Bilkis Bano Case : Supreme Court Erred In Holding That Gujarat Govt Has Power To Decide Remission - Sr Adv Rebecca John

Criminal law expert Rebecca M John, Senior Advocate, opined that the Supreme Court erred in holding that the State of Gujarat has the jurisdiction to decide the remission of sentence of 11 convicts in the Bilkis Bano case.Speaking in an interview with LiveLaw, John said that as per Section 432(7) of the Code of Criminal Procedure, it is the State where the trial was held and where the sentence was passed which will have the jurisdiction to consider the applications for remission. She explained that this position has been reiterated in several Supreme Court judgments, including the 2015 Constitution Bench judgment in the case Union of India versus V Sriharan @ Murugan.Since the trial of the Bilkis Bano case was transferred to the State of Maharashtra by the Supreme Court, and the sentence was passed by a Sessions Court at Mumbai, the Maharashtra Government is the "appropriate government" to consider the remission of sentence and not the Gujarat Government. The text of the statute is very clear in this regard, as Section 432(7) says "appropriate government" is "the Government of the State within which the offender is sentenced or the said order is passed".In May 2022, while allowing a petition filed by one of the convicts in the Bilkis Bano case, a two-judge bench of the Supreme Court ruled in the case Radheshyam Bhagwandas Shah @ Lala Vakil vs State of Gujarat that the remission application has to be decided by the Gujarat Government as the offence took place in the State of Gujarat. Earlier, the Gujarat High Court, relying on V Sriharan judgment, had dismissed the convict's petition by holding that remission has to be decided by the Maharashtra Government. The Supreme Court refused to accept the High Court's view. It said that the case was transferred to Maharashtra due to "exceptional circumstances" for the "limited purpose of trial". The trial would have taken place ordinarily in Gujarat and since the convicts were shifted to a jail in Gujarat after the trial, the Gujarat Government will have the jurisdiction.The exact passage from the judgment delivered by a bench comprising Justices Ajay Rastogi and Vikram Nath is as follows :"In our considered view, the submission made by learned counsel for the respondents is not sustainable for the reason that the crime in the instant case was admittedly committed in the State of Gujarat and ordinarily, the trial was to be concluded in the same State and in terms of Section 432(7) CrPC, the appropriate Government in the ordinary course would be the State of Gujarat but the instant case was transferred in exceptional circumstances by this Court for limited purpose for trial and disposal to the neighbouring State (State of Maharashtra) by an order dated 06th August, 2004 but after the conclusion of trial and the prisoner being convicted, stood transferred to the State where the crime was committed remain the appropriate Government for the purpose of Section 432(7) CrPC".Supreme Court misread the lawJohn said that the Supreme Court's view is based on a "misreading of the law"."I am in respectful disagreement with this portion of the Supreme Court judgment and I believe a review must be filed", she said. She pointed out that in the almost concurring judgment of Justice Lalit in Sriharan case (Justice Lalit dissented from the majority on certain other aspects), this very same issue was discussed. She read out the relevant portion as follows :"As regards definition of appropriate Government, Section 432(7) of Cr.P.C. adopts a slightly different approach. It defines Central Government to be the appropriate Government in cases where the sentence is for an offence against any law relating to a matter to which the executive power of the Union extends. In that sense it goes by the same principle as in Article 73 of the Constitution and Section 55A of the IPC. The residuary area is then left for the State Government and it further states that in cases other than those where the Central Government is an appropriate Government, the Government of the State within which the offender is sentenced shall be the appropriate Government. In other words, it carries the same essence and is not in any way different from the principle in Article 73 read with Article 162 on one hand and Section 55A of the IPC on the other. The specification as to the State where the offender is sentenced serves an entirely different purpose and helps in finding amongst more than one State Governments which is the appropriate Government as found in State of Madhya Pradesh v. Ratan Singh and others, State of Madhya Pradesh v. Ajit Singh and others, Hanumant Dass v. Vinay Kumar and others and Govt. of A.P. and others v. M.T. Khan. According to this provision, even if an offence is committed in State A but if the trial takes place and the sentence is passed in State B, it is the latter State which shall be the appropriate Government".(Emphasis supplied, Paragraph 23 of Justice Lalit's judgment in Sriharan case)She ...

Bilkis Bano Case : Supreme Court Erred In Holding That Gujarat Govt Has Power To Decide Remission - Sr Adv Rebecca John

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Bilkis Bano Case : Supreme Court Erred In Holding That Gujarat Govt Has Power To Decide Remission - Sr Adv Rebecca John

Manu Sebastian

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