Bilkis Bano case: Gujarat govt had no jurisdiction to consider convicts' application for early release, says SC (Lead)

New Delhi, Jan 8 (IANS) Setting aside the "stereotyped and cyclostyled" remission orders passed by the Gujarat government, the Supreme Court on Monday asked 11 gang-rape and murder convicts in Bilkis Bano case to surrender before the jail authorities concerned within a period of two weeks.

A bench of Justices B.V. Nagarathna and Ujjal Bhuyan said that the state of Maharashtra had the jurisdiction to consider the early release application filed by convicts as they were sentenced by a special court in Mumbai.

It held that the Gujarat government is not the appropriate government within the meaning of Section 432(7) of the Code of Criminal Procedure (CrPC) and the application filed by convicts seeking remission "had to be simply rejected by the State of Gujarat owing to lack of jurisdiction to consider them".

It said that the May 2022 order passed by the top court, asking the Gujarat government to consider the remission application filed by a convict, was obtained by a convict by suppressing material aspects and by misleading it.

"We hold that consequently the order dated 13.05.2022 passed by this court …. is hit by fraud and is a nullity and non est in the eye of law and therefore cannot be given effect to and hence, all proceedings pursuant to the said order are vitiated," the apex court said.

"We fail to understand as to, why, the state of Gujarat, first respondent herein, did not file a review petition….Had the state of Gujarat filed an application seeking review of the said (May 2022) order and impressed upon this court that it was not the 'appropriate government' but the state of Maharashtra was the 'appropriate government', ensuing litigation would not have arisen at all."

The Supreme Court held that its May 2022 order turned to be “a nullity and non est in the eye of law” due to suppression and misstatements made by a convict. Consequently, exercise of discretion by the state of Gujarat is nothing but an instance of usurpation of jurisdiction and an instance of abuse of discretion, the apex court added.

"We strike down the orders of remission on the ground of usurpation of powers by the State of Gujarat not vested in it. The orders of remission are hence quashed on this ground also."

Importantly, the top court held the writ petition filed by victim Bilkis Bano is maintainable where she had challenged the validity of Gujarat government's decision to prematurely release 11 convicts on August 15, 2022.

However, the Supreme Court said that it is not necessary to decide the question of maintainability of the public interest litigations (PILs) by CPI-M leader Subhashini Ali, Trinamool Congress leader Mahua Moitra, the National Federation of Indian Women, Asma Shafique Shaikh and others against the remission orders and is kept open to be considered in any other appropriate case.

"If ultimately rule of law is to prevail and the impugned orders of remission are set aside by us, then the natural consequences must follow," it said as it rejected plea for protection of liberty of convicts and ordered them to report to the jail authorities concerned within two weeks.

The apex court had, in 2004, ordered transfer of the case from Gujarat to Mumbai for trial and disposal. The Special Judge, Greater Mumbai in 2008 convicted the 11 accused and sentenced them to life imprisonment for the commission of various offences, including the gang rape of Bilkis Bano and murder of her family members during the 2002 post-Godhra riots.

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