New Delhi: The Supreme Court on Monday said the exercise of power by the Gujarat government in granting remission to 11 convicts in Bilkis Bano case, is an instance of usurpation and abuse of power. The apex court stressed that the Maharashtra government within which the offender was sentenced is the appropriate government to pass an order on remission, and the Gujarat government was not competent.
A bench comprising Justices B V Nagarathna and Ujjal Bhuyan court said not only the investigation but the trial of all the accused in the case was transferred from Gujarat to Maharashtra and particularly to a special court at Mumbai, and the trial is transferred by this court in the interest of justice from one state to another state.
The Supreme Court also cancelled its May 2022 order - delivered by Justice Ajay Rastogi (retired) – allowing 11 accused who raped Bilkis Bano, and murdered her family, during the 2002 Godhra riots, to appeal to the Gujarat government for early remission, which was granted. Justice Nagarathna said the order was "obtained through fraudulent means and suspension of facts".
The bench said there may be various reasons but what is certain is that transfer of trial in another state would be relevant while considering which state has the competency to pass remission orders. While considering which state has the competency to pass an order on remission, the bench said that the government of the state (Maharashtra) within which the offender was sentenced is the appropriate government to pass an order on remission.
“In all most cases, the court before which the offender was sentenced is located within the territory of a state wherein the offence occurred therefore in a such a case there can be no doubt about the meaning of appropriate government but according to us even in a case when a trial has been transferred via this court from a court of competent jurisdiction to a court in another state, it is still the government of the state in which the offender was sentenced is the appropriate government which has the jurisdiction as well as competency to pass an order on remission under Section 432 of CrPC”, said Justice Nagarathna.
The bench, while relying on various judgments of the apex court, said it is not the Gujarat government, wherein the offence occurred or the convict is imprisoned, can assume the power of remission. “On that short ground alone, the orders of remission have to be quashed. This aspect of competency of the Gujarat government to pass the orders of remission goes to the root of the matter and these orders are lacking in competency…..the writ petition filed by the victim has to succeed on this reasoning but the matter does not end on that…”, said the bench.
The Gujarat government, defending its decision, had submitted that it granted remission on the basis of a judgment passed by another bench of the apex court in May 2022, and after they had served 15 years in jail. The state government had said the offence was committed in its jurisdiction, therefore it had to decide on the premature release of the convicts.
The apex court also held that the apex court’s order of May 13, 2022, which directed the Gujarat Government to decide the remission as per the 1992 policy, was obtained by fraud and suppression of facts. Hence, the order is nullity and all proceedings in pursuance of the said order stand vitiated under the law, said justice Nagarathna.
The apex court wondered why the Gujarat Government had not filed any application seeking a review of the May 13, 2022, order as it was not the appropriate government and said it was a classic case where the order of the apex court has been used for violating the rule of law for passing orders for remission.
Justice Nagarathna said the exercise of power by the Gujarat government is an instance of usurpation and abuse of power. “The government of Gujarat had no jurisdiction to entertain the applications for remission, or pass the orders of remission…in favour of respondents, as it was not the appropriate government…”, said the bench.
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