Brief Facts
- In 2002, Bano, who was 21 years old and five months pregnant, was gang-raped in the Dahod district of Gujarat during the post-Godhra communal riots. Seven of her family members, including her three-year-old daughter were also killed by rioters. In 2008, after the trial was transferred to Maharashtra, a Sessions Court in Mumbai, convicted the accused under Sections 302 and 376(2)(e)(g) read with Section 149 of the Indian Penal Code, 1860 and sentenced them to life imprisonment. In 2017, the Bombay High Court upheld the conviction and life imprisonment of the 11 convicts
- After spending 15 years in jail, one of the convicts, Radheshyam Shah approached the Gujarat High Court seeking remission of his sentence. However, the High Court rejected his plea on the ground of the lack of jurisdiction. When the matter moved in appeal to the Apex Court, the Court held that the remission application had to be decided by the Gujarat Government as the offence took place in the state. Accordingly, under the remission policy the convicts were released by the State Government in 2022.
- Aggrieved by this decision, Petition Bilkis Bano approached the Supreme Court challenging the premature release of the 11 convicts.
Issues
- 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?
- Whether the writ petitions filed as Public Interest Litigation (PIL) assailing the impugned orders of remission dated 10.08.2022 are maintainable?
- Whether the Government of State of Gujarat was competent to pass the impugned orders of remission?
- 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?
Held
- The Supreme Court quashed the remission of 11 convicts and held that the State of Gujarat was not the appropriate government to decide the issue of remission as the trial was held in the State of Maharashtra. Accordingly, the court directed the convicts, who were given premature release in August 2022, to surrender in prison within two weeks.
- We however would like to indicate the factors that must be taken into account while entertaining an application for remission under the provisions of the CrPC, which are however not exhaustive of the tests which we have discussed above. They can be adumbrated as under:(a) The application for remission under Section 432 of the CrPC could be only before the Government of the State within whose territorial jurisdiction the applicant was convicted (appropriate Government) and not before any other Government within whose territorial jurisdiction the applicant may have been transferred on conviction or where the offence has occurred.
(b) A consideration for remission must be by way of an application under Section 432 of the CrPC which has to be made by the convict or on his behalf. In the first instance whether there is compliance of Section 433A 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.
(c) The guidelines under Section 432(2) with regard to the opinion to be sought from the Presiding Judge of the Court which had convicted the applicant must be complied with mandatorily. While doing so it is necessary to follow the requirements of the said Section which are highlighted by us, namely, : –
(i) the opinion must state as to whether the application for remission should be granted or refused and for either of the said opinions, the reasons must be stated;
(ii) the reasons must have a bearing on the facts and circumstances of the case;
(iii) the opinion must have a nexus to the record of the trial or of such record thereof as exists;
(iv) the Presiding Judge of the Court before or by which the conviction was had or confirmed, must also forward along with the statement of such opinion granting or refusing remission, a certified copy of the record of the trial or of such record thereof as exists.
(d) 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. The policy of remission applicable at the time of the conviction could apply and only if for any reason, the said policy cannot be made applicable a more benevolent policy, if in vogue, could apply.
(e) While considering an application for remission, there cannot be any abuse of discretion. In this regard, it is necessary to bear in mind the following aspects as mentioned in Laxman Naskar, namely, : –
(i) Whether the offence is an individual act of crime without affecting the society at large?
(ii) Whether there is any chance of future recurrence of committing crime?
(iii) Whether the convict has lost his potentiality in committing crime?
(iv) Whether there is any fruitful purpose of confining this convict anymore?
(v) Socio-economic condition of the convict’s family.
(f) There has also to be consultation in accordance with Section 435 of the CrPC wherever the same is necessitated.
(g) The Jail Advisory Committee which has to consider the application for remission may not have the District Judge as a Member inasmuch as the District Judge, being a Judicial Officer may coincidently be the very judge who may have to render an opinion independently in terms of sub-section (2) of Section 432 of the CrPC.
(h) Reasons for grant or refusal of remission should be clearly delineated in the order by passing a speaking order.
(i) When an application for remission is granted under the provisions of the Constitution, the following among other tests may apply to consider its legality by way of judicial review of the same: –
(i)that the order has been passed without application of mind;
(ii) that the order is mala fide;
(iii) that the order has been passed on extraneous or wholly irrelevant considerations;
(iv) that relevant materials have been kept out of consideration;
(v) that the order suffers from arbitrariness.
Summary of Conclusion
- (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, suggestio falsi) and therefore, fraudulently obtained at the hands of this Court.
- i) Further, the petitioner in Writ Petition (Crl.) No.491 of 2022 not being a party to the said writ proceeding, the same is not binding on her and she is entitled in law to question the orders of remission dated 10.08.2022 from all angles including the correctness of the order dated 13.05.2022.
- ii) In addition to the above, the said order, being contrary to the larger bench decisions of this Court, (holding that it is the Government of the State within which the offender is sentenced which is the appropriate Government which can consider an application seeking remission of a sentence) is per incuriam and is not a binding precedent. Hence, the impugned orders of remission dated 10.08.2022 are quashed on the above grounds.
- (e) Without prejudice to the aforesaid conclusions, we further hold that the impugned orders of remission dated 10.08.2022 passed by the respondent-State of Gujarat in favour of respondent Nos.3 to 13 are not in accordance with law for the following reason:
- i) That the Government of the State of Gujarat had usurped the powers of the State of Maharashtra which only could have considered the applications seeking remission. Hence, the doctrine of usurpation of powers applies in the instant case.
- ii) Consequently, the Policy dated 09.07.1992 of the State of Gujarat was not applicable to the case of respondent Nos.3 to 13 herein.
- iii) That opinion of the Presiding Judge of the Court before which the conviction of respondent Nos.3 to 13 was made in the instant case i.e. Special Court, Mumbai (Maharashtra) was rendered ineffective by the Government of the State of Gujarat which in any case had no jurisdiction to entertain the plea for remission of respondent Nos.3 to 13 herein. The opinion of the Sessions Judge at Dahod was wholly without jurisdiction as the same was in breach of sub-section (2) of the Section 432 of the CrPC.
- iv) That while considering the applications seeking remission, the Jail Advisory Committee, Dahod and the other authorities had lost sight of the fact that respondent Nos.3 to 13 herein had not yet paid the fine ordered by the Special Court, Mumbai which had been confirmed by the Bombay High Court. Ignoring this relevant consideration also vitiated exercise of discretion in the instant case.
Relevant Paras
- 22, 27, 55, 56