Supreme Court's View That Gujarat Govt Should Consider Remission Is Against CrPC & Precedents : Bilkis Bano's Review Petition

Bilkis Bano has approached the Supreme Court of India in a writ petition challenging the premature release of the 11 convicts sentenced to life for gang rape and murder during 2002 Gujarat Riots. Bano has also sought a review petition against the Supreme Court's judgment allowing the Gujarat Government to make a decision on the remission of the convicts. This article details the grounds on which the petition has challenged the remission.

Bilkis points out that the Supreme Court's direction to the Gujarat Government to consider the remission application was passed in a writ petition filed by one convict Radheshyam Bhagwandas Shah. The judgment of the Gujarat High Court, which rejected the remission plea on the ground that it had to be presented before the Government of Maharahstra, was not challenged in a special leave petition. However, the Supreme Court considered the matter as if the High Court's judgment was under challenge. Since a judgment of a High Court cannot be challenged in a writ petition filed under Article 32, the Top Court's judgment dated May 13, 2022 suffers from an error apparent on record, argues the review petition filed through Advocate Shobha Gupta.

As per the review petition, the convict, in his writ petition, failed to disclose the nature of the crime for which the sentence was passed.  This was done with an intention to mislead the court in order to receive a favourable order. The convict "cleverly concealed" the name of prosecutrix Bilkis Bano, which is till date considered a synonym to the brutality of Gujarat Riots. This was intentional and misleading. The petition further adds that the application of the convicts for remission concealed the fact that the Gujarat High Court had dismissed their remission application with a specific observation that the appropriate government to exercise the powers of remission would be the State of Maharashtra and not the State of Gujarat.

Had the convict disclosed all the facts in his writ petition, there would have been no occasion for the order dated 13.05.2022 to be passed by the Supreme Court.

The review petition further states that the Supreme Court's view that Gujarat Government is the "appropriate government" to consider the remission is contrary to Section  432(7)(b) of CrPC, which states that the the Government of the State within which the offender is sentenced has to consider the remission as well. As per the clear language of the statute, the State of Maharashtra, where the trial was held, has to consider the remission plea. This principle has been laid down in precedents including the Constitution Bench judgment in V. Sriharan vs. UOI [2016 (7) SCC 1. Therefore, the review petition argues that the judgment dated May 13, 2022 is "per incuriam".

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The petition also states that the prosecutrix Bilkis Bano was not even made party respondent in the remission case and thus, she had absolutely no information of the filing or pendency of the writ petition seeking remission till the convicts were prematurely released on 15.08.2022. 

Therefore, Bano has filed a review petition alongwith an application seeking the listing of the Review Petition in an open court for hearing on merit alongwith the writ petition challenging the remission orders granting premature release to all 11 convicts.

In May 2022, a bench led by Justice Rastogi had ruled that the Gujarat Government had the jurisdiction to consider the remission request as the offence took place in Gujarat. The Gujarat High Court had earlier held the remission had to be considered by the State of Maharashtra, as the trial was held in Mumbai, upon transfer from Gujarat.

Later, on August 15, 2022, all the eleven convicts were released. Visuals of the released convicts getting heroic welcome became viral in social media, leading to outcry among several sections. In this background, a bunch of PILs were filed in the Supreme Court questioning the relief granted to the convicts. CPI(M) leader Subhashini Ali, journalist Revati Laul, TMC MP Mahua Moitra, former IPS office Meeran Chadha Borwankar and few other former civil servants, National Federation of Indian Women etc.,were some of the petitioners.

Responding to the petitions, the Gujarat Government has told the Supreme Court in an affidavit that the decision was taken after the approval of the Central Government, considering the good behaviour of the convicts and the completion of 14 years sentence by them. The State's affidavit revealed that the CBI and the Presiding Judge of the Trial Court (Special CBI Court at Mumbai) objected to the release of the convicts on the ground that the offence was grave and heinous. The annexures in the State's affidavit further showed that one of the convicts was booked for sexual harassment of a woman while he was out on parole in 2020.

Now, the victim of the crime herself has approached the Court questioning the decision to release the convicts.