DATE: 08.01.2024
COURT: Supreme Court of India
BENCH: Justice B.V. Nagarathna and Justice
Ujjal Bhuyan
FACTS:
On 28 February 2002, in the aftermath of
the Godhra train burning incident, Bilkis Yakub Rasool, who was five months
pregnant at the time, was subjected to brutal gang-rape by a mob during the
communal riots in Gujarat. Her mother and cousin were also gang-raped and
murdered, while 14 members of her family, including her three-year-old daughter
(whose head was smashed on a rock), two minor brothers, two minor sisters,
uncles, aunt, three cousins, and eight other minors (including a two-day-old
infant) were killed in the attack driven by communal hatred. An FIR was
registered on 4 March 2002 against unknown persons, but the local police filed
a closure report claiming the accused could not be traced, which was initially
accepted by the magistrate.
Aggrieved by the closure report and the
apparent failure of the state machinery, Bilkis Yakub Rasool approached the
Supreme Court. The Court directed reopening of the investigation and
transferred it to the Central Bureau of Investigation (CBI). The CBI filed a
chargesheet in April 2004 against 20 persons. On Bilkis’s further petition, the
Supreme Court transferred the trial from Gujarat to Mumbai for a fair hearing.
In January 2008, the Special CBI Court in Mumbai convicted 11 accused
(including the present respondents) of offences including gang-rape, murder,
and rioting, sentencing them to life imprisonment; one police officer was also
convicted for falsifying records. The Bombay High Court upheld the convictions
in 2013 (with minor modifications). In 2022, one of the convicts filed a
petition before the Supreme Court seeking a direction to the Gujarat government
to consider his premature release under the State’s 1992 remission policy.
Following the Supreme Court’s order dated 13 May 2022 directing Gujarat to
consider the application, the Gujarat government passed orders on 10 August
2022 granting remission to all 11 convicts, leading to their release on 15
August 2022. Aggrieved by this, Bilkis Yakub Rasool and other petitioners filed
writ petitions under Article 32 directly before the Supreme Court in 2022,
primarily challenging the legality of the remission orders. These petitions
formed the basis for the Court entertaining the matter.
ISSUES:
The issues centered on the maintainability
of the writ petitions under Article 32 (particularly the victim’s petition) and
the connected PILs challenging the Gujarat Government’s orders dated 10 August
2022 granting premature remission to the 11 convicts; whether the State of
Gujarat was the competent “appropriate Government” under Section 432(7) of the
CrPC to pass the remission orders, given that the trial and conviction had been
transferred to and concluded in Maharashtra; whether the impugned remission
orders were valid in law, especially regarding compliance with the mandatory
opinion of the Presiding Judge of the convicting court under Section 432(2)
CrPC, non-application of mind, and the applicability of the 1992 Gujarat
remission policy; and whether the Supreme Court’s earlier order dated 13 May
2022 (directing Gujarat to consider the remission applications) was vitiated by
fraud, suppression of material facts, and per incuriam.
JUDGEMENT WITH REASONING:
In its judgment dated 8 January 2024, the
Division Bench allowed the writ petition filed by the victim, quashed the remission
orders dated 10 August 2022 passed by the Government of Gujarat as illegal,
null and void, and declared the order dated 13 May 2022 a nullity. The Court
directed the 11 convicts to surrender before the concerned jail authorities
within two weeks to restore the status quo ante, holding that the Gujarat
Government had no jurisdiction to grant remission and that the orders were
obtained through suppression of material facts.
The Court’s reasoning rested primarily on
the statutory interpretation of “appropriate Government” under Section
432(7)(b) CrPC, which unambiguously means the Government of the State within
whose territorial jurisdiction the offender was sentenced. Since the trial was
transferred to Maharashtra by this Court’s order dated 6 August 2004 and the
conviction and sentencing occurred before the Special CBI Court in Mumbai on 21
January 2008, Maharashtra alone was the appropriate Government; Gujarat had no
jurisdiction whatsoever and its orders amounted to a usurpation of power. The
bench relied on the binding precedent in Union of India v. V. Sriharan
(2016) 7 SCC 1 to hold that there cannot be concurrent jurisdiction of two
States and that the place of commission of the offence is irrelevant once the
trial and sentence are in another State. Consequently, the entire remission
exercise was nullity ab initio.
The Court further held that the order dated
13 May 2022 was procured by the convict (respondent No. 3) through deliberate
suppression of material facts such as the negative opinions of the CBI, the
Special Judge Mumbai, and Gujarat authorities, the filing of remission
applications in Maharashtra, and the cancellation of the 1992 Gujarat policy and
amounted to fraud on the Court (suppressio veri, suggestio falsi). This
rendered the 13 May 2022 order per incuriam and non est in law. Even on merits,
the 10 August 2022 orders were vitiated by non-compliance with the mandatory
procedural safeguard under Section 432(2) CrPC (the opinion of the Presiding
Judge of the convicting court was ignored and an invalid opinion from the Dahod
Sessions Judge, who was also a member of the Jail Advisory Committee was relied
upon), non-application of mind, and mechanical, non-speaking orders that failed
to consider the gravity of the crime, victim impact, and public interest. The
bench emphasized that personal liberty under Article 21 cannot prevail over the
rule of law, and remission in heinous crimes requires strict adherence to
statutory safeguards to protect victims’ dignity and societal conscience
ANALYSIS:
The Supreme Court’s judgment in this
case stands as a powerful reaffirmation of the rule
of law and strict statutory
interpretation in the exercise of executive clemency
powers. By declaring the Gujarat Government’s 10 August 2022 remission orders
null and void, the Court corrected a serious jurisdictional error and exposed
how the 13 May 2022 order had been obtained through deliberate suppression of
material facts and fraud on the Court. It clarified that under Section
432(7)(b) CrPC, the “appropriate Government” is unequivocally the State where
the offender was sentenced in this case Maharashtra, rendering Gujarat’s action
a clear usurpation of power. The bench also underscored that remission in
heinous crimes, especially those involving communal violence and extreme
brutality against women and children, cannot be granted mechanically or without
rigorous adherence to procedural safeguards such as the mandatory opinion of
the Presiding Judge of the convicting court under Section 432(2) CrPC. This
verdict reinforces the principle that personal liberty of convicts cannot
override the dignity of the victim, societal conscience, and the sanctity of
judicial sentencing.
The ruling carries far-reaching
implications for criminal jurisprudence and remission policies across India. It
sets a strong precedent against arbitrary or politically motivated exercise of
remission powers, particularly when trials are transferred for fair
adjudication, and highlights the judiciary’s duty to review executive actions
when they suffer from illegality, non-application of mind, or violation of
natural justice. By directing the convicts to surrender and restoring the
status quo ante, the Court sent a clear message that no one, however
influential can circumvent statutory requirements through misrepresentation.
The judgment also revives faith in the protective role of the Supreme Court for
victims of grave human rights violations and emphasizes that remission is not a
right but a conditional executive discretion that must respect the gravity of
the offence, victim impact, and public interest. In doing so, it strengthens
accountability in the criminal justice system and deters future attempts to
misuse clemency mechanisms in sensitive cases involving communal hatred and
sexual violence.
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