The Supreme Court has set aside the remission Orders which led to the premature release of 11 convicts and also quashed the May 13, 2022 Order where the court held that the Gujarat government is the ‘appropriate government’ to consider premature release.
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TODAY, a Supreme Court division Bench of Justices B.V. Nagarathna and Ujjal Bhuyan quashed the remission Orders which led to the premature release of 11 convicts who gang-raped Bilkis Bano and murdered several of her family members during the 2002 Gujarat pogrom.
The court held that the ‘appropriate government’ to consider the remission of the convicts was the Maharashtra government and not the Gujarat government.
The court held that the definition of ‘appropriate government’ under Section 432(7) (power to suspend or remit sentences) of the Code of Criminal Procedure is the government of the state where the offender is tried and not where the offence occurred or where the convict is imprisoned.
Further, the court held that one of the convicts, Radheshyam Bhagwandas Shah alias Lala Vakil had suppressed facts when he came before the Supreme Court seeking premature release.
The court vitiated the Order of May 13, 2022 of the Supreme Court which held that the appropriate government to consider remission of Radheshyam is the Gujarat government on the ground of fraud.
Background
During the 2002 Gujarat pogrom, on March 3, 2002, a Hindutva mob barged into Bilkis Bano’s home in Randhikpur village near Ahmedabad, gang-raped her and murdered seven members of her family, including her three-year-old daughter. Bilkis was twenty-one years old and five months pregnant with her second child at the time.
A case was registered in 2003 at a local police. On March 25, 2003, the police filed a report citing inconsistencies in the testimonies and a lack of evidence. Eventually, the report was accepted by a magistrate and the case was closed.
Bano approached the National Human Rights Commission (NHRC) which was then led by former Chief Justice of India J.S. Verma and also comprised former Supreme Court judge Sujata Manohar. The NHRC intervened and ensured legal assistance to Bano. The NHRC approached the Supreme Court through senior advocate Harish Salve.
Salve urged the court for a fresh investigation by the Central Bureau of Investigation (CBI), and a transfer of the trial from Gujarat to Maharashtra.
In 2003, the Supreme Court transferred the investigation to the CBI and directed the trial to take place in Maharashtra to ensure a free and impartial trial.
Eleven persons were convicted of raping Bano by a CBI court in Mumbai in 2008 for the offences of murder (Section 302), gang-rape and rape of a pregnant woman under (Section 376(2)(e)(g) read with Section 149 of the Indian Penal Code). They were awarded rigorous imprisonment for life, along with a fine.
In 2019, the Bombay High Court upheld the conviction and sentencing. Subsequently, in 2019, the Supreme Court upheld the decision of the high court and awarded a compensation of ₹50 lakh to Bano.
However, they were granted remission by the Gujarat government for their ‘good behaviour’ under the 1992 Gujarat remission policy after serving fourteen years in jail. They were given a premature release during the Azadi ka Amrit Mahotsav on August 11, 2022.
This decision was approved by the Union Ministry of Home Affairs.
The remission led to public outcry. Bano filed a petition challenging the premature release. Several members of civil society, including journalists, academics and politicians also filed petitions challenging the remission.
On March 22, 2023, the Supreme Court constituted a special Bench to hear Bano’s challenge. The Bench comprising Justices B.V. Nagarathna and Ujjal Bhuyan heard the matter in detail and reserved the judgment on October 12.
How was the remission granted?
The remission was granted based on the May 13, 2022 decision of the Supreme Court.
In this case, one of the convicts, Radheshyam, approached the court seeking directions to the Gujarat government to consider his application for remission under the remission policy of the state government dated July 9, 1992.
The 1992 policy has been replaced by a 2014 policy. The 2014 policy explicitly bars remission for those convicted of rape and murder.
According to his writ petition, the 1992 remission policy must be applicable for considering his plea for premature release and not the 2014 policy.
However, the petitioner did not disclose that he was convicted in connection to the Gujarat riots nor did he make Bano a party to his petition.
In 2019, the Gujarat High Court heard his plea for premature release. Radheshyam had undergone a sentence of more than fifteen years and four months without remission.
On July 17, 2019, the high court dismissed his petition relying on the decision of the Supreme Court Constitution Bench in Union of India versus V. Sriharan alias Murugan and Others (2016). It held that since the trial was concluded in Maharashtra, the application for pre-mature release has to be filed in Maharashtra and not Gujarat.
The Supreme Court Bench of Justices Ajay Rastogi and Vikram Nath quashed the high court’s Order and held that the ‘appropriate government’ under Section 432(7) of CrPC in the ordinary course remains the government of Gujarat even though the case had been transferred to Maharashtra.
The court reasoned that the case was transferred in exceptional circumstances and only for the limited purpose of trial. After the trial was concluded, the case was transferred to Gujarat where the crime was committed. It relied on its judgment in State of Haryana versus Jagdish (2010).
