pregnant when she was gang raped. She lost all the members of her family in the communal carnage. Her three-and-a-half-year-old daughter was butchered to death before her eyes. The Central Bureau of Investigation (CBI), on the direction of the Supreme Court, investigated the matter, and the trial was held in Maharashtra on the directions of the Supreme Court to ensure impartial investigation and fair trial.
In 2008, the Mumbai Session court convicted the accused persons guilty of offence under Section 302, 376(2)(e)(g) read with Section 149 of the Indian Penal Code (IPC), and awarded them rigorous imprisonment for life and fine. In May 2017, a division bench of the Bombay High Court upheld the conviction and sentence awarded by the trial court. The findings recorded by the trial court as well as the Bombay High Court were also upheld by the Supreme Court.