BILKIS BANU JUDGEMENT AN ANALYSIS

Yesterday two Judges bench passed an order setting aside remission given by the Gujarat High Court on the recommendation of the Gujarat Government under Section 432 (7) (b) of the Code of Civil Procedure 1973 in the matter of Bilkis Banu vs Union of India. But there is different view of 5 Judges Constitution Bench in Murugan Vs Union of India . This law needs more clarification.

Brief History :

These writ petitions was 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.

The crime in question was driven by communal hatred and resulted in twelve convicts, amongst many Writ Petition (Crl.) No.491 of 2022 Etc. 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.

Cause of Action

Bilkis Yakub Rasool, being an unfortunate victim of the heinous crimes  filed the  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 Supreme Court.

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.  By letter dated 11.07.2022, the Ministry of Home Affairs, The 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. Pursuant to the concurrence of the Central Government, the State of Gujarat issued the impugned orders dated 10.08.2022.

In the above background,  writ petitions were filed, praying, inter-alia, for issuance of a writ, order, or direction, quashing the Orders dated 10.08.2022

LEGAL ISSUE INVOLVED

It was asserted inter-alia that though the crime was committed in the State of Gujarat, the investigation and trial were carried out in the State of Maharashtra under the orders of this Court. Hence, given the language of Section 432(7)(b), only the state of Maharashtra would be the appropriate government that could have considered the applications filed by respondent Nos.3 to 13 seeking remission of their sentences.

Arguments:

Several Judgments were relied on but important is the Constitution Bench Judgment in Union of India vs. V. Sriharan alias Murugan and Others, (2016) 7 SCC 1, famously known as the assassination case of the former Prime Minister Shri Rajiv Gandhi. In the said Judgment issues were framed and answered by the 5 Judges Bench on similar subject. They are as under:

QUESTION AROSE: WHICH COURT HAS JURISDICTION FOR SEEKING REMISSION ?

THE COURT WITHIN WHOSE JURISDICTION THE CRIME WAS COMMITTED OR THE COURT THAT DELIVERED CONVICTION ?

The crime in the instant case was admittedly committed in the State of Gujarat and ordinarily, the trial was to be concluded in the same State and in terms of Section 432(7) CrPC, the appropriate Government in the ordinary course would be the State of Gujarat but the instant case was transferred in exceptional circumstances by this Court for limited purposes for trial and disposal to the neighboring State (State of Maharashtra) by an order dated 6th  August 2004 but after the conclusion of the trial and the prisoner being convicted, stood transferred to the State where the crime was committed  the appropriate Government for Section 432(7) CrPC

NARRATION:

One of the co-accused Ramesh Rupabhai, in Bilkis Banu Case who had faced trial along with the petitioner and was later convicted by judgment dated 21st January 2008, approached the High Court of Bombay by filing Criminal Writ Petition no. 305 of 2013 seeking pre-mature release but his application came to be dismissed by the high court of Bombay by Order dated 5th August, 2013 on the premise that the crime was committed in the State of Gujarat and his trial came to be transferred in the peculiar circumstances, under the directions of this Court by Order dated 6th August, 2004 and once the trial stands concluded and the prisoner has been convicted, the appropriate prison would be the State of Gujarat and accordingly the application filed by the co-accused Ramesh Rupabhai for pre-mature release was left to be examined as per the policy applicable in the State of Gujarat.

In Radheshyam Bhagwandas Shah @ Lala Vakil Versus State Of Gujarat & Anr ( one of the convicts in Bilkis Banu case)  he applied to the Bombay High Court for remission on the same principles that matter was heard by the Bombay High Court. However, he was directed to Gujarat High Court by the Supreme Court vide an order dated 13th May 2022 on the same grounds.

In the present Judgment in para 40 it is narrated that 10 authorities only 3 approved premature release when the Petition was filed in Bombay High Court.

It is observed by the Division Bench that one of the convicts, Radheshyam has committed fraud on the Court. Leaving aside this issue we must consider and discuss the issue of which court has jurisdiction in the case when the matter is transferred to another court.

In Rajiv Gandhi assassination case recently Supreme Court has considered these issues in the matter of Union of India Vs V.Shriharan @ Murugan & ors. Following issues were raised. This was 5 Judges Constitution Bench.

Re: Question Nos.3, 4 and 5 as stated in para Nos.52.3, 52.4 and 52.5 of the Referral Order

52.3. Whether Section 432(7) of the Code clearly gives primacy to the executive power of the Union and excludes the executive power of the State where the power of the Union is co-extensive?

52.4. Whether the Union or the State has primacy over the subject-matter enlisted in List III of the 7th Schedule to the Constitution of India for exercise of power of remission?

52.5. Whether there can be two appropriate Governments in a given case under Section 432(7) of the Code?

Constitution Bench  answered to Question 52.3 in Para 52.3 is:-

Question 52.3. Whether Section 432(7) of the Code clearly gives primacy to the executive power of the Union and excludes the executive power of the State where the power of the Union is co-extensive?

Answer: The executive powers of the Union and the State normally operate in different fields. The fields are well demarcated. Keeping in view our discussion in relation to Articles 73 and 162 of the Constitution, Section 55A of the IPC, and Section 432 (7) of Cr.P.C. it is only in respect of the sentence of death, even when the offence in question is referable to the executive power of the State, that both the Central and State Governments have concurrent power under Section 434 of Cr.P.C. If a convict is sentenced under more than one offences, one or some relating to the executive power of the State Government and the other relating to the Executive Power of the Union, Section 435(2) provides a clear answer. Except the matters referred herein above, Section 432 (7) of Cr.P.C. does not give primacy to the executive power of the Union.

Our Answer to Question posed in Para 52.4. is:-

Question 52.4. Whether the Union or the State has primacy over the subject-matter enlisted in List III of the 7th Schedule to the Constitution of India for exercise of power of remission?

Answer: In respect of matters in list III of the 7th  Schedule to the Constitution, ordinarily the executive power of the State alone must extend. To this general principle there are two exceptions as stated in Proviso to Articles 73(1) of the  Constitution. In the absence of any express provision in the Constitution itself or in any law made by Parliament, it is the executive power of the State which alone must extend.

Our Answer to Question posed in Para 52.5. is:-

Question 52.5. Whether there can be two appropriate Governments in a given case under Section 432(7) of the Code?

Answer: There can possibly be two appropriate Governments in a situation contemplated under Section 435 (2) of Cr.P.C.. Additionally, in respect of cases of death sentence, even when the offence is one to which the executive power of the State extends, Central Government can also be appropriate Government as stated in Section 434 of Cr.P.C.. Except these two cases as dealt with inSection 434 and 435 (2) of Cr.P.C. there cannot be two appropriate Governments.

Re: Question No.6 as stated in para 52.6 of the Referral Order

52.6. Whether suo motu exercise of power of remission under Section 432(1) is permissible in the scheme of the section, if yes, whether the procedure prescribed in sub-section (2) of the same section is mandatory or not?

  1. We now turn to the exercise of power of remission under Section 432(1) of Cr.P.C.. Remissions are of two kinds. The first category is of remissions under the relevant Jail Manual which depend upon the good conduct or behavior of a convict while undergoing sentence awarded to him. These are generally referred to as ‘earned remissions’ and are not referable to Section 432 of Cr.P.C. but have their genesis in the Jail Manual or any such Guidelines holding the field

DISCUSSION:

In the above case on of Gujarat Riots hand Trial and Order were conducted in Maharashtra while, crime was committed in the State of Gujarat. Can we say that Answer to 52.5 is applicable which was delivered in Murugan Case (supra) ? This needs clarification. Because our system is based on humanity and we consider that even criminals have fundamental rights, why not a guideline is set in such cases where the trial is conducted in different states and crimes committed in different states? Considering the case of Radheshyam (Supra)  negative remarks were from the authorities of Maharashtra while the convict was imprisoned in  Godhra Sub-Jail in Gujarat! Who gave a positive note for his early release. How can Maharashtra authorities who were not in his custody give any opinion about his behaviour?

The judgment passed by the division bench lacks this explanation. This issue needs to be clarified by the Constitution Bench to avoid multiplicity of litigation.

SHRUTI DESAI

9 January 2024