The Supreme Court on Friday refused to entertain a plea for interim bail by two convicts in the Bilkis Bano case till a fresh decision is taken on their pleas challenging the top court’s January 8, 2024 verdict leading to the cancellation of their remission – pre-mature – release from life imprisonment and sending them back to jail. Eleven accused were convicted in Bano gangrape and murder of nine members of her family including her three-year old daughter during 2002 Gujarat riots

Not inclined to entertain the plea, a bench of Justice Sanjiv Khanna and Justice PV Sanjay Kumar asked the advocate appearing for two convicts, “What is this plea? How is it even maintainable? Absolutely misconceived. How can in Article 32, we sit over appeal?”

The advocate then requested the court to permit him to withdraw the plea and the same was allowed.

The Supreme Court on January 8, 2024, had quashed the remission of sentence granted to 11 convicts in Bilkis Bano gangrape and murder of nine members of her family including her three-year old daughter during 2002 Gujarat riots and in a severe indictment of Gujarat government said that it had usurped the jurisdiction of Maharashtra government in granting remission and had acted in “tandem” and “complicity” with one of the convicts.

Quashing the August 10, 2022, Gujarat government’s order granting reemission of sentence and directing 11 convicts to surrender before the concerned jail authorities within two weeks, Justice BV Nagarathna heading a bench also comprising Justice Ujjal Bhuyan sad, “In view of Section 432 (7) read with Section 432 (1) and (2) of the CrPC, we hold that the Government of the State of Gujarat had no jurisdiction to entertain the prayers seeking remission (of sentence)” … “as it was not the appropriate Government … Hence, the orders of remission dated 10.08.2022 made in favour of (11 convicts) are illegal, vitiated and therefore, quashed.”

ON January 19, the top court had rejected the applications by convicts seeking extension of time beyond January 21, 2023, to surrender and report back to jail authorities, holding that plea for the enhancement of time to surrender were devoid of merits.

In March two accused — Radheshyam Bhagwandas Shah and Rajubhai Babulal Soni — moved the top court urging the matter of their pre-mature release from jail be referred to a larger bench, as two different benches passed different orders.

They had said that the top court’s January 8 verdict which led to cancellation of remission and re-imprisonment was judicially improper.

The January 8, 2024, judgment that had followed the May 13, 2022, judgment of the top court – that formed the basis for the grant of remission to 11 convicts by the Gujarat government – had said was obtained by the one of the convicts Radhedshyam Bhegwandas Shah @ Lala Vakil by “scrumptiously” approaching the top court in a writ jurisdiction and “committed fraud on this Court by misrepresenting” August 5, 2013, Bombay High Court judgment/order.

“…we also hold that 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 (suppressio veri, suggestio falsi) and therefore, fraudulently obtained at the hands of this Court,” the judgment said.

A bench of Justice Ajay Rastogi (since retired) and Justice Vikram Nath by May 13, 2022, judgment had directed the Gujarat government to consider the application of Radhedshyam Bhegwandas Shah for pre-mature release in terms of Julu 9, 1992 remission policy which was applicable on the date of conviction and may be decided within two months.

Stating that Gujarat government should have approached the top court seeking review of the May 13, 2022, judgment and order, Justice Nagarathna speaking for the bench had said, “Instead, the State of Gujarat has acted in tandem and was complicit with what the petitioner-respondent No.3 (Radhedshyam Bhegwandas Shah) herein had sought before this Court. This is exactly what this Court had apprehended at the previous stages of this case and had intervened on three earlier occasions in the interest of truth and justice by transferring the investigation of the case to the CBI and the trial to the Special Court at Mumbai.”

Holding that May 13, 2022, judgment by the top court “to be a nullity and non-est in the eye of law,” Justice Nagarathna had said, “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. If really State of Gujarat had in mind the provisions of law and the judgments of this Court, and had adhered to the rule of law, it would have filed a review petition before this Court by contending that it was not the appropriate Government” for the grant of remission of sentence to convicts involved in the heinous and brutal crime.

The judgment had further said, “By failing to do so (Gujarat government filing a petition seeking the review of May 13, 2022, judgment and order of the top court), not only are the earlier orders of this Court (May 13, 2022) in the matter have been vindicated but more importantly, rule of law has been breached in usurping power not vested in it and thereby aiding respondent Nos. 3 to 13.”

Giving the 11 convicts the option of seeking the remission of sentence from Maharashtra government where the trial of the case took place, the bench had said that application for the remission of sentence cannot be moved unless the convict is in prison, and directed all the 11 convicts to return to jail.

Referring to the arguments in the course of the hearing that 11 convicts were released in August 2022 and since then they have been enjoying liberty and may not be subjected to imprisonment once again, the court had said, “… this is a case where respondent Nos.3 to 13 have been granted liberty and have been released from imprisonment by virtue of the impugned orders of remission dated 10.08.2022 which we have declared and quashed as wholly without jurisdiction and non-es.”

The court had said, “we think that a person is entitled to protection of his liberty only in accordance with law. When a person’s liberty cannot be violated in breach of a law, can a person’s liberty be protected even in the face of a breach or violation of law? In other words, should the rule of law prevail over the personal liberty of a person or vice-versa?”

The court further said, “…, should this Court weigh in favour of a person’s freedom and liberty even when it has been established that the same was granted in violation of law? Should the scales of justice tilt against rule of law? In upholding rule of law are we depriving respondent Nos.3 to 13 their right to freedom and liberty? We wish to make it clear that only when rule of law prevails will liberty and all other fundamental rights prevail under our Constitution including the right to equality and equal protection of law as enshrined in Article 14 thereof.”

Indicating the factors, though not exhaustive, that should weigh with the authorities while considering application for the grant of remission of sentence, the court had said that the reasons for the grant of remission must have a bearing on the facts and circumstances of the case, the opinion must have a nexus to the record of the trial or of such record thereof as exists and there cannot be any abuse of discretion by the government.

The Presiding Judge of the Court before or by which the conviction was had or confirmed, must also forward along with the statement of such opinion granting or refusing remission, a certified copy of the record of the trial or of such record thereof as exists, the court had said.