Bring files dealing with premature release of 11 perpetrators: SC to Gujarat government, MHA in the Bilkis Bano case

The bench has fixed the matter for hearing on April 18, and directed the Union and Gujarat governments to keep the files dealing with the premature release of the 11 convicts ready for the court's perusal.

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THE Supreme Court on Monday issued a notice to the Government of Gujarat, the Union government and the 11 convicts on a petition filed by gangrape survivor and victim of the 2002 Gujarat pogrom Bilkis Bano seeking to cancel the premature release granted to the 11 persons convicted for gangraping her, as well as raping and murdering her family members, by the Gujarat government in consultation with the Union Ministry of Home Affairs (MHA).

A division bench comprising Justices K.M. Joseph and B.V. Nagarathna also issued a notice on a fresh public interest litigation (PIL) challenging the decision of the Gujarat government to set the convicts free. The bench has fixed the hearing of the matter on April 18.

It directed the Union and Gujarat governments to keep the files dealing with the premature release of the 11 convicts ready for the court's perusal.

During the course of the hearing, the bench wondered whether the Gujarat government was an 'appropriate authority' under Section 432(7) of the Code of Criminal Procedure (CrPC), adding that if an authority had no jurisdiction, could it be clothed with jurisdiction by a court?

On May 13 last year, a division bench of Justices Ajay Rastogi and Vikram Nath had held that the application for remission of the 11 convicts shall be considered by the Gujarat government since the crimes they were convicted of in 2008 were committed in Gujarat and the case had been transferred to Maharashtra for the limited purpose of trial and disposal. It also directed the Gujarat government to consider the premature release applications of the convicts.

The Supreme Court's May judgment arose from a writ petition filed by one of the convicts, Radheshyam (alias Lala Vakil), seeking a direction to the Gujarat government to consider his application for premature release as per its July 1992 remission policy. Bano was not a party to this litigation.

After the release of the 11 convicts, Bano filed a review petition against the May 13 judgment, which was rejected by the Supreme Court in December last year without even giving her the opportunity to make oral submissions.

During the course of the hearing yesterday, Justice Joseph mentioned that the review petition had been dismissed. Advocate Shobha Gupta, for Bano, was quick to inform the bench that a curative petition against the May 13 judgment is under process. Arguing against the remission, Gupta submitted that while granting remission, the impact of the crime on society must be seen. She added that several persons, including minors, were killed and many were gangraped. Gupta also submitted that Bano was not heard while taking a decision to grant remission to the convicts.

Advocate Rishi Malhotra, for one of the convicts, contended that the petitioners could not challenge the order of the court under the court's writ jurisdiction. He was referring to the May 13, 2022 decision that led to the release of 11 convicts. Justice Joseph, however, said the petitions before him were not challenging the court order, but the decision of the state government granting remission. Justice Joseph termed the crime committed by the 11 convicts "horrendous".

Malhotra also questioned the locus of the PIL petitioners. He said that the PIL petitioners are total strangers to the criminal matter.

Senior advocate Sonia Mathur, appearing for another convict, requested for time to file a reply.

Justice Joseph also questioned the standards followed while granting remission. He said many convicts who are in jail for murder are not granted remission even after 14 years. According to him, the court needed to look into the discretionary aspect of allowing remission and what is the limitation of that power.

Senior advocate Kapil Sibal, assisted by advocate Aparna Bhat, for Marxist politician Subhasini Ali, who is one of the petitioners, argued that the order granting remission violated each of the parameters of discretion. Sibal pointed out the irony that the trial was shifted to Maharashtra from Gujarat because the court had no faith in the Gujarat police, and the same police now granted remission to the convicts.

Senior advocate Dr Abhishek Manu Singhvi, assisted by advocate Shadan Farasat, for politician and Parliamentarian Mahua Moitra, who is also one of the petitioners, argued that the trial judge who had convicted the 11 persons for gangrape and murder had said that no remission should be given to them. However, no weightage was given to his opinion by the state government. Dr Singhvi also highlighted the post-release conduct of the convicts by stating that Bano was facing death threats.

Advocate Vrinda Grover, for one of the petitioners, submitted that the presiding judge of the trial court, in his opinion, said that the convicts should not be given remission. So was opined by the Central Bureau of Investigation (CBI), which investigated this case. She added that the MHA had simply approved the remission without applying its mind. Grover also flagged how the state government ignored the fact that one of the convicts had a case of molestation against him, while he was on parole.

In October last year, the Gujarat government, in an affidavit filed at the Supreme Court, told the court that its decision to grant premature release to eleven convicts had the approval of the MHA.

The Superintendent of Police (SP), Special Crime Branch, CBI Mumbai, Nandkumar Nair had 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 the City Civil and Sessions Court, Greater Bombay, had also opposed the premature release of the convicts.

In his opinion, judge Yawalkar had 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 had 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 had opined.

Justifying its decision, the Gujarat government told the Supreme Court that the 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 its policy dated July 9, 1992, as directed by the Supreme Court, and not under the circular issued last year by the MHA as part of the celebration of 'Azadi Ka Amrit Mahotsav'.

On the contrary, the authorities within Gujarat, namely, the SP, Collector and district magistrate, jail superintendent, and advisory committee of the Home department favoured the release of the convicts. However, Radheshyam Bhagwanad, the SP of Dahod, Gujarat had objected to their release, the court was informed.

The Gujarat government has also questioned the locus of Ali, journalist and filmmaker Revati Laul, and activist and academic Prof. Roop Rekha Verma, who have challenged the premature release orders. It has claimed that as third parties, they are strangers, both under the provisions of the CrPC and 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 the 11 convicts by the Gujarat government in August last year sent shock waves across the country. Bano was 21 years old and pregnant when she was gangraped. The convicts had also gangraped four other family members of Bano, and then murdered them and three other family members of her, including her three year old daughter. The CBI, at 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 had convicted the accused persons guilty of offences under Sections 302 (punishment for murder), 376(2)(e) and (g) (committing rape when the woman is pregnant and gangrape— in the then unamended version of Section 376) read with Section 149 (unlawful assembly) of the Indian Penal Code, and awarded them rigorous imprisonment for life along with a fine.

In May 2017, a division bench of the Bombay High Court had 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.