BILKIS YAKUB RASOOL v. UNION OF INDIA & OTHERS

Citation: Writ Petition (Crl.) No. 491 of 2022

Court: Allahabad High Court (Lucknow Bench)

Bench: Bilkis Yakub Rasool

Case summary

Gujarat in the aftermath of the Godhra train burning incident - Challenge to: Ahmedabad transferred to the competent court in Mumbai - 11 accused convicted for offence of gangrape

Judgment text

SUPREME COURT OF INDIA Bilkis Yakub Rasool v. Union of India & Others Writ petition filed u [2024] 1 S. C. R. 743 : 2024 INSC 24 Bilkis Yakub Rasool v. Union of India & Others (Writ Petition (Crl. ) No. 491 of 2022) 08 January 2024 [B. V. Nagarathna* and Ujjal Bhuyan, JJ. ] Issue for Consideration Writ petition filed u/Art. 32 by one of the victims challenging the order of State of Gujarat granting remission and early release of 11 convicts held guilty in Bilkis Bano matter, if maintainable; writ petitions filed as Public Interest Litigation, assailing the impugned orders of remission dated 10. 08.

2022, if maintainable; Government of State of Gujarat, if competent to pass the impugned orders of remission in favour of convicts in Bilkis Bano case; Order of remission passed by the State of Gujarat in favour of convicts in Bilkis Bano case, if in accordance with law; and the 11 convicts having been granted liberty and released from imprisonment by virtue of the orders of remission which has been declared and quashed as wholly without jurisdiction and non est, should the convicts be sent back to prison. Headnotes Code of Criminal Procedure, 1973 - ss.

432, 433, 433A and 435 - Grant of remission - Bilkis Bano matter - Order of State of Gujarat granting remission and early release of 11 convicts held guilty of committing heinous crimes of gangrape, murder and rioting armed with deadly weapons during the large-scale riots in Gujarat in the aftermath of the Godhra train burning incident - Challenge to: Held: Government of State of Gujarat was not competent to pass the orders of remission in favour of the convicts as it was not the appropriate Government - State of Maharashtra, had the jurisdiction to consider the application for remission as the convicts were sentenced by the Special Court, Mumbai - Government of the State of Gujarat usurped the powers of the State of Maharashtra which only could have considered the applications seeking remission - Also the Remission Policy of 1992 of the State of Gujarat was not applicable to the convicts - Thus, the Orders of remission dated * Author 744 10. 08.

2022 not being in accordance with law is illegal, vitiated and thus, quashed - Also the judgment dated 13. 05. 2022 passed by this Court directing the State of Gujarat to consider the application for pre mature release is a nullity and is non est in law since the said order was fraudulently obtained at the hands of this Court, and the said order being contrary to the larger bench decisions of this Court, is per incuriam - Thus, the rule of law is to prevail - 11 convicts to report to the concerned jail authorities within the stipulated period. [Paras 56, 70] Constitution of India - Art. 32 - Bilkis Bano matter - Writ petition filed u/Art.

32 by one of the victims challenging the order of State of Gujarat granting remission and early release of 11 convicts held guilty of committing heinous crimes of gangrape, murder and rioting armed with deadly weapons during the large-scale riots in Gujarat in the aftermath of the Godhra train burning incident - Maintainability: Held: Writ Petition filed u/Art. 32 is clearly maintainable - It was not mandatory for the petitioner to have filed a writ petition u/ Art. 226 before the Gujarat High Court - Petitioner-Bilkis Bano filed writ petition u/Art. 32 to enforce her fundamental rights u/ Art. 21 and Art. 14 - Access to justice includes speedy remedy, the petition could not be dismissed on the ground of availability of an alternative remedy u/Art. 226 - Furthermore, in view of the submission regarding the State of Gujarat not being the competent State to consider the validity of the orders of remission in a petition filed u/Art.

226, particularly, when the question of competency was raised, could not have been dealt with by the Gujarat High Court on the principle of judicial propriety. [Paras 22. 2-22. 3, 56] Constitution of India - Art. 32 - Public interest litigation - Bilkis Bano matter - Writ petition filed as public interest litigation challenging the order of State of Gujarat granting remission in favour of convicts guilty of committing heinous crimes of gangrape, murder and rioting armed with deadly weapons during the large-scale riots in Gujarat in the aftermath of the Godhra train burning incident - Maintainability: Held: Writ petitions filed as public interest litigation assailing the impugned orders of remission dated 10. 08. 2022 are maintainable or not, is kept open to be raised in any other appropriate case - It is not necessary to answer the point regarding maintainability of the PILs inasmuch as one of the victims, also filed a writ petition Bilkis Yakub Rasool v.

Union of India & Others invoking Art. 32 assailing the orders of remission which has been held to be maintainable - Consideration of that petition on its merits would suffice in the instant case. [Paras 27, 56] Code of Criminal Procedure, 1973 - ss. 432, 433, 433A and 435 - Bilkis Bano matter - Grant of remission - Investigation transferred to CBI by this Court - Thereafter, trial of the case pending before the Sessions Judge, Dahod, Ahmedabad transferred to the competent court in Mumbai - 11 accused convicted for offence of gangrape and murder by Mumbai court which was upheld by the High Court and this Court - One of the victims, respondent no. 3 challenged the non-consideration of his application for premature release u/ss.

433 and 433A before the Gujarat High Court - High Court held that since the trial had taken place in the State of Maharashtra, the 'appropriate government' would be the State of Maharashtra and not the Government of Gujarat to grant remission - Application for remission moved before the Government of Maharashtra, who sought opinion of CBI and Special CBI court which opined against premature release in view of the remission policy, as also against other convicts remission applications - Thereafter, respondent no. 3 filed writ petition before this Court seeking direction to the State of Gujarat to consider his application for pre-mature release under its policy of 1992 - Issuance of direction by this Court by order dated 13. 05. 2022, to the State of Gujarat to consider the application for pre mature release in terms of the policy of 1992, being the appropriate government - Subsequently, the State of Gujarat issued orders dated 10. 08.

22 granting remission and early release of 11 convicts - Government of State of Gujarat, if competent to pass the impugned orders of remission: Held: When an authority does not have the jurisdiction to deal with a matter or it is not within the powers of the authority i. e. the State of Gujarat in the instant case, to be the appropriate Government to pass orders of remission u/s. 432 , the orders of remission would have no legs to stand - In view of s. 432 (7) read with s. 432 (1) and (2), the Government of State of Gujarat had no jurisdiction to entertain the applications for remission or pass the orders of remission on 10. 08. 2022 in favour of 11 convicts as it was not the appropriate Government within the meaning of the said provisions - It is the State of Maharashtra, which had the jurisdiction to consider the application for remission vis-à-vis 11 746 convicts as they were sentenced by the Special Court, Mumbai - Orders of remission dated 10. 08.

2022 made in favour of 11 convicts are illegal, vitiated and thus, quashed - Also the judgment dated 13. 05. 2022 passed by this Court is a nullity and is non est in law since the said order was sought by suppression of material facts as well as by misrepresentation of facts and thus, fraudulently obtained at the hands of this Court - Furthermore, the order dated 13. 05. 2022, being contrary to the larger bench decisions of this Court, (holding that it is the Government of the State within which the offender is sentenced which is the appropriate Government which can consider an application seeking remission of a sentence) is per incuriam and is not a binding precedent - Thus, the impugned orders of remission dated 10. 08. 2022 are quashed. [Paras 33. 8, 33. 9, 46, 56] Code of Criminal Procedure, 1973 - ss.

432, 433, 433A and 435 - Bilkis Bano matter - Investigation transferred to CBI by this Court - Thereafter, trial of the case pending before the Sessions Judge, Dahod, Ahmedabad transferred to the competent court in Mumbai - 11 accused convicted for offence of gangrape and murder by Mumbai court which was upheld by the High Court and this Court - One of the victims, respondent no. 3 challenged the non-consideration of his application for premature release u/ss. 433 and 433A before the Gujarat High Court - High Court held that since the trial had taken place in the State of Maharashtra, the 'appropriate government' would be the State of Maharashtra and not the Government of Gujarat to grant remission - Application for remission moved before the Government of Maharashtra, who sought opinion of CBI and Special CBI court which opined against premature release in view of the remission policy as also against other convicts remission applications - Thereafter, respondent no.

3 filed writ petition before this Court seeking direction to the State of Gujarat to consider his application for pre-mature release under its policy of 1992 - Issuance of direction by this Court by order dated 13. 05. 2022, to the State of Gujarat to consider the application for pre mature release in terms of the policy of 1992, being the appropriate government - Subsequently, the State of Gujarat issued orders dated 10. 08. 22 granting remission and early release of 11 convicts - Order of remission dated 10. 08. 2022 passed by the State of Gujarat in favour of convicts, if in accordance with law: Bilkis Yakub Rasool v. Union of India & Others Held: Order of remission dated 10. 08.

2022 passed by the State of Gujarat in favour of 11 convicts is not in accordance with law - Government of the State of Gujarat had usurped the powers of the State of Maharashtra which only could have considered the applications seeking remission - Hence, the doctrine of usurpation of powers applies - State of Gujarat never sought for the review of the order of this Court dated 13. 05. 2022 by bringing to the notice of this Court that it was contrary to s. 432(7) and judgments of this Court - Policy of 1992 of the State of Gujarat was not applicable to the case of 11 convicts - Opinion of the Presiding Judge of the Court before which the conviction of 11 convicts was madeSpecial Court, Mumbai (Maharashtra) was rendered ineffective by the Government of the State of Gujarat which in any case had no jurisdiction to entertain the plea for remission of convicts - Opinion of the Sessions Judge at Dahod was wholly without jurisdiction as the same was in breach of s.

432(2) - Furthermore, while considering the applications seeking remission, the Jail Advisory Committee, Dahod and the other authorities lost sight of the fact that 11 convicts had not yet paid the fine ordered by the Special Court, Mumbai which had been upheld by the Bombay High Court. [Paras 50. 4, 56] Code of Criminal Procedure, 1973 - s. 432(2) - Power to suspend or remit sentence - Application made to the appropriate Government for remission of a sentence - Requirement of the opinion of the Presiding Judge of the convicting court: Held: s.

432(2) states that when an application is made to the appropriate Government, inter alia, for remission of a sentence, the appropriate Government may require the Presiding Judge of the Court before or by which the conviction was had or confirmed, to state his opinion - The opinion must state as to, whether, the application should be granted or refused, together with his reasons for such opinion which must have bearing on the facts and circumstances of the case and be in tandem with the record of the trial or of such record thereof as exists; and also must forward with the statement of such opinion a certified copy of the record of the trial or of such record thereof as exists - Having regard to the requirements which the Presiding Judge must comply with while stating his opinion to the appropriate Government on an application for remission of sentence made by a convict, the expression "may" has to be interpreted as "shall" and as a mandatory requirement 748 u/s.

432 - Furthermore, it cannot be left to the whims and fancies of the appropriate Government either to seek or not to seek the opinion of the Presiding Judge or the Court before which the conviction had taken place. [Paras 51, 52. 2, 52.

3] Sentence/sentencing - Imprisonment undergone in default of payment of fine - Nature of: Held: Sentence of imprisonment awarded to a person for committing an offence is distinct than the imprisonment ordered to be undergone in default of payment of fine - Latter is not a substantive sentence for commission of the offence but is in the nature of penalty for default in payment of fine - On facts, while considering the applications for remission, the Jail Advisory Committee did not take into consideration whether the convicts had tendered the fine imposed by the Special Court and affirmed by the High Court as well as by this Court - Had the State of Gujarat considered the opinion from the Presiding Judge of the Court which had convicted, the accused, the aspect regarding non-payment of fine would have surfaced - In the absence of non-compliance with the direction to pay fine, there would be default sentence which would be in the nature of penalty - Question whether the default sentence or penalty had to be undergone by these respondents, was a crucial consideration at the time of recommending remission to the State Government by the Jail Advisory Committee - This aspect of the matter has also not been taken into consideration by the State Government while passing the impugned orders of remission.

[Paras 54. 3-54. 4] Constitution of India - Art. 32 - Bilkis Bano matter - Remission order by the State of Gujarat granting remission and early release of 11 convicts held guilty of committing heinous crimes of gangrape, murder and rioting armed with deadly weapons during the large-scale riots in Gujarat in the aftermath of the Godhra train burning incident - 11 convicts granted liberty and released from imprisonment by virtue of the orders - Said order has been declared and quashed as wholly without jurisdiction and non est - Effect of, on the beneficiaries of the remission order: Held: Rule of law means wherever and whenever the State fails to perform its duties, the Court would step in to ensure that the rule of law prevails over the abuse of the process of law - Such abuse may result from, inter alia, inaction or even arbitrary action Bilkis Yakub Rasool v.

Union of India & Others of protecting the true offenders or failure by different authorities in discharging statutory or other obligations in consonance with the procedural and penal statutes - Breach of the rule of law, amounts to negation of equality u/Art. 14 - On facts, convicts have been the beneficiaries of the orders passed by an incompetent authority inasmuch as the impugned orders are not passed by the appropriate Government within the meaning of s. 432 - Art. 142 cannot be invoked in favour of the convicts to allow them to remain out of jail as that would be an instance of this Court's imprimatur to ignore rule of law and instead aid persons who are beneficiaries of orders which are null and void and therefore non est in the eye of law - Furthermore, respondent No. 3 abused the process of law and the court in obtaining remission - Thus, in complying with the principles of rule of law which encompasses the principle of equal protection of law as enshrined in Art.

14, 'deprivation of liberty' vis-à-vis 11 convicts is justified in as much as the said respondents have erroneously and contrary to law been set at liberty - They were released pursuant to the impugned remission orders which have been quashed - Impugned orders of remission having been set aside, the natural consequences must follow - Thus, 11 convicts directed to report to the concerned jail authorities within the stipulated period. [Paras 62, 70] Code of Criminal Procedure, 1973 - ss. 432 and 433 - Expression 'appropriate government' - Meaning of - 'Appropriate government' when can assume power to grant remission: Held: Expression "appropriate Government" used in s. 432 as well as in s. 433, is defined in sub-section (7) of s. 432 - It clearly indicates that the Government of the State within which the offender is sentenced, is the appropriate Government to pass an order of remission - Expression "appropriate Government" also finds place in sub section (1) of s.

432 which states that when any person has been sentenced to punishment for an offence, the appropriate Government may, at any time, without conditions or upon any condition which the person sentenced accepts, suspend the execution of his sentence or remit the whole or any part of the punishment to which he has been sentenced - Sub-section (1) of s.

432 deals with a power vested with the appropriate Government which is an enabling power - Discretion vested with the appropriate Government has to be exercised judiciously in an appropriate case and not to abuse the same - However, when an application is made 750 to the appropriate Government for the suspension or remission of a sentence, the appropriate Government may seek the opinion of the Presiding Judge of the Court before or by which the conviction was had or confirmed and on considering the reasons for such opinion, may consider the application for remission - In almost all cases, the court before which the offender was sentenced is located within the territory of a State Government wherein the offence occurred and, therefore, in such a case, there can be no further doubt about the meaning of the expression appropriate Government - Even in a case where the trial has been transferred by this Court from a court of competent jurisdiction of a State to a court in another State, it is still the Government of the State within which the offender was sentenced which is the appropriate Government which has the jurisdiction as well as competency to pass an order of remission u/s.

432 - Thus, it is not the Government of the State within whose territory the offence occurred or the convict is imprisoned which can assume the power of remission. [Paras 32. 2, 33. 2, 33. 3, 33. 5, 33. 6] Code of Criminal Procedure, 1973 - ss. 432, 433, 433A and 435 - Power to grant remission on an application filed by the convict or on his behalf - Exercise of: Held: Is an exercise of discretion by the appropriate Government - Where there is exercise of legal power coupled with discretion by administrative authorities, the test is, whether, the authority concerned was acting within the scope of its powers - This would not only mean that the concerned authority and the appropriate Government had not only the jurisdiction and authority vested to exercise its powers but it exercised its powers in accordance with law i. e.

, not in an arbitrary or perverse manner without regard to the actual facts or unreasonably or which would lead to a conclusion in the mind of the Court that there has been an improper exercise of discretion - If there is improper exercise of discretion, it is an instance of an abuse of discretion - There can be abuse of discretion when the administrative order or exercise of discretion smacks of mala fides or when it is for any purpose based on irrelevant consideration by ignoring relevant consideration or it is due to a colourable exercise of power; it is unreasonable and there is absence of proportionality - There could also be an abuse of discretion where there is failure to apply discretion owing to mechanical exercise of power, non application of mind, acting under dictation or by seeking assistance or advice or there is any usurpation of power. [Para 49] Bilkis Yakub Rasool v. Union of India & Others Code of Criminal Procedure, 1973 - ss.

432, 433A - Application for remission under - Factors to be taken into account: Held: Application for remission u/s. 432 could be only before the Government of the State within whose territorial jurisdiction the applicant was convicted (appropriate Government) and not before any other Government within whose territorial jurisdiction the applicant may have been transferred on conviction or where the offence has occurred - Consideration for remission must be by way of an application u/s. 432 which has to be made by the convict or on his behalf - Whether there is compliance of s. 433A must be noted - Guidelines u/s.

432(2) with regard to the opinion to be sought from the Presiding Judge of the Court which had convicted the applicant must be complied with mandatorily - Policy of remission applicable would be the Policy of the State which is the appropriate Government and which has the jurisdiction to consider that application - Policy of remission applicable at the time of the conviction could apply and only if for any reason, the said policy cannot be made applicable a more benevolent policy, if in vogue, could apply - While considering an application for remission, there cannot be any abuse of discretion - Jail Advisory Committee which has to consider the application for remission may not have the District Judge as a Member inasmuch as the District Judge, being a Judicial Officer may coincidently be the very judge who may have to render an opinion independently in terms of s.

432(2) - Reasons for grant or refusal of remission should be clearly delineated in the order by passing a speaking order - Also, it is to be considered whether the order has been passed without application of mind; that the order is mala fide; that the order has been passed on extraneous or wholly irrelevant considerations; that relevant materials have been kept out of consideration; and that the order suffers from arbitrariness. [Para 55] Code of Criminal Procedure, 1973 - ss. 432, 433, 433A and 435 - Remission - Grant of - Abuse of discretion by administrative authorities - Usurpation of power arises when: Held: Usurpation of power arises when a particular discretion vested in a particular authority is exercised by some other authority in whom such power does not lie - In such a case, the question whether the authority which exercised discretion was competent to do so arises. [Para 50] 752 Code of Criminal Procedure, 1973 - ss.

432, 433, 433A and 435 - Remission - Scope and ambit of - Principles covering grant of remission - Distinction from the concepts of commutation, pardon and reprieve - Stated and discussed - Constitution of India - Arts 72 and 161. [Paras 30-32.

5] Rule of law - Meaning and concept of: Held: Rule of law means, no one, howsoever high or low, is above the law; it is the basic rule of governance and democratic polity - It is only through the courts that rule of law unfolds its contours and establishes its concept - Concept of rule of law is closely intertwined with adjudication by courts of law and also with the consequences of decisions taken by courts - Therefore, the judiciary has to carry out its obligations effectively and true to the spirit with which it is sacredly entrusted the task and always in favour of rule of law - There can be no rule of law if there is no equality before the law; and rule of law and equality before the law would be empty words if their violation is not a matter of judicial scrutiny or judicial review and relief and all these features would lose their significance if the courts don't step in to enforce the rule of law - Thus, the judiciary is the guardian of the rule of law and the central pillar of a democratic State - Judiciary has to perform its duties and function effectively and remain true to the spirit with which they are sacredly entrusted to it - This Court must be a beacon in upholding rule of law failing which it would give rise to an impression that this Court is not serious about rule of law and, therefore, all Courts in the country could apply it selectively and thereby lead to a situation where the judiciary is unmindful of rule of law - This would result in a dangerous state of affairs in our democracy and democratic polity - Therefore, it is the primary duty and the highest responsibility of this Court to correct arbitrary orders at the earliest and maintain the confidence of the litigant public in the purity of the fountain of justice and thereby respect rule of law.

[Paras 63, 68] Precedents - Rule of precedents - Exception to rule of precedents: Held: Although it is the ratio decidendi which is a precedent and not the final order in the judgment, however, there are certain exceptions to the rule of precedents which are expressed by the doctrines of per incurium and sub silentio - A decision rendered Bilkis Yakub Rasool v. Union of India & Others by ignorance of a previous binding decision of its own or of a court of coordinate or higher jurisdiction or in ignorance of the terms of a statute or of a rule having the force of law is per incurium - A decision per incurium is not binding - A decision is passed sub-silentio when the particular point of law in a decision is not perceived by the court or not present to its mind or is not consciously determined by the court and it does not form part of the ratio decidendi it is not binding - On facts, the submission that since this Court in the order dated 13. 05.

2022 had directed that the State of Gujarat was the appropriate Government, the same was binding on the parties even though it may be contrary to the earlier decisions of this Court, cannot be accepted inasmuch as when a judgment has been delivered per incuriam or passed sub silentio, the same cannot bind either the parties to the judgment or be a binding precedent for the future even between the same parties. [Paras 44. 1, 44.

2, 45] Per incuriam- Meaning of: Held:Incuria legally means carelessness and per incurium may be equated with per ignorantium - If a judgment is rendered in ignorantium of a statute or a binding authority, it becomes a decision per incurium - Thus, a decision rendered by ignorance of a previous binding decision of its own or of a court of coordinate or higher jurisdiction or in ignorance of the terms of a statute or of a rule having the force of law is per incurium - Such a per incurium decision would not have a precedential value - If a decision has been rendered per incurium, it cannot be said that it lays down good law, even if it has not been expressly overruled - Thus, a decision per incurium is not binding. [Para 44. 1] Constitution of India - Art. 21 - Personal liberty - Protection of liberty - When: Held: Personal liberty is the most important constitutional value which is a fundamental right enshrined in Art.

21 - It is an inalienable right of man and can be deprived of or taken away only in accordance with law - That is the quintessence of Art. 21 - Person is entitled to protection of his liberty only in accordance with law. [Paras 58, 60] Words and phrases -Fraud - Meaning of - Stated. [Paras 42, 43, 43. 1] 754 Case Law Cited Union of India v. V. Sriharan [2015] 14 SCR 613 : (2016) 7 SCC 1; Naresh Shridhar Mirajkar v. State of Maharashtra,[1966] 3 SCR 744 : AIR 1967 SC 1 followed. Laxman Naskar v. State of West Bengal[2000] 1 SCR 796 : (2000) 2 SCC 595; Sangeet v. State of Haryana [2012] 13 SCR 85 : (2013) 2 SCC 452 - relied on. Maru Ram v. Union of India [1981] 1 SCR 1196 : AIR 1980 SC 2147; Radheshyam Bhagwandas Shah v. State of Gujarat (2022) 8 SCC 552; State of Haryana v. Jagdish [2010] 3 SCR 716 : (2010) 4 SCC 216; Rajiv Ranjan Singh 'Lalan' (VIII) v. Union of India [2006] 4 Suppl. SCR 742 : (2006) 6 SCC 613; Gulzar Ahmed Azmi v.

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Bangalore Development Authority 2021 SCC OnLine SC 1194; Ram Kumar v. State of Uttar PradeshAIR 2022 SC 4705; State of U. P. v. Synthetics and Chemicals Ltd. [1991] 3 SCR 64 : (1991) 4 SCC 139; Synthetics and Chemicals Ltd. v. State of U. P. [1989] 1 Suppl. SCR 623 : (1990) 1 SCC 109; Mukesh K. Tripathi v. Senior Divisional Manager, LIC[2004] 4 Suppl. SCR 127 : (2004) 8 SCC 387; Amrit Das v. State of Bihar [2000] 1 Suppl. SCR 69 : (2000) 5SCC 488; Kehar Singh v. Union of India [1988] 3 Suppl. SCR 1102 : (1989) 1 SCC 204; Mansukhlal Vithaldas Chauhan v. State of Gujarat [1997] 3 Suppl. SCR 705 : (1997) 7 SCC 622; State of Haryana v. Balwan [1999] 2 Suppl. SCR 211: (1999) 7 SCC 355; State of Haryana v. Bhup Singh [2008] 17 SCR 1306 : (2009) 2 SCC 268; Swaran Singh v. State of Uttar Pradesh [1998] 2 SCR 206: (1998) 4 SCC 75; Joginder Singh v. State of Punjab (2001) 8 SCC 306; Shantilal v. State of Madhya Pradesh [2007] 10 SCR 727 : (2007) 11 SCC 243; Sharad Hiru Kolambe v.

State of Maharashtra [2018] 11 SCR 720 : (2018) Bilkis Yakub Rasool v. Union of India & Others 18 SCC 718; Shahejadkhan Mahebubkhan Pathan v. State of Gujarat [2012] 8 SCR 1177 : (2013) 1 SCC 570; Surya Baksh Singh v. State of UP [2013] 14 SCR 452 : (2014) 14 SCC 222 - referred to. Vinter v. The United Kingdom (Applications Nos. 66069/09, 130/10 and 3896/10), (2016) III ECHR 317; Anisminic v. Foreign Compensation Commission (1969) 2 WLR 163 : (1969) 1 All ER 208; Biddle, Warden v. Perovich, 274 US 480 (1927) - referred to. Books and Periodicals Cited Weater's Constitutional Law; Thomas L. Pangle, The Laws of Plato, Basic Book Publishers, 1980; Halsbury's Law of India (Administrative Law) - referred to. List of Acts Penal Code, 1860; Code of Criminal Procedure, 1973.

List of Keywords Bilkis Bano; Prevention and reformation; Remission; Heinous crimes; Gujarat riots; Godhra Train incident; Communal hatred; Gangrape; Murder; Rioting armed with deadly weapons; Jail Advisory Committees; Remission Policy; Premature release; Appropriate Government; Public Interest Litigation; Third party stranger; Fundamental rights; Persons aggrieved; Premature Release of Convicts Policy of 1992; Early release of prisoners; Judicial review; Imprisonment in default for the non-payment of fine; Arbitrariness; Mala fides; Alternative legal remedies; Administrative Law; Executive power; Constitutional morality; Recidivism; Judicial intervention; Locus standi; Administrative order; Judicial propriety; Rule of law; Administrative decisions; Pardon; Reprieve; Clemency powers; Respites; Incarceration; Commutation; Transferring of a trial; Territorial Jurisdiction; 1992 Policy of Remission of the State of Gujarat; Fraud; Remission Policy dated 23. 01.

2014; Suppression and misleading; Suppressio veri suggestio falsi; Judicial acts; Ratio decidendi; Per incurium; Sub silentio; Rule of precedents; Jail Manual; Usurpation of power; Opinion of the Presiding Judge; Remission of sentence; Wednesbury principles; Binding precedent; Abuse of the process of law; Deprivation of liberty; Protection of the liberty. Case Arising From CRIMINAL ORIGINAL JURISDICTION: Writ Petition (Crl. ) No. 491 of 2022. (UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA) With Writ Petition (Crl. ) Nos. 319, 326, 352, 403 and 422 of 2022. Appearances for Parties Ms. Indira Jaising, Sr. Adv. , Ms. Aparna Bhat, Ms. Karishma Maria, Ms. Shobha Gupta, Pratik R. Bombarde, Yogesh Yadav, Nizam P. , Ms. Rashmi Singh, Ms. Sumita Hazarika, Ms. Vrinda Grover, Ms. Devika Tulsiani, Aakarsh Kamra, Soutik Banerjee, Shadan Farasat, Ms. Warisha Farasat, Paras Nath Singh, Rohin Bhatt, Harshit Anand, Aman Naqvi, Ms. Hrishika Jain, Ms. Natasha Maheshwari, Ms. Mriganka Kukreja, Advs.

for the Petitioner. Tushar Mehta, Solicitor General, Suryaprakash V Raju, A. S. G. , Mrs. Sonia Mathur, V. Chitambaresh, Sidharth Luthra, S. Guru Krishna Kumar, Sr. Adv. , Kanu Agarwal, Ms. Shraddha Deshmukh, Sanjay Kumar Tyagi, Annam Venkatesh, Siddharth Dharmadhikari, Arvind Kumar Sharma, Ms. Swati Ghildiyal, Rajat Nair, Ms. Devyani Bhatt, Yashraj Singh Bundela, Simarjeet Singh Saluja, Nikhil Chandra Jaiswal, Divik Mathur, Ms. Pratiksha Mishra, Ms. Rupakshi Soni, Ms. Prerna Dhall, Surjeet Singh, Ms. Ronika Tater, Pawan Sharma, Ms. Jyoti Verma, Surjit Nehra, Satya Ranjan Swain, Vishnu Kant, Praneet Pranav, Alabhya Dhamija, Ms. Megha Sharma, Ms. Akanksha Gupta, Amit Tiwari, Shoumendu Mukherji, Pashupathi Nath Razdan, Santosh Kumar, Nachiketa Joshi, Ms. Rajni Gupta, Ms. Rajni Singh, Sheezan Hashmi, Ms. Maitreyee Jagat Joshi, Astik Gupta, Udbhav Sinha, Arsh Chauhan, Ayush Kaushik, Ayush Agarwal, Pankaj Singhal, Ayush Anand, Ms. Akanksha Tomar, Ms.

Ankita Chaudhary, Santosh Kumar, Amit Sharma, Shreyas Balaji, Vaibhav Dwivedi, Sandeep Singh, Rajan K. Chourasia, Rajeev Ranjan, Ms. Snehlata Mishra, Ms. Ankita Sharma, Adarsh Pandey, Rishi Malhotra, Vishal Arun, Sushil Kumar Dubey, Santosh Kumar, Sayooj Mohan Das M. , Bhaskar Gautham, Mrinal Gopal Elker, Saurabh Singh, Ms. Aarushi Gupta, Divyansh Singh, Hira Singh Rawat, Shiv Kumar Vats, Shailja Sharma, Ms. Rinki Singh, Sandeep Singh, Prashant Padmanabhan, Advs. for the Respondents. Bilkis Yakub Rasool v. Union of India & Others Judgment / Order of the Supreme Court Judgment Nagarathna, J. Table of Contents* Sr. Particulars Page No. No(s). 1 Preface 3-5 2 Details of the writ petitioners 5-9 3 Factual Background 9-25 4 Counter affidavit of State of Gujarat 25-47 5 Submissions 47-87 6 Reply Arguments 87-101 7 Points for consideration 101-251 (A) Re: Point No. 1: Whether the petition filed by 102-106 one of the victims in Writ Petition (Crl. ) No.

491 of 2022under Article 32 of the Constitution is maintainable? (B) Re: Point No. 2:Whether the writ petitions filed 106-117 as Public Interest Litigation (PIL) assailing the impugned orders of remission dated 10. 08. 2022 are maintainable? (i) Remission : Scope & Ambit 117-136 (C) Re: Point No. 3: Whether the Government of 136-186 State of Gujarat was competent to pass the impugned orders of remission? (D) Re: Point No. 4 : Whether the impugned orders 186-218 of remission passed by the respondent - State of Gujarat in favour of respondent Nos. 3 to 13 are in accordance with law? (i) Section 432(2)of the CrPC: Opinion of the 218-227 Presiding Judge of the convicting court (ii) Sentence in default of fine 227-237 (E) Summary of Conclusions 237-241 (F) Re: Point No. 5: What Order? 241-251 8 Conclusion 251 * Ed. Note: Pagination is as per the original judgment.

760 Preface: Plato, the Greek Philosopher in his treatise, The Laws, underscores that punishment is to be inflicted, not for the sake of vengeance, for what is done cannot be undone, but for the sake of prevention and reformation (Thomas L. Pangle, The Laws of Plato, Basic Book Publishers, 1980). In his treatise, Plato reasons that the lawgiver, as far as he can, ought to imitate the doctor who does not apply his drug with a view to pain only, but to do the patient good. This curative theory of punishment likens penalty to medicine, administered for the good of the one who is being chastised (Trevor J. Saunders, Plato's Penal Code: Tradition, Controversy, and Reform in Greek Penology, Oxford University Press, 1991). Thus, if a criminal is curable, he ought to be improved by education and other suitable arts, and then set free again as a better citizen and less of a burden to the state. This postulate lies at the heart of the policy of remission.

In addition, there are also competing interests involved- the rights of the victim and the victim's family to justice vis-a-vis a convict's claim to a second chance by way of remission or reduction of his sentence for reformation. Over the years, this Court initially attached greater weight to the former and has expressed scepticism over the latter, particularly if the offence in question is a heinous one. This sentiment can be gathered from the following observations of Fazal Ali J. in Maru Ram vs. Union of India, AIR 1980 SC 2147 ("Maru Ram"): "77. ... It is true that there appears to be a modern trend of giving punishment a colour of reformation so that stress may be laid on the reformation of the criminal rather than his confinement in jail which is an ideal objective.

At the same time, it cannot be gainsaid that such an objective cannot be achieved without mustering the necessary facilities, the requisite education and the appropriate climate which must be created to foster a sense of repentance and penitence in a criminal so that he may undergo such a mental or psychological revolution that he realises the consequences of playing with human lives. In the world of today and particularly in our country,this ideal is yet to be achievedand, in fact, with all our efforts it will take us a long timeto reach this sacred goal. ××× ××× ××× Bilkis Yakub Rasool v. Union of India & Others 79. The question, therefore, is -- should the country take the risk of innocent lives being lost at the hands of criminals committing heinous crimes in the holy hope or wishful thinking that one day or the other, a criminal, however dangerous or callous he may be, will reform himself.

Valmikis are not born everyday and to expect that our present generation, with the prevailing social and economic environment, would produce Valmikis day after day is to hope for the impossible. " A woman deserves respect howsoever high or low she may be otherwise considered in society or to whatever faith she may follow or any creed she may belong to. Can heinous crimes, inter alia, against women permit remission of the convicts by a reduction in their sentence and by granting them liberty? These are the issues which arise in these writ petitions. With the aforesaid philosophical preface, we proceed to consider these writ petitions, both on maintainability as well as on merits purely from a legal perspective. Details of the writ petitioners: 2. These writ petitions have been filed assailing the Orders dated 10. 08. 2022, granting remission and early release of respondent Nos. 3 to 13 in Writ Petition (Crl. ) No.

491 of 2022 (which petition shall be considered to be the lead petition), who were all convicted, having been found guilty of committing heinous crimes during the large-scale riots in Gujarat on 28. 02. 2002 and a few days thereafter which occurred in the aftermath of the burning of the train incident in Godhra in the State of Gujarat on 27. 02. 2002. 2. 1. The grotesque and diabolical crime in question was driven by communal hatred and resulted in twelve convicts, amongst many others, brutally gang-raping the petitioner in Writ Petition (Crl. ) No. 491 of 2022, namely, Bilkis Yakub Rasool, who was pregnant at that time. Further, the petitioner's mother was gang raped and murdered, her cousin who had just delivered a baby was also gang raped and murdered. Eight minors including the petitioner's cousin's two-day-old infant were also murdered.

The petitioner's three-year-old daughter was murdered by smashing her head on a rock, her two minor brothers, two minor sisters, her phupha, phupi, mama(uncle, aunt and uncle respectively) and three-cousins were all murdered. 762 2. 2. While eventually, the perpetrators of the crime, including the police personnel were convicted and sentenced, the petitioner, who was aged twenty-one years and pregnant at that time, having lost all members of her family in the diabolical and brutal attacks, has once again approached this Court seeking justice by challenging the en-masse remission granted to respondent Nos. 3 to 13. Bilkis Yakub Rasool, being an unfortunate victim of the heinous crimes hereinabove narrated, has filed the present writ petition under Article 32 of the Constitution of India, seeking issuance of a writ, order or direction quashing the Orders dated 10. 08. 2022 passed by the State of Gujarat by which the convicts in Sessions Case No. 634 of 2004, Mumbai (respondent Nos.

3 to 13 herein), whose convictions were upheld by a Division Bench of the Bombay High Court and thereafter by this Court, have been released prematurely. 2. 3. Writ Petition (Crl. ) No. 352 of 2022 titled Dr. Meeran Chadha Borwankar vs. State of Gujarat has been preferred by a former woman police officer, a woman bureaucrat who had served in the Indian Foreign Service and an academic, seeking, inter alia, the setting aside of the remission Orders dated 10. 08. 2022. The petitioners by way of the writ petition have also sought a writ or order in the nature of mandamus directing that the States must endeavour to have a pluralistic composition in Jail Advisory Committees, adequately representing the diverse nature of our society. 2. 4. Writ Petition (Crl. ) No. 319 of 2022 titled Subhashini Ali vs.

State of Gujarat being the first of the petitions filed in this batch has been preferred under Article 32 by Subhashini Ali, a former parliamentarian and presently the Vice-President of All India Democratic Women's Association; Revati Laul, an independent journalist and Roop Rekha Verma, former Vice-Chancellor of Lucknow University, challenging the Orders dated 10. 08. 2022. 2. 5. Writ Petition (Crl. ) No. 326 of 2022 titled Mahua Moitra vs. State of Gujarat has been preferred by Mahua Moitra, a Member of Parliament from the Krishnanagar constituency in West Bengal, seeking issuance of a writ, order, or direction, quashing the Orders dated 10. 08. 2022. The petitioner in the said writ petition has also sought the framing of guidelines and the equitable Bilkis Yakub Rasool v.

Union of India & Others application of existing guidelines by the State Government for the grant of remission so as to channelise the exercise of discretion in granting remission and to prevent the misuse of such discretion, if found necessary upon an examination of the existing statutory framework. 2. 6. Writ Petition (Crl. ) No. 403 of 2022 titled National Federation of Indian Women (NFIW) vs. State of Gujarat has been filed by the National Federation of Indian Women (NFIW), which is a women centric organization that was established on 04. 06. 1954 for the purpose of securing women's rights, seeking appropriate directions in the form of a writ of mandamus to the respondent to revoke the remission granted to respondent Nos. 3 to 13 by the competent authority of the Government of Gujarat under the remission policy dated 09. 07. 1992 and to re-arrest respondent Nos. 3 to 13 herein. 2. 7. Writ Petition (Crl. ) No. 422 of 2022 titled Asma Shafique Shaikh vs.

State of Gujarat has been filed by Asma Shafique Shaikh, a lawyer by profession and a social activist, seeking issuance of a writ, order or direction, quashing the Orders dated 10. 08. 2022. 2. 8. As Writ Petition (Crl. ) No. 491 of 2022 has been filed by one of the victims, Bilkis Yakub Rasool, seeking quashing of the orders dated 10. 08. 2022, for the sake of convenience, the factual background, details as well as the status of the parties shall be with reference to Writ Petition (Crl. ) No. 491 of 2022. Factual Background: 3. The factual background in which these writ petitions have been filed is that following the aforesaid unfortunate and grave incident, a First Information Report ("FIR" for short) was registered against unknown accused, on 04. 03. 2002. The Investigation Agency filed a closure report stating that the accused could not be traced and the said closure report was accepted by the Judicial Magistrate vide Order dated 25. 03. 2003.

The closure report was challenged by the petitioner-victim-Bilkis Yakub Rasool, before this Court in Writ Petition (Crl. ) No. 118 of 2003. This Court directed the reopening of the case and transferred the investigation of the same to the Central Bureau of Investigation ("CBI" for short). 764 3. 1. The CBI commenced a fresh investigation and submitted a chargesheet on 19. 04. 2004 against twenty persons accused of the crime. Charges of gang rape, murder and rioting armed with deadly weapons with a common intention were framed against twelve persons, six police personnel and two doctors 3. 2. The petitioner-victim approached this Court by filing Transfer Petition (Crl. ) No. 192 of 2004, seeking transfer of the trial from the State of Gujarat to a neutral place. This Court in Transfer Petition (Crl. ) No. 192 of 2004, by an Order dated 06. 08. 2004, in the peculiar facts and circumstances of the case, considered it appropriate to transfer Sessions Case No.

161 of 2004 pending before the learned Additional Sessions Judge, Dahod, Ahmedabad to the competent Court in Mumbai for trial and disposal. Charges were framed on 13. 01. 2005 amongst others against the eleven convicts for the commission of offences under Sections 143, 147, 302, 376(2)(e) and (g) of the Indian Penal Code, 1860 (hereinafter referred to as the "IPC" for the sake of brevity). 3. 3. The Special Judge, Greater Mumbai, vide Judgment dated 21. 01. 2008 in Sessions Case No. 634 of 2004 convicted the eleven accused and sentenced them to life imprisonment for the commission of the offences of, inter alia, gang rape and murder of the petitioner's mother; gang rape and murder of her cousin Shamim; murder of twelve more victims including the three and a half year old daughter of the petitioner, rioting, etc. and one police personnel for deliberately recording the FIR incorrectly.

However, the Trial Court acquitted the remaining five police personnel and the two doctors, against whom there were serious charges. Respondent Nos. 3 to 13 herein were convicted for the offences punishable under Sections 143, 147, 148, 302 r/w 149 of the IPC for the murder of fourteen people; Section 376 (2)(e) & (g) for having committed gang-rape on the petitioner-victim; Section 376(2)(g) for having committed gang rape on other women. The police officer, Somabhai Gori was convicted of the offence punishable under Sections 217 and 218 of the IPC. 3. 4. On 05. 08. 2013, a Division Bench of the High Court of Bombay passed an Order in Criminal Writ Petition No. 305 of 2013 titled Ramesh Rupabhai Chandana vs. State of Maharashtra, Bilkis Yakub Rasool v. Union of India & Others preferred by respondent No.

13 herein, holding that where a trial has been transferred from one State to another and such trial has been concluded and the prisoner has been convicted, the prisoner should be transferred to the prison of his State. 3. 5. Against the judgment of the Trial Court dated 21. 01. 2008, the persons convicted, as well as the State filed Criminal Appeals before the Bombay High Court. While the convicts filed criminal appeals assailing their conviction, the State filed criminal appeal against acquittal of the police officials and the doctors A bench comprising Mrs. Mridula Bhatkar and Mrs. V. K. Tahilramani, JJ. of the Bombay High Court upheld the conviction of the eleven persons accused of the offence of rioting armed with deadly weapons, gang-rape and murder by judgment dated 04. 05. 2017 in Criminal Appeal Nos. 1020-1023 of 2009, 487 of 2010, 194 and 271 of 2011 titled Jaswantbhai Chaturbhai Nai vs. State of Gujarat.

The five police officials and the two doctors who were acquitted by the Trial Court were also convicted by the High Court. The High Court also observed that the investigation by the Gujarat police was not proper and that the Gujarat police had taken the investigation in the wrong direction from the beginning i. e. , the day of registering the FIR. That the investigation was not only unsatisfactory but it also smacked of dishonest steps to shield the culprits. It was further observed that the earlier investigation had played the role of a villain in the case. The High Court while going through the evidence also noted that "the truth and the falsehood are mixed up in such a manner that at every stage of investigation the truth is hidden under layers of intentional laxity, omissions, contradictions and falsehood and the truth is required to be unearthed". 3. 6. All the persons convicted filed Special Leave Petitions against the judgment of the High Court. This Court vide Order dated 10.

07. 2017 passed in SLP (Crl. ) Nos. 4290/2017, 4705/2017 and 4716/2017 and by Order dated 20. 11. 2017 passed in SLP (Crl. ) No. 7831/2017 dismissed the Special Leave Petitions preferred by the convicts and upheld the findings rendered by the High Court, as well as the sentence awarded. 766 3. 7. It is noteworthy that the petitioner-victim approached this Court by way of Criminal Appeal Nos. 727-733 of 2019 seeking just and adequate compensation for her ordeals. This Court vide order dated 23. 04. 2019 observed that the petitioner is a victim of riots which occurred in the aftermath of the Godhra train burning. This Court noted that the petitioner's case had to be dealt with differently as the loss she has suffered surpassed normal cases. That the gruesome and horrific acts of violence had left an indelible imprint on the mind of the petitioner, which will continue to torment and cripple her. This Court therefore directed the State Government to pay Rs.

50,00,000/- (Rupees Fifty Lakhs) to the petitioner within two weeks noting that the petitioner had been coerced into living the life of a nomad and an orphan and was barely sustaining herself on the charity of NGOs, having lost her family members. 3. 8. After undergoing 14 years 5 months and 6 days of his sentence, respondent No. 3 herein, namely, Radheshyam Bhagwandas Shah, filed Criminal Application No. 4573 of 2019 before the Gujarat High Court challenging the non-consideration of his application for premature release under Sections 433 and 433A of the Code of Criminal Procedure, 1973 (hereinafter, the "CrPC" for the sake of brevity). The High Court after considering the submissions observed that respondent No. 3 herein had been tried in the State of Maharashtra, hence, as per Section 432 (7), the 'appropriate government' for the purpose of Sections 432 and 433 of the CrPC would be the State of Maharashtra.

The High Court placed reliance on the dictum of this Court in Union of India vs. V. Sriharan, (2016) 7 SCC 1 ("V. Sriharan") and by Order dated 17. 07. 2019 directed the petitioner therein (respondent No. 3 herein) to pursue his remedy within the State of Maharashtra. 3. 9. Respondent No. 3 then moved an application dated 01. 08. 2019 before the Secretary, Department of Home Affairs, State of Maharashtra, seeking premature release under Sections 432 and 433A of the CrPC. Respondent No. 3 specifically relied on the order dated 17. 07. 2019 of the Gujarat High Court granting liberty to the convict to approach the State of Maharashtra seeking premature release. Bilkis Yakub Rasool v. Union of India & Others 3. 10. As the case was investigated and prosecuted by the CBI, the opinion of the said Agency was sought on the application for premature release. The CBI submitted its report dated 14. 08. 2019 wherein it was recommended that respondent No.

3 should serve his sentence fully and no leniency should be given to him. The CBI submitted that respondent No. 3 had actively participated in the heinous crime and that the offences committed by him and others were serious in nature and thus, he should not be pardoned or the sentence, suspended or remitted. 3. 11. Further, on 03. 01. 2020, the Special CBI Court, Mumbai, also gave a negative report and objected to the prayer for premature release of respondent No. 3 on the ground of seriousness of the offence. It was observed that the offences committed by the accused fell into category 5 (b) of the relevant State policy and were extremely serious, thus, it would be improper to grant remission to respondent No. 3. 3. 12. Similarly, on 03. 02. 2020, the Superintendent of Police, Dahod, in his report submitted to the Collector and District Magistrate, Dahod, gave a negative opinion against the pre-mature release of respondent No.

3 on the ground that the victim and her family members apprehended serious crimes against them if respondent No. 3 was released prematurely. The Office of the Collector and District Magistrate, Dahod, on 19. 02. 2020 also opined against the pre-mature release of respondent No. 3 by relying on the opinion dated 03. 02. 2020 of the Superintendent of Police, Dahod. 3. 13. Respondent No. 3 again approached the High Court of Gujarat by way of Criminal Miscellaneous Application No. 1 of 2019 in Criminal Application No. 4573 of 2019 seeking remission under Section 432 read with Section 433 of the CrPC. The High Court vide Order dated 13. 03. 2020 rejected the application preferred by respondent No. 3 with a specific observation that the appropriate government under Section 432(7)(b) to exercise the powers of remission would be the State of Maharashtra and not the State of Gujarat. It was further recorded in the said order that the counsel for respondent No.

3 had sought the permission of the Court to move the High Court of Bombay for the same relief and therefore the application was disposed of with liberty to 768 the writ petitioner therein in the aforesaid terms. It is pertinent to note that this order still holds the field as it has neither been challenged nor recalled or set aside in accordance with law. 3. 14. On 20. 07. 2021, a meeting of the Jail Advisory Committee of the State of Gujarat took place which comprised of four social workers; two members of the State Legislative Assembly; the Superintendent of Police, Godhra; the District and Sessions Judge, Godhra; the Secretary, Jail Advisory Committee and Superintendent, Godhra Sub-Jail and the District Magistrate, Godhra (Chairman of the Jail Advisory Committee, Godhra Sub-Jail). 3. 15. The Sessions Judge, Godhra, being one of the ten members of the Jail Advisory Committee, after going through the case papers observed that the convict, respondent No.

3 herein, had been sentenced to undergo life imprisonment in a sensitive case and that if he was released prematurely, it may create an adverse effect on the society and there is a possibility of peace being disturbed. The other Committee members recommended the grant of remission to respondent No. 3, on the ground that he had completed fifteen years of imprisonment and that his conduct in prison had been good. 3. 16. On 18. 08. 2021, the Additional Director General of Police, Prisons and Correctional Administration, State of Gujarat, vide his letter to the Additional Chief Secretary, Home Department, Gujarat, after considering the opinion given by the Jail Advisory Committee, concurred with the opinion given by the Superintendent of Police, Dahod; CBI; the Special CBI Court, Mumbai and the District Magistrate, Dahod and did not recommend the premature release of the convict- respondent No. 3. 3. 17. In the interregnum, the rest of the convicts, respondent Nos.

4 to 13 had applied for remission on varying dates in the month of February 2021 to the Superintendent, Godhra Sub-Jail. The opinion of the CBI was sought in this regard, and a negative opinion was given, so also by the Special Judge (CBI), Greater Mumbai. By a common opinion dated 22. 03. 2021, Special Judge (CBI), Greater Mumbai stated that since all the accused were tried and convicted in Mumbai, i. e. , the State of Maharashtra, Bilkis Yakub Rasool v. Union of India & Others the Government Resolution issued by the Home Department, Government of Maharashtra would be applicable to them. The Special Judge after perusing the guidelines issued by the Government of Maharashtra on 16. 11. 1978 and 11. 05. 1992 and the Government Resolution dated 11. 04. 2008 (Policy dated 11. 04. 2008), observed that the said resolution dated 11. 04.

2008 would apply as it had superseded all earlier orders and guidelines and would have been applicable in the normal course to the convicts undergoing life imprisonment. The Special Judge further noted that the case of the convicts mentioned above would fall under categories 2(c), 2 (d) and 4(d) of the Policy dated 11. 04. 2008, according to which the minimum period of imprisonment to be undergone is 28 years (Category 2(d)). However, the Superintendent of Police, Dahod, gave a positive opinion with respect to the premature release of respondent Nos. 3 to 13. His opinion was seconded by the Collector and District Magistrate, Dahod. 3. 18. In the aforesaid backdrop, when various steps were in progress at various stages, stealthily a writ petition, being Writ Petition (Crl. ) No. 135 of 2022 titled Radheshyam Bhagwandas Shah vs. State of Gujarat, (2022) 8 SCC 552 ("Radheshyam Bhagwandas Shah"),was filed before this Court by respondent No.

3 herein, seeking a direction in the nature of mandamus to the State of Gujarat to consider his application for pre-mature release under its policy dated 09. 07. 1992, which was existing at the time of commission of his crime and his conviction. 3. 19. This Court noted that the policy on the date of conviction was as per the resolution dated 09. 07. 1992 passed by the State of Gujarat. Hence, respondent No. 3 (petitioner therein) would be governed by the same. This Court placed reliance on the dictum in State of Haryana vs. Jagdish, (2010) 4 SCC 216 ("Jagdish") to observe that the application for grant of pre- mature release will have to be considered on the basis of the policy which stood as on the date of conviction. The other pertinent findings of this Court in its judgment and Order dated 13. 05. 2022, in Writ Petition (Crl. ) No. 135 of 2022 are culled out hereunder: i.

The argument advanced by the respondents - State of Gujarat therein that since the trial had been concluded in the State of Maharashtra, the 'appropriate Government' as referred to under Section 433 of the CrPC would be the State of Maharashtra, was rejected by this Court holding that the crime in the instant case was admittedly committed in the State of Gujarat and ordinarily, the trial would have been concluded in the same State and in terms of Section 432(7) of the CrPC, the appropriate Government in the ordinary course would have been the State of Gujarat but in the instant case, the case was transferred under exceptional circumstances by this Court for the limited purpose of trial and disposal to the State of Maharashtra. However, after the conclusion of trial and on conviction, the case stood transferred to the State where the crime was committed and the State of Gujarat remains the appropriate Government for the purpose of Section 432(7) of the CrPC. ii.

This Court observed that once the crime was committed in the State of Gujarat, after the trial came to be concluded and judgment of conviction came to be passed, all further proceedings would have to be considered, including remission or pre-mature release, as the case may be, in terms of the policy which is applicable in the State of Gujarat where the crime was committed and not the State where the trial stood transferred and concluded for exceptional reasons under the orders of this Court. iii. This Court directed the State of Gujarat to consider the application of the petitioner therein for pre-mature release in terms of its policy dated 09. 07. 1992 which was applicable on the date of conviction. 3. 20. Pursuant to the judgment of this Court dated 13. 05. 2022, a meeting of the Jail Advisory Committee of the State of Gujarat took place on 26. 05. 2022 and all the members recommended grant of remission to respondent Nos. 3 to 13. 3. 21.

The Sessions Judge, Godhra, also considered the applications of respondent Nos. 3 to 13 and upon going through the particulars provided by the Jail Superintendent, Sub-Jail, Godhra noted that Bilkis Yakub Rasool v. Union of India & Others the said report recorded that the convicts had demonstrated good behavior and conduct during the period of incarceration and that no adverse incident had been recorded against the convicts even when they were on furlough or on parole, except against one convict, namely, Mitesh Chimanlal Bhatt. That all convicts, by and large, surrendered themselves within the time after enjoying parole/furlough and participated in rehabilitation and corrective programmes. That the convicts still had substantial years of life remaining. Accordingly, the Sessions Judge applied the policy dated 09. 07. 1992 and gave an 'affirmative' opinion as regards the premature release of respondent Nos. 3 to 13. 3. 22.

The Additional Director General of Police, Prisons and Correctional Administration, State of Gujarat, addressed a letter dated 09. 06. 2022 to the Additional Chief Secretary, Home Department, Government of Gujarat, regarding the premature release of accused Kesarbhai Khimabhai Vahoniya. In the said letter, the details of the opinion given by the concerned authorities regarding the premature release of the said convict were also discussed.

It was stated in the letter that the Superintendent of Police, Dahod, had given a positive opinion regarding premature release from jail; the Superintendent of Police, Special Crime Branch, Mumbai, however, had given a negative opinion about premature release from jail; the District Magistrate, Dahod, had given a positive opinion about the premature release from jail; the Sessions Court, Mumbai, which pronounced the sentence had given a negative opinion about premature release; however, the Jail Advisory Committee of Gujarat had given a positive opinion about the convict's premature release and the Superintendent, Godhra Sub-Jail had also given a positive opinion about the premature release. Thus, the Additional Director General of Police, Prisons and Correctional Administration, State of Gujarat gave a positive opinion regarding the premature release of Kesarbhai Khimabhai Vahoniya to the Additional Chief Secretary, Home Department, Government of Gujarat.

So also, as regards the other convicts, namely, Salesh Chimanlal Bhatt, Pradip Ramanlal Modhhiya, Mitesh Chimanlal Bhatt, Bipinchand Kanhaiyalal Joshi, Rajubhai Babulal Soni, Bakabhai Khimabhai Vahoniya, Jaswantbhai Chaturbhai Nai (Rawal) and Ramesh Rupabhai Chandana. 772 3. 23. On 28. 06. 2022, the Department of Home Affairs, Government of Gujarat, addressed a letter to the Secretary, Ministry of Home Affairs, Government of India, seeking sanction from the Government of India on the proposal for the premature release of the prisoners, respondent Nos. 3 to 13. 3. 24. By letter dated 11. 07. 2022, the Ministry of Home Affairs, Government of India conveyed its approval under Section 435 of the CrPC for the premature release of all 11 convicts, respondent Nos. 3 to 13. 3. 25. Pursuant to the concurrence of the Central Government, the State of Gujarat issued the impugned orders dated 10. 08. 2022. 3. 26.

In the above background, these writ petitions have been filed, praying,inter-alia, for issuance of a writ, order, or direction, quashing the Orders dated 10. 08. 2022. Counter affidavit of State of Gujarat: 4. Under Secretary, Home Department, State of Gujarat (first respondent) has filed his affidavit stating that he is acquainted with the facts of the case as appearing from the official records of the case. While denying every assertion, contention and statement made by the petitioner in Writ Petition (Crl. ) No. 319 of 2022, which was the first of the writ petitions filed before this Court, certain preliminary submissions have been advanced at the outset. 4. 1. It is contended that the public interest litigation (PIL) filed by the petitioners (Subhashini Ali and others) is neither maintainable in law nor tenable on facts. That a third party has no locus to challenge the orders of remission passed by a competent authority under the garb of a PIL.

A PIL is not maintainable in a criminal matter as the petitioners are in no way connected with the proceedings with which the convicted persons have been granted remission. Therefore, the writ petition may be dismissed on that ground alone. In support of this submission, reliance has been placed on Rajiv Ranjan Singh 'Lalan' (VIII) vs. Union of India, (2006) 6 SCC 613 ("Rajiv Ranjan"); Gulzar Ahmed Azmi vs. Union of India, (2012) 10 SCC 731 ("Gulzar Ahmed"); Simranjit Singh Mann vs. Union of India, (1992) 4 SCC 653 ("Simranjit Singh"); and,Ashok Kumar Pandey vs. State of West Bengal, (2004) 3 SCC 349 ("Ashok Kumar"). Bilkis Yakub Rasool v. Union of India & Others It is submitted that a third party/stranger either under the provisions of the CrPC or under any other statute is precluded from questioning the correctness of grant or refusal of 'sanction for prosecution' or the conviction and sentence imposed by the Court after a regular trial.

Similarly, a third party stranger is precluded from questioning a remission order passed by the State Government which is in accordance with law. Therefore, dismissal of the petition at the threshold is sought. 4. 2. It is next averred that the petitioners have not pleaded as to how they have the locus to seek a writ of certiorari for quashing the orders of remission passed by respondent no. 1 with respect to the eleven convicts sentenced by the Special Judge, Greater Mumbai in Sessions Case No. 634 of 2004. That the petitioners have not pleaded as to how their fundamental rights have been abridged or how they are aggrieved by the action of the State Government. Therefore, filing of the writ petition as Public Interest Litigation (in short, 'PIL') is an abuse of PIL jurisdiction and is motivated by political intrigues and machinations. In this regard, reliance has been placed on Tehseen Poonawalla vs. Union of India, (2018) 6 SCC 72 ("Tehseen"); and Ashok Kumar. 4. 3.

It is further submitted that the petitioners not being aggrieved persons have invoked the jurisdiction of this Court under Article 32 of the Constitution for extraneous purposes. As the petitioners are not the "persons aggrieved", the writ petition is not maintainable. On the scope and ambit of the expression "person aggrieved", reliance has been placed on State of Maharashtra vs. M. V. Dabholkar, (1975) 2 SCC 702 ("M. V. Dabholkar"); Jasbhai Motibhai Desai vs. Roshan Kumar, Haji Bashir Ahmed, (1976) 1 SCC 671 ("Jasbhai Motibhai"); and Thammanna vs. K. Veera Reddy, (1980) 4 SCC 62 ("Thammanna"). 4. 4. On merits, it is stated that one of the respondents/prisoners, namely, Radheshyam Bhagwandas Shah had filed Writ Petition (Crl. ) No. 135 of 2022, inter alia, praying to consider his remission application. This Court by its order dated 13. 05.

2022 held that the policy which will be applicable for deciding the remission application is the one which was in vogue at the time of conviction i. e. Premature Release of Convicts Policy of 1992. Further, this 774 Court held that for the purposes of Section 432 of the CrPC, the "appropriate Government" for considering the remission application is the State in which the offence was committed and not the State in which the trial was conducted and therefore, directed the State of Gujarat to consider the application of the prisoner within a period of two months. Accordingly, the State of Gujarat considered the application of the prisoners as per Section 432 read with Section 435 of the CrPC along with the Premature Release of Convicts Policy of 1992. That, the State Government vide its Circular dated 09. 07. 1992 had issued a policy for early release of prisoners who have completed fourteen years of imprisonment and who were imposed punishment of life imprisonment.

As per the aforesaid Policy of 1992, the Inspector General of Jail is mandated to obtain the opinion of the District Police Officer, District Magistrate, Jail Superintendent and Advisory Board Committee for early release of a convict. Thereafter, the Inspector General of Jail is mandated to give his opinion with the copy of the nominal roll and copy of the judgment and the recommendation of the Government. Further, the Jail Advisory Board at the time of consideration of the premature release application shall be guided by the Policy of 1992. A copy of the policy has been annexed as Annexure R-2. It is further submitted that the State Government considered the case of all the eleven convicts as per the Policy of 1992. Further, the remission in these cases was not granted under the Circular governing grant of remission to prisoners as part of celebration as 'Azadi Ka Amrit Mahotsav". 4. 5.

The State Government in fact directed the Additional Director General of Prisons, Ahmedabad to send the necessary proposal of remission as per the direction of this Court before 31. 05. 2022 vide letter dated 25. 05. 2022. A reminder was also sent on 08. 06. 2022. Ten proposals were received on 09. 06. 2022 and one proposal was received on 17. 06. 2022. The applications of the accused were considered according to the remission policy dated 09. 07. 1992 in accordance with the directions issued by this Court. As laid down in the abovementioned policy, the Department received the opinions of the concerned District Police Officer, District Magistrate and Chairman of Jail Advisory Board Committee. It is further stated that the State Government has considered the opinions of the Inspector General of Prisons, Bilkis Yakub Rasool v.

Union of India & Others Gujarat State, Jail Superintendent, Jail Advisory Committee, District Magistrate, Police Superintendent, CBI, Special Crime Branch, Mumbai and Sessions Court, Mumbai (CBI). Therefore, the opinions of seven authorities were considered. Further, having regard to the provisions of Section 435 of the CrPC, sanction of the Government of India was also necessary. As the CBI was a central investigating agency, the State Government obtained the approval/suitable orders of the Government of India. The prisoners/convicts had completed fourteen years of imprisonment and the opinions of the concerned authorities were obtained as per Policy dated 09. 07. 1992. The same was submitted to the Ministry of Home Affairs, Government of India vide letter dated 28. 06. 2022 and sought the approval/suitable orders of the Government of India. The Government of India vide its letter dated 11. 07. 1992 conveyed its concurrence/ approval.

On considering all the opinions, the State Government decided to release the eleven convicts since they had completed fourteen years and above in jail and their behaviour was found to be good. 4. 6. Reliance has been placed on Jagdish and V. Sriharan to contend that if a policy which is beneficial to the convict exists at the time of consideration of the application of premature release then the convict cannot be deprived of such beneficial policy and that judicial review of the order of remission is not permissible in law. The Under Secretary has further proceeded to place the following facts to contend that the impugned orders are in accordance with law: "29. I say that the relevant records pertaining to the application for remission qua the prisoner, Kesharbhai Khimabhai Vahoniya, is as under: Sl. Document Opinion of the concerned No. Authority 1. Premature release application dated 19. 02. 2021. 2. Letter dated 11. 03.

2021 from Prisoner should not be released the Superintendent of Police, prematurely. CBI, SCB, Mumbai. 776 3. Letter dated 22. 03. 2021 from C o n s i d e r i n g t h e G o v t . the Special Judge (CBI), City Resolution dated 11. 04. 2008, Civil & Sessions Court, Gr. issued by the State of Bombay Maharashtra, prisoner should not be released prematurely. 4. Letter dated 07. 03. 2022 from No objection to the premature the Superintendent of Police, release of the prisoner. Dahod, Gujarat. 5. Letter dated 07. 03. 2022 from No objection to the premature the Collector & DM, Dahod, release of the prisoner. Gujarat 6. O p i n i o n o f t h e J a i l No objection to the premature Superintendent, Godhra Sub- release of the prisoner. Jail, Gujarat. 7. Opinion of the Jail Advisory T h e c o m m i t t e e h a s Committee, dated 26. 05. 2022. unanimously given the opinion in favour of the premature release of the prisoner. 8. Letter dated 09. 06.

2022 to the No objection to the premature Home Department, Govt. of release of the prisoner. Gujarat, from the Addl. Director General of Police, Prisons & Correctional Administration, Ahmedabad. 9. Letter dated 28. 06. 2022 to the Recommended premature Ministry of Home Affairs, Govt. release of the prisoner. of India from Home Department, Sought approval/suitable Govt. of Gujarat. orders from the Govt. of India. 10. Letter dated 11. 07. 2022 to the Approved the premature Home Department, Govt. of release of the prisoner. Gujarat from the Ministry of Home Affairs, Govt. of India Copy of the relevant records qua the prisoner, Kesharbhai Khimabhai Vahoniya is annexed herewith as ANNEXURE R-3. 30. I say that the relevant records pertaining to the application for remission qua the prisoner, Shaileshbhai Chimanlal Bhatt, is as under: Bilkis Yakub Rasool v. Union of India & Others Sl. Document Opinion of the concerned No. Authority 1. Premature release application dated 23. 02. 2021. 2.

Letter dated 11. 03. 2021 from Prisoner should not be released the Superintendent of Police, prematurely. CBI, SCB, Mumbai. 3. Letter dated 22. 03. 2021 from Considering the Govt. Resolution the Special Judge (CBI), City dated 11. 04. 2008, issued by Civil & Sessions Court, Gr. the State of Maharashtra, Bombay prisoner should not be released prematurely. 4. Letter dated 07. 03. 2022 from No objection to the premature the Superintendent of Police, release of the prisoner. Dahod, Gujarat. 5. Letter dated 07. 03. 2022 from No objection to the premature the Collector & DM, Dahod, release of the prisoner. Gujarat 6. O p i n i o n o f t h e J a i l No objection to the premature Superintendent, Godhra Sub- release of the prisoner. Jail, Gujarat. 7. Opinion of the Jail Advisory The committee has unanimously Committee, dated 26. 05. 2022. given the opinion in favour of the premature release of the prisoner. 8. Letter dated 09. 06.

2022 No objection to the premature to the Home Department, release of the prisoner. Govt. of Gujarat, from the Addl. Director General of Police, Prisons & Correctional Administration, Ahmedabad. 9. Letter dated 28. 06. 2022 to Recommended premature the Ministry of Home Affairs, release of the prisoner. Govt. of India from Home Sought approval/suitable orders Department, Govt. of Gujarat. from the Govt. of India. 10. Letter dated 11. 07. 2022 to the Approved the premature release Home Department, Govt. of of the prisoner. Gujarat from the Ministry of Home Affairs, Govt. of India 778 Copy of the relevant records qua the prisoner, Shaileshbhai Chimanlal Bhatt is annexed herewith as Annexure-RG-4. 31. I say that the relevant records pertaining to the application for remission qua the prisoner, Pradip Ramanlal Modhiya, is as under: Sl. Document Opinion of the concerned No. Authority 1. Premature release application dated 23. 02. 2021. 2. Letter dated 11. 03.

2021 from Prisoner should not be released the Superintendent of Police, prematurely. CBI, SCB, Mumbai. 3. Letter dated 22. 03. 2021 from Considering the Govt. Resolution the Special Judge (CBI), City dated 11. 04. 2008, issued by Civil & Sessions Court, Gr. the State of Maharashtra, Bombay prisoner should not be released prematurely. 4. Letter dated 07. 03. 2022 from No objection to the premature the Superintendent of Police, release of the prisoner. Dahod, Gujarat. 5. Letter dated 07. 03. 2022 from No objection to the premature the Collector & DM, Dahod, release of the prisoner. Gujarat 6. O p i n i o n o f t h e J a i l No objection to the premature Superintendent, Godhra Sub- release of the prisoner. Jail, Gujarat. 7. Opinion of the Jail Advisory The committee has unanimously Committee, dated 26. 05. 2022. given the opinion in favour of the premature release of the prisoner. 8. Letter dated 09. 06. 2022 to the No objection to the premature Hom