New Delhi: In its historic judgment quashing the remission to 11 men convicted of gangraping Bilkis Bano and murdering seven of her family members during the 2002 riots, the Supreme Court on Monday observed that one of the convicts had played fraud and suppressed material facts to get the top court order Gujarat government to consider the remission plea back in 2022.
The apex court also observed that Gujarat government was "complicit and acted in tandem" with the convict Radheshyam Bhagwandas Shah who had approached the top court with his plea for premature release in the case. The Supreme Court slammed the state government for "usurpation of power" while granting remission to the convicts.
A bench of Justices B V Nagarathna and Ujjal Bhuyan said it failed to understand why the Gujarat government did not file a review petition against the judgment dated May 13, 2022, which directed the Gujarat government to consider the plea of a convict for premature release as per the State policy of July 9, 1992.
After the convict Radheshyam Shah moved the Supreme Court, the apex court in May 2022 allowed him to appeal to the Gujarat government for early remission, which was granted. It formed the basis for premature release of other convicts in the case. Shah had undergone 14 years and 5 months of his sentence.
"Taking advantage of the May 13, 2022 order of this court, other convicts also filed remission applications and the Gujarat government passed remission orders. Gujarat was complicit and acted in tandem with respondent No. 3 (convict Radheshyam Shah) in this case. This court was misled by suppressing facts. Use of power by Gujarat was only an usurpation of power by the State," the bench said in its order on Monday.
It added that Shah had not informed the apex court that his writ petition filed in the High Court of Gujarat had been dismissed by taking note of Section 432 (7) of the CrPC and on the basis of the decision in V. Sriharan as the trial had been concluded in the State of Maharashtra.
Shah had not stated that the application for premature release had been filed by him in the State of Maharashtra and not in the State of Gujarat as directed by the judgment of the Gujarat High Court dated July 17, 2019, the Supreme Court observed.
In 2019, Shah filed an application 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. The high court after considering the submissions observed that Shah had been tried in 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.
Shah did not disclose in his petition before the apex court that he had acted upon the July 2019, order passed by the Gujarat High Court. He moved the Maharashtra government via an application on August 1, 2019. The CBI, Superintendent of Police, Dahod, Gujarat, District Magistrate, Dahod, Gujarat and special judge (CBI), gave negative opinions on his application.
Shah had not assailed the order passed by the Gujarat High Court as there is a bar in law to assail an order passed by High Court under Article 226, under Article 32 of the Constitution.
The apex court noted that contrary to Section 432 (7) and the judgments of the constitution bench and other benches of this court, a writ of mandamus was issued to the State of Gujarat to consider the prayer of the writ petitioner for premature release in terms of its 1992 state remission policy.
“It was not brought to the notice of this court by any party that the said policy had been cancelled and had been substituted by another policy in the year 2014. What was the effect of cancellation of the policy dated 09.07.1992 was not brought to the notice of this Court either by the writ petitioner or by the State of Gujarat”, said the apex court.
The apex court noted that realising that the 11 convicts would not be released under the 2014 remission policy, which had substituted the 1992 policy, which had been cancelled, Shah filed a writ petition before the apex court seeking a specific direction to the Gujarat government to consider his case as per the 1992 policy.
The apex court said: “We may point out that if respondent No.3 (Shah) had felt aggrieved by the order of the Gujarat High Court dated July 17, 2019, it was open to him to have challenged the said order before this court by filing a special leave petition, but he did not do so. Rather, he complied with the order of the Gujarat High Court by filing a remission application dated August 1, 2019 before the Government of Maharashtra where, not only the process for consideration of the remission prayer was initiated, but opinions of various authorities were also obtained”.
After various authorities gave negative opinion on his application, Shah moved the apex court seeking a direction to the State of Gujarat to consider his remission application suppressing the material facts. “This he could not have done, thereby misrepresenting and suppressing relevant facts, thus playing fraud on this Court”, said the apex court.
The apex court said its May 2022 order, “was obtained by fraud played on this Court and hence, is a nullity and non est in law”. "If the convicts can circumvent the consequences of their conviction, peace and tranquillity in the society will be reduced to a chimaera. It is the duty of this Court to correct arbitrary orders at the earliest and to retain the foundation of trust of the public," the court said. The bench said the Gujarat government usurped the powers of the Maharashtra government by acting in furtherance of the judgment dated May 13, 2022, which in "our opinion is a nullity".
It was the State of Maharashtra that was the appropriate government to consider the remission and it was this very apprehension that led this court to transfer the trial out of the State, it said. "The exercise of power by the State of Gujarat is an instance of usurpation of power and abuse of power. This is a classic case where the order of this court was used to violate the rule of law by granting remission," the bench said.
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