Bilkis Bano Case | Judgment Directing Gujarat Govt To Decide Remission Was Obtained By Fraud; It's Also Bad In Law : Supreme Court

The Supreme Court on Monday (January 8), while setting aside the premature release of eleven life convicts in the Bilkis Bano case, declared its May 2022 judgement - which directed the Gujarat Government to consider the remission applications of the convicts- as a nullity since the petitioner (one of the convicts) was found to have "played fraud" by suppressing material facts and making misleading statements.The May 2022 judgment delivered by a bench comprising Justices Ajay Rastogi and Vikram Nath, which held that the government of the State where the offence took place had the jurisdiction to decide the remission, was also found to be per incuriam (bad in law) for ignoring precedents and the statutory mandate.In the judgment pronounced today, the bench of Justices BV Nagarathna and Ujjal Bhuyan noted that the May 2022 direction was issued in a writ petition filed by one of the convicts, Radheshyam Shah, who had suppressed material facts like an earlier decision of the Gujarat High Court and the opinion of the presiding judge and made misleading statements. During the hearing that spanned several months, the two-judge bench was informed that Shah had first approached the Gujarat High Court for a direction to the State of Gujarat to consider his remission plea. The high court had disposed of his petition by observing that he should approach the appropriate government, i.e., the State of Maharashtra. A second application was also dismissed by the Gujarat High Court.When Shah invoked the writ jurisdiction of the Supreme Court under Article 32 of the Constitution two years ago, he not only failed to mention the Gujarat High Court's orders relating to his remission plea, but also did not disclose his application before the Maharashtra government, the negative opinions by the Central Bureau of Investigation to which the investigation had been transferred and the Mumbai special court that had handed out the convictions and sentences, and Dahod police superintendent's and district judge's adverse opinion on the question of remission. The convict, to persuade the bench led by the now-retired Justice Ajay Rastogi to rule in his favour, had also made a 'misleading statement' that a divergence of opinion between the Bombay and Gujarat high courts had necessitated his writ petition. The Bombay High Court's order, passed in 2013, dealt only with the transfer of the convicts in the Maharashtra jail to their parent state, i.e., the State of Gujarat. "In 2013, the issue of remission had not arisen at all. But the writ petitioner projected as if the two high courts had contracted themselves in their orders and therefore, he was constrained to file a writ petition invoking the jurisdiction of this court under Article 32 of the Constitution," the petitioners challenging the remission orders had submitted. Accepting this contention, the bench today held -"The pleadings in the writ petition did not indicate that the State of Gujarat had no jurisdiction to consider his application for remission. There was no pleading that he had filed an application before the Government of Gujarat. Thirdly, there is no mention that the 1992 remission policy had been cancelled. Moreover, the policy was not at all applicable since the writ petitioner was convicted in Maharashtra and therefore, Gujarat government was not the appropriate government. On this basis, this court passed the order on May 13, 2022...If he had felt aggrieved by the order of the Gujarat High Court, it was open to him to have challenged it before this court by filing a special leave petition, but he did not do so. Rather, he complied with the order of the Gujarat High Court by filing a remission application before the Government of Maharashtra where, not only the process for consideration of the remission prayer was initiated, but opinions of various authorities were also obtained. When the opinions were found to be negative, [the convict] filed a writ petition before this court seeking a direction to the State of Gujarat to consider his remission application suppressing the above material facts. This he could not have done, thereby misrepresenting and suppressing relevant facts, thus playing fraud on this Court."Neither the 2019 order of the Gujarat High Court could have been challenged in a writ petition invoking Article 32 of the Constitution, nor could it have been set aside in writ proceedings, the Supreme Court clarified, pointing to the decision of a nine-judge bench in Naresh Shridhar Mirajkar (1967). The writ proceedings and the order obtained as a result of that, the court concluded, was pursuant to suppression of material facts and misleading statements. The petitioner-convict being guilty of suppressio veri suggestio falsi, the May 2022 order was a 'nullity' and 'non-est' in the eyes of law. Referring to a catena of Supreme Court judgments on the consequences of fraudulent conduct by parties in judicial proceedings, the bench held -"We hold that consequently the ...

Bilkis Bano Case | Judgment Directing Gujarat Govt To Decide Remission Was Obtained By Fraud; It's Also Bad In Law : Supreme Court

Awstika Das

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