Supreme Court of India
BILKIS YAKUB RASOOLversusUNION OF INDIA & OTHERS
- Citation
- 2024 INSC 24
- Decided
- 8 January 2024
- Disposal
- Appeal(s) allowed
Holding
The appropriate government for remission under Section 432 CrPC is the government of the state where the offender was sentenced, not where the crime occurred or the convict is imprisoned; thus, Gujarat had no jurisdiction, and the remission orders are void.
Summary
The Supreme Court quashed the remission orders granted by the State of Gujarat to 11 convicts in the Bilkis Bano case, who were convicted for gangrape, murder, and rioting during the 2002 Gujarat riots. The Court held that the State of Gujarat was not the 'appropriate government' under Section 432(7) of the CrPC to grant remission, as the convicts were sentenced by a Special Court in Mumbai, Maharashtra. The earlier Supreme Court order dated 13.05.2022, which directed Gujarat to consider remission, was found to be obtained by fraud and suppression of material facts, and was declared a nullity and per incuriam. The Court emphasized that the rule of law must prevail, and the remission orders were illegal and without jurisdiction. Consequently, the convicts were directed to surrender to jail authorities within two weeks. The writ petition filed by the victim, Bilkis Bano, under Article 32 was held maintainable, while the maintainability of public interest litigations was left open.
Issues considered
- Whether the writ petition filed by the victim under Article 32 of the Constitution is maintainable?
- Whether the writ petitions filed as Public Interest Litigation assailing the remission orders are maintainable?
- Whether the Government of Gujarat was competent to pass the remission orders?
- Whether the remission orders passed by Gujarat in favour of the convicts are in accordance with law?
- What is the effect of quashing the remission orders on the liberty of the convicts?
Legislation cited
- Code of Criminal Procedure, 1973s. 432, s. 433, s. 433A, s. 435
- Indian Penal Code, 1860s. 143, s. 147, s. 148, s. 302, s. 376(2)(e), s. 376(2)(g)
Subjects
Bilkis BanoRemissionHeinous crimesGujarat riotsGodhra Train incidentGangrapeMurderAppropriate GovernmentPublic Interest LitigationPremature releaseJail Advisory CommitteeRemission PolicyFraud on courtPer incuriamRule of lawPersonal libertySection 432 CrPCSection 433 CrPCSection 433A CrPCSection 435 CrPC
Judgment
[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 [2024] 1 S.C.R.
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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
[2024] 1 S.C.R. 745
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 [2024] 1 S.C.R.
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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:
[2024] 1 S.C.R. 747
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 made-
Special 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 [2024] 1 S.C.R.
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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
[2024] 1 S.C.R. 749
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 [2024] 1 S.C.R.
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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]
[2024] 1 S.C.R. 751
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]
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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
[2024] 1 S.C.R. 753
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 [2024] 1 S.C.R.
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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. Union of India [2012] 9 SCR 287 : (2012)
10 SCC 731; Simranjit Singh Mann v. Union of India
[1992] Suppl. SCR 592 : (1992) 4 SCC 653; Ashok
Kumar Pandey v. State of West Bengal [2003] 5 Suppl.
SCR 716 : (2004) 3 SCC 349; Tehseen Poonawalla
v. Union of India [2018] 9 SCR 1 : (2018) 6 SCC 72;
State of Maharashtra v. M.V. Dabholkar [1976] 1 SCR
306 : (1975) 2 SCC 702; Jasbhai Motibhai Desai v.
Roshan Kumar, Haji Bashir Ahmed [1976] 3 SCR 58
: (1976) 1 SCC 671; Thammanna v. K. Veera Reddy
[1981] 1 SCR 73 : (1980) 4 SCC 62; State of M.P. v.
Ratan Singh [1976] Suppl. SCR 552 : (1976) 3 SCC
470;Government of A.P. v. M.T. Khan [2003] 6 Suppl.
SCR 490 : (2004) 1 SCC 616; Hanumant Dass v.
Vinay Kumar [1982] 3 SCR 595 : (1982) 2 SCC 177;
Ram Ram Chander v. State of Chhattisgarh (2022) 12
SCC 52; State of Haryana v. Mohinder Singh [2000]
1 SCR 698 : (2000) 3 SCC 394; Epuru Sudhakar v.
State of A.P. [2006] 7 Suppl. SCR 81 : (2006) 8 SCC
161; Swamy Shraddhananda (2) v. State of Karnataka
[2008] 11 SCR 93 : (2008) 13 SCC 767; Sharad Hiru
Kolambe v. State of Maharashtra [2018] 11 SCR 720
: (2018) 18 SCC 718; Shantilal v. State of M.P. [2007]
10 SCR 727 : (2007) 11 SCC 243; Rajan v. Home
Secretary, Home Department of Tamil Nadu [2019] 6
SCR 1035 : (2019) 14 SCC 114; B.P Singhal v. Union
of India [2010] 6 SCR 589: (2010) 6 SCC 331; S.P.
Gupta v. Union of India [1982] 2 SCR 365 : (1981) Supp
[2024] 1 S.C.R. 755
Bilkis Yakub Rasool v. Union of India & Others
SCC 87; Kavalappara Kottarathil Kochuni v. States of
Madras and Kerala, [1960] 3 SCR 887; K. Anbazhagan
v. Superintendent of Police [2003] 5 Suppl. SCR 610
: (2004) 3 SCC 767; Sanaboina Satyanarayana v.
Government of Andhra Pradesh [2003] 1 Suppl. SCR
874 : (2003) 10 SCC 78; Zahid Hussain v. State of West
Bengal [2001] 2 SCR 442 : (2001) 3 SCC 750; State
of Punjab v. Dalbir Singh [2012] 4 SCR 608 : (2012)
3 SCC 346; T.K. Gopal v. State of Karnataka [2000]
3 SCR 1040 : (2000) 6 SCC 168; Narinder Singh v.
State of Punjab [2014] 4 SCR 1012 : (2014) 6 SCC
466; Shailesh Jasvantbhai v. State of Gujarat [2006]
1 SCR 477 : (2006) 2 SCC 359; Ahmed Hussain Vali
Mohammed Saiyed v. State of Gujarat [2009] 8 SCR
719 : (2009) 7 SCC 254; Rupa Ashok Hurra v. Ashok
Hurra [2002] 2 SCR 1006 : (2002) 4 SCC 388; Rashidul
Jafar v. State of U.P. 2022 SCC OnLine SC 1201; State
of Haryana v. Raj Kumar (2021) 9 SCC 292; Hitesh v.
State of Gujarat (Writ Petition (Crl.) No.467/2022);
Satish v. State of UP (2021) 14 SCC 580; Abdul Gani
v. State of Madhya Pradesh (1950) SCC OnLine MP
119; Shahejadkham Mahebubkham Pathan v. State of
Gujarat [2012] 8 SCR 1177 : (2013) 1 SCC 570; Satpal
v. State of Haryana [2000] 3 SCR 858 : (2000) 5 SCC
170; Mohammed Ishaq v. S. Kazam Pasha [2009] 7
SCR 1098 : (2009) 12 SCC 748; Anita Kushwaha v.
Pushap Sudan [2016] 9 SCR 560 : (2016) 8 SCC 509;
Union of India v. Ramesh Gandhi [2011] 16 SCR 126 :
(2012) 1 SCC 476; Alister Anthony Pareira v. State of
Maharashtra [2012] 1 SCR 145 : (2012) 2 SCC 648;
Ravji v. State of Rajasthan [1995] 6 Suppl. SCR 195
: (1996) 2 SCC 175; Soman v. State of Kerala [2012]
11 SCR 1155 : (2013) 11 SCC 382; Devendra Kumar
v. State of Uttaranchal [2013] 8 SCR 471 : (2013) 9
SCC 363; S. G. Jaisinghani v. Union of India, [1967] 2
SCR 703 : AIR 1967 SC 1427; E.P. Royappa v. State
of T.N. [1974] 2 SCR 348 : (1974) 4 SCC 3; State of
Haryana v. Mahender Singh [2007] 11 SCR 932 : (2007)
13 SCC 606; Shri Bhagwan v. State of Rajasthan [2001]
3 SCR 656 : (2001) 6 SCC 296; OPTO Circuit India
Ltd. v. Axis Bank [2021] 2 SCR 81 : (2021) 6 SCC 707;
Janata Dal v. H.S. Chowdhary [1992] 1 Suppl. SCR
226 : (1992) 4 SCC 305; Subramanian Swamy v. Raju
756 [2024] 1 S.C.R.
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[2013] 8 SCR 520 : (2013) 10 SCC 465; Sheonandan
Paswan v. State of Bihar [1987] 1 SCR 702 : (1987) 1
SCC 288; Abdul Wahab K. v. State of Kerala [2018] 11
SCR 155 : (2018) 18 SCC 448; A.R Antulay v. Ramdas
Sriniwas Nayak [1984] 2 SCR 914 : (1984) 2 SCC
500; Manohar Lal v. Vinesh Anand [2001] 2 SCR 1036
: (2001) 5 SCC 407; Ratanlal v. Prahlad Jat [2017] 8
SCR 682 : (2017) 9 SCC 340; Mohammad Giasuddin
v. State of A.P. [1978] 1 SCR 153: (1997) 3 SCC 287;
State (Govt. of NCT of Delhi) v. Prem Raj [2003] 2
Suppl. SCR 235 : (2003) 7 SCC 121; Sarat Chandra
Rabha v. Khagendranath Nath [1961] 2 SCR 133 : AIR
1961 SC 334; State of Mysore v. H. Srinivasmurthy
[1976] 3 SCR 255 : (1976) 1 SCC 817; Gopal Vinayak
Godse v. State of Maharashtra, (1961) 3 SCR 440;
Poonam Latha v. M.L. Wadhwan [1987] 2 SCR 1123
: (1987) 3 SCC 347; State, through Superintendent of
Police, CBI v. Nalini [1999] 3 SCR 1 : (1999) 5 SCC
253; S.P. Chengalvaraya Naidu v. Jagannath (Dead)
through LRs [1993] 3 Suppl. SCR 422 : (1994) 1 SCC
1; State of Maharashtra v. Prabhu (1994) 2 SCC 481;
K.D. Sharma v. Steel Authority of India Limited [2008] 10
SCR 454 : (2008) 12 SCC 481; K. Jayaram v. Bangalore
Development Authority 2021 SCC OnLine SC 1194;
Ram Kumar v. State of Uttar Pradesh AIR 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)
[2024] 1 S.C.R. 757
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.
758 [2024] 1 S.C.R.
Digital Supreme Court Reports
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.
[2024] 1 S.C.R. 759
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 [2024] 1 S.C.R.
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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 achieved and, in fact, with all our efforts it will take us
a long time to reach this sacred goal.
××× ××× ×××
[2024] 1 S.C.R. 761
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 [2024] 1 S.C.R.
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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
[2024] 1 S.C.R. 763
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 [2024] 1 S.C.R.
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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,
[2024] 1 S.C.R. 765
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 [2024] 1 S.C.R.
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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.
[2024] 1 S.C.R. 767
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 [2024] 1 S.C.R.
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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,
[2024] 1 S.C.R. 769
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:
770 [2024] 1 S.C.R.
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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
[2024] 1 S.C.R. 771
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 [2024] 1 S.C.R.
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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”).
[2024] 1 S.C.R. 773
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 [2024] 1 S.C.R.
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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,
[2024] 1 S.C.R. 775
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 [2024] 1 S.C.R.
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3. Letter dated 22.03.2021 from Considering the Govt.
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 A p p r o v e d t h e p r e m a t u r e
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:
[2024] 1 S.C.R. 777
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 R e c o m m e n d e d p r e m a t u r e
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 [2024] 1 S.C.R.
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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
Home Department, Govt. of release of the prisoner.
Gujarat, from the Addl. Director
General of Police, Prisons &
Correctional Administration,
Ahmedabad.
[2024] 1 S.C.R. 779
Bilkis Yakub Rasool v. Union of India & Others
9. Letter dated 28.06.2022 to R e c o m m e n d e d p r e m a t u r e
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
Copy of the relevant records qua the prisoner, Pradip
Ramanlal Modhiya is annexed herewith as ANNEXURE
RG-5.
32. I say that the relevant records pertaining to the
application for remission qua the prisoner, Mitesh Chimanlal
Bhatt, is as under:
Sl. Document Opinion of the concerned
No. Authority
1. Premature release application -
dated 18.02.2021.
2. Letter dated 10.03.2021 from Prisoner should not be released
the Superintendent of Police, prematurely.
CBI, SCB, Mumbai.
3. Letter dated 22.03.2021 from Considering the Govt.
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 25.05.2022 from No objection to the premature
the Superintendent of Police, release of the prisoner.
Dahod, Gujarat.
5. Letter dated 25.05.2022 from No objection to the premature
the Collector & DM, Dahod, release of the prisoner.
Gujarat
6. Opinion of the Jail No objection to the premature
Superintendent, Godhra Sub- release of the prisoner.
Jail, Gujarat.
780 [2024] 1 S.C.R.
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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
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 R e c o m m e n d e d p r e m a t u r e
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
Copy of the relevant records qua the prisoner, Mitesh
Chimanlal Bhatt is annexed herewith as ANNEXURE RG-6.
33. I say that the relevant records pertaining to the
application for remission qua the prisoner, Bipinchandra
Kanaiyalal Joshi, is as under:
Sl. Document Opinion of the concerned
No. Authority
1. Premature release application -
dated 16.02.2021.
2. Letter dated 10.03.2021 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.
[2024] 1 S.C.R. 781
Bilkis Yakub Rasool v. Union of India & Others
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 R e c o m m e n d e d p r e m a t u r e
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
Copy of the relevant records qua the prisoner, Bipinchandra
Kanaiyalal Joshi is annexed herewith as ANNEXURE RG-7.
34. I say that the relevant records pertaining to the
application for remission qua the prisoner, Rajubhai Babulal
Soni, is as under:
Sl. Document Opinion of the concerned
No. Authority
1. Premature release application -
dated 15.02.2021.
782 [2024] 1 S.C.R.
Digital Supreme Court Reports
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
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 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
Copy of the relevant records qua the prisoner, Rajubhai
Babulal Soni is annexed herewith as ANNEXURE RG-8.
[2024] 1 S.C.R. 783
Bilkis Yakub Rasool v. Union of India & Others
35. I say that the relevant records pertaining to the
application for remission qua the prisoner, Bakabhai
Khimabhai Vahoniya, is as under:
Sl. Document Opinion of the concerned
No. Authority
1. Premature release application -
dated 18.02.2021.
2. Letter dated 10.03.2021 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
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 R e c o m m e n d e d p r e m a t u r e
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.
784 [2024] 1 S.C.R.
Digital Supreme Court Reports
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
Copy of the relevant records qua the prisoner, Bakabhai
Khimabhai Vahoniya is annexed herewith as ANNEXURE R-9.
36. I say that the relevant records pertaining to the
application for remission qua the prisoner, Govindbhai
Akhambhai Nai (Raval), is as under:
Sl. Document Opinion of the concerned
No. Authority
1. Premature release application -
dated 15.02.2021
2. Letter dated 10.03.2021 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
Home Department, Govt. of release of the prisoner.
Gujarat, from the Addl. Director
General of Police, Prisons &
Correctional Administration,
Ahmedabad.
[2024] 1 S.C.R. 785
Bilkis Yakub Rasool v. Union of India & Others
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 release
Home Department, Govt. of of the prisoner.
Gujarat from the Ministry of
Home Affairs, Govt. of India.
37. Copy of the relevant records qua the prisoner,
Govindbhai Akhambhai Nai (Raval) is annexed herewith
as Annexure R-10.
38. I say that the relevant records pertaining to the
application for remission qua the prisoner, Jashvantbhai
Chaturbhai Nai (Raval), is as under:
Sl. Document Opinion of the concerned
No. Authority
1. Premature release application
dated 15.02.2021
-
2. Letter dated 10.03.2021 from Prisoner should not be released
the Superintendent of Police, prematurely.
CBI, SCB, Mumbai.
3. Letter dated 22.03.2021 from Considering the Govt.
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. Opinion of the Jail No objection to the premature
Superintendent, Godhra Sub- release of the prisoner.
Jail, Gujarat
786 [2024] 1 S.C.R.
Digital Supreme Court Reports
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
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 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.
Copy of the relevant records qua the prisoner, Jashvantbhai
Chturbhai Nai (Raval) is annexed herewith as Annexure
R-11.
39. I say that the relevant records pertaining to the
application for remission qua the prisoner, Rameshbhai
Rupabhai Chandana, is as under:
Sl. Document Opinion of the concerned
No. Authority
1. Premature release application
dated 25.02.2021
-
2. Letter dated 10.03.2021 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.
[2024] 1 S.C.R. 787
Bilkis Yakub Rasool v. Union of India & Others
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. Opinion of the Jail No objection to the premature
Superintendent, Godhra release of the prisoner.
Sub-Jail, Gujarat
7. Opinion of the Jail Advisory The committee has
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 No objection to the premature
the Home Department, Govt. release of the prisoner.
of Gujarat, from the Addl.
Director General of Police,
Prisons & Correctional
Administration, Ahmedabad.
9. Letter dated 28.06.2022 Recommended premature
to the Ministry of Home release of the prisoner.
Affairs, Govt. of India from
Sought approval/ suitable
Home Department, Govt. of
orders from the Govt. of India
Gujarat.
10. Letter dated 11.07.2022 to Approved the premature
the Home Department, Govt. release of the prisoner.
of Gujarat from the Ministry of
Home Affairs, Govt. of India.
Copy of the relevant records qua the prisoner, Rameshbhai
Rupabhai Chandana is annexed herewith as Annexure
R-12.
40. I say that the relevant records pertaining to the
application for remission qua the prisoner, Radheshyam
Bhagwandas Shah @ Lala Vakil, is as under:
788 [2024] 1 S.C.R.
Digital Supreme Court Reports
Sl. Document Opinion of the concerned
No. Authority
1. Premature release application
dated 01.08.2019
-
2. Letter dated 14.08.2019 from Prisoner should not be released
the Superintendent of Police, prematurely.
CBI, SCB, Mumbai.
3. Letter dated 03.01.2020 from Objected to the premature release
the Special Judge (CBI), City of the prisoner.
Civil & Sessions Court, Gr.
Bombay
4. Letter dated 13.02.2020 from Objected to the premature release
the Superintendent of Police, of the prisoner.
Dahod, Gujarat.
5. Letter dated 19.02.2020 from Objected to the premature release
the Collector & DM, Dahod, 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 9 out of 10 members of the
Committee, dated 20.07.2021 Committee has recommended
the premature release of the
prisoner.
8. Letter dated 18.08.2021 Did not recommend to the
to the Home Department, premature 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 R e c o m m e n d e d p r e m a t u r e
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.
[2024] 1 S.C.R. 789
Bilkis Yakub Rasool v. Union of India & Others
Copy of the relevant records qua the prisoner, Radheshyam
Bhgwandas Shah @ Lala Vakil is annexed herewith as
Annexure R-13.”
4.7. Therefore, it has been contended that PIL is not maintainable
as it is misconceived and devoid of any merit and as such is
liable to be dismissed.
5. Respondent No.2 has not filed any pleading in this matter. Even
though respondent Nos.3 to 13 have filed their counter affidavits,
we do not find it necessary to advert to the same as they would be
replicating the stand of the State of Gujarat.
Submissions:
6. We have heard learned counsel Ms. Shobha Gupta for the petitioner
in Writ Petition (Crl.) No.491 of 2022; learned ASG, Sri S.V. Raju
appearing on behalf of the State of Gujarat and Union of India;and
learned senior counsel Mr. Sidharth Luthra and other counsel for
respondent Nos.3 to 13 and perused the material on record.
6.1 We have also heard learned senior counsel and learned counsel
Ms. Indira Jaising, Ms. Vrinda Grover and Ms. Aparna Bhat, for
the petitioners in the public interest litigations.
6.2 We have perused the material on record as well as the judicial
dicta cited at the Bar.
7. Learned counsel for the petitioner in Writ Petition (Crl.) No.491
of 2022, Ms. Shobha Gupta at the outset submitted that the en-
masse remission granted to respondent Nos.3 to 13 by Orders
dated 10.08.2022 has not only shattered the victim-petitioner and
her family but has also shocked the collective conscience of the
Indian society. That in the present case, the right of the victim and
the cry of the society at large have been ignored by the State and
Central Governments while recommending the grant of remission
to all convicts in the case.
7.1. It was asserted that though the crime was committed in the
State of Gujarat, the investigation and trial were carried out in
the State of Maharashtra pursuant to the orders of this Court.
Hence, in view of the unambiguous language of Section 432(7)
(b), only the State of Maharashtra would be the appropriate
government which could have considered the applications filed
790 [2024] 1 S.C.R.
Digital Supreme Court Reports
by respondent Nos.3 to 13 seeking remission of their sentences.
Learned counsel has placed reliance on the following judgments
to buttress her argument, namely, State of M.P. vs. Ratan Singh,
(1976) 3 SCC 470 (“Ratan Singh”); Government of A.P. vs.
M.T. Khan, (2004) 1 SCC 616 (“M.T. Khan”); Hanumant Dass
vs. Vinay Kumar, (1982) 2 SCC 177 (“Hanumant Dass”) and
V.Sriharan.
7.2. According to learned counsel, once a competent Court in the
State of Maharashtra had tried and convicted the accused
then that State is the ‘appropriate Government’. Therefore, the
Orders of remission passed by the State of Gujarat in respect
of respondent Nos.3 to 13 is without jurisdiction and a nullity
and thus, are liable to be quashed.
7.3. As regards the applicability of the relevant remission policy,
learned counsel for the petitioner submitted that since the
‘appropriate government’ in the instant case is the State of
Maharashtra, the remission policy of the State of Maharashtra
would be applicable. Thus, the remission policy of the State of
Gujarat dated 09.07.1992 would be wholly inapplicable. It was
contended that the remission policy dated 09.07.1992 of the
State of Gujarat was not even in existence as on the date for
consideration of the remission applications as it was scrapped
by way of a Circular dated 08.05.2014 pursuant to the letter
of the Central Government circulated to all the States/UTs
requiring the implementation of the judgment of this Court in
Sangeet vs. State of Haryana, (2013) 2 SCC 452 (“Sangeet”),
wherein this Court held that before actually exercising the power
of remission under Section 432 of the CrPC, the appropriate
government must obtain the opinion of the Presiding Judge of
the convicting or confirming court and that the remission shall
not be granted in a wholesale manner, such as, on the occasion
of Independence Day etc. That pursuant to the cancellation
of the policy dated 09.07.1992, the State of Gujarat came up
with a new remission policy dated 23.01.2014, and even this
policy would not entitle remission of the accused herein, for
two reasons: firstly, because the remission policy of the State
of Maharashtra would be applicable as it is the ‘appropriate
government’, and secondly, the 2014 policy of the State of
Gujarat bars the grant of remission to convicts of heinous crimes.
[2024] 1 S.C.R. 791
Bilkis Yakub Rasool v. Union of India & Others
7.4. Relying on the opinion of the Special Judge, Sessions Court,
Greater Mumbai, it was submitted that the Special Judge had
rightly stated that the remission policy applicable in the present
case would be the Policy dated 11.04.2008 of the State of
Maharashtra in respect of which the Circular dated 13.06.2008
of the State of Maharashtra was issued, wherein a convict of
communal crime, gang rape and murder would fall under the
categories 2(c), 2(d) and 4 (e) of the Policy which prescribes
that the minimum period of imprisonment to be undergone by
the convict before remission can be considered would be twenty
eight years. Thus, respondents-convicts were not entitled to
be granted remission as they had not completed the minimum
period of imprisonment as per the applicable remission policy.
7.5. It was further contended that the remission orders under
challenge failed to meet the criteria laid down by this Court
in Sangeet; and Ram Chander vs. State of Chhattisgarh,
(2022) 12 SCC 52 (“Ram Chander”), wherein it has been
stated that the appropriate government must obtain the opinion
of the Presiding Judge of the convicting court before deciding
the remission application. That the State of Gujarat granted
remission to all the convicts by completely ignoring the negative
opinions expressed by two major stakeholders i.e., the Presiding
Judge of the convicting Court in Mumbai and the prosecuting
agency (CBI).
7.6. Reliance was placed on the decisions of this Court in State of
Haryana vs. Mohinder Singh, (2000) 3 SCC 394 (“Mohinder
Singh”); Sangeet; Ratan Singh,and Laxman Naskar vs. State
of West Bengal, (2000) 2 SCC 595 (“Laxman Naskar”) to
emphasize that a convict cannot claim remission as a matter
of right. The remission policies only give a right to the convict
to be considered and do not provide an indefeasible right to
remission.
7.7. Further, reference was made to the dicta of this Court in
Mohinder Singh; Epuru Sudhakar vs. State of A.P., (2006)
8 SCC 161 (“Epuru Sudhakar”); Maru Ram; Sangeet; Ratan
Singh and Laxman Naskar to contend that the decision to
grant remission should be well informed, reasonable and fair
and that the power cannot be exercised arbitrarily.
792 [2024] 1 S.C.R.
Digital Supreme Court Reports
7.8. Emphasizing the gravity of the offences in this case and the
grotesque nature of the crimes committed by the accused,
learned counsel Ms. Shobha Gupta submitted that while
considering the application for remission, the appropriate
government was required to bear in mind the effect of its
decision on the victim and the family of the victims, the society
as a whole and the precedent it would set for the future. To
buttress the said submission, she relied on Epuru Sudhakar,
Swamy Shraddhananda (2) vs. State of Karnataka, (2008)
13 SCC 767, (“Shraddhananda”), and Jagdish. Reliance
was also placed on the decision in Laxman Naskar wherein
this Court had discussed the factors to be considered before
granting remission.
7.9. It was urged that the prerogative power of remission is not
immune from judicial review, vide Epuru Sudhakar wherein it
was observed that judicial review of the order of remission is
available on the following grounds: (i) non-application of mind;
(ii) order is malafide; (iii) order has been passed on extraneous
or wholly irrelevant considerations; (iv) relevant materials kept
out of consideration; (v) order suffers from arbitrariness.
7.10. It was contended that in the present case, remission was
granted to all the convicts mechanically and without application
of mind to each of the cases andthat the relevant factors were
not considered. That the State Government failed to consider
the relevant material and make an objective assessment while
considering the applications of the convicts for remission. The
nature and gravity of the crime, the impact of the remission
orders on the victim and her family, witnesses and society
at large, were not considered. That mere good behaviour in
jail and completion of fourteen years in jail are not the only
pre-requisites while considering the application for premature
release of the convicts.
7.11. Attention was drawn to the fact that respondent No.3 herein
had approached the High Court of Gujarat by way of Crl.
Application No.4573 of 2019 seeking a direction to the State
Government to consider his application for remission. The
High Court vide Order dated 17.07.2019 dismissed the same
in view of Section 432 of the CrPC. Respondent No.3’s second
[2024] 1 S.C.R. 793
Bilkis Yakub Rasool v. Union of India & Others
application was also dismissed vide Order dated 13.03.2020
passed by the Gujarat High Court. That infact, within fourteen
days of the First Order dated 17.07.2019, respondent No.3
had approached the Government of Maharashtra by way of
an application dated 01.08.2019. Upon his application, opinion
was sought from the (i) Investigating Agency (CBI) and the
(ii) Presiding Officer of the convicting court (Special Judge,
Sessions Court, Greater Mumbai), both of whom opined in
the negative and against remission being granted to the said
respondent. Further, the Superintendent of Police, Dahod, vide
letter dated 03.02.2020 gave a negative opinion by noting that
the victim and her relatives stated that respondent No.3 should
not be released. The District Magistrate, Dahod, also gave a
negative opinion vide letter dated 19.02.2020, so also the Jail
Advisory Committee at its meeting held on 20.07.2021. That it
was thereafter that respondent No.3 approached this Court by
filing Writ Petition (Crl.) No.135 of 2022 and by Order dated
13.05.2022 this Court directed the State of Gujarat to consider
respondent No.3’s application within a period of two months
from the date of the order.
7.12. Further adverting to the sequence of events, it was stated that
in the meanwhile, the rest of the convicts had also applied
separately for remission in February 2021. The Presiding Officer
(Special Judge, Greater Mumbai) vide a common letter dated
22.03.2021 gave a negative opinion against the premature
release of the remaining ten convicts, respondent Nos.4 to 13
herein. That thereafter, for one good year, their case was kept
pending and only after 07.03.2022 the new Superintendent of
Police, Dahod, gave a ‘no objection’ for the premature release
of all the convicts by separate letters of the same date. The
District Magistrate, Dahod, also gave a positive opinion in favour
of the premature release of all the convicts. On 26.05.2022, a
meeting of the Jail Advisory Committee of Gujarat was held and
this time, all the members of the Committee gave a positive
opinion. The Additional Director General of Police, Prisons and
Correctional Administration vide letter dated 09.06.2022 this
time gave a positive opinion and did not raise any objection
for the release of the ten convicts.
794 [2024] 1 S.C.R.
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7.13. That although the reference by the Jail Advisory Committee to
the State Government, was only qua respondent Nos.4 to 13,
the State Government erroneously recommended the name of
respondent No.3 also, to the Central Government for remission
even in the absence of any application pending before the
State Government.
7.14. Learned counsel for the petitioner next submitted that the
Presiding Judge’s reasoned negative opinion opposing the
premature release was disregarded and this was contrary to
the mandate of Section 432(2) of the CrPC. The remission
Orders dated 10.08.2022 of respondent No.1 are in the teeth
of the negative opinion of the Presiding Judge, Special Judge
(CBI), Sessions Court, Greater Mumbai, dated 03.01.2020 and
22.03.2021, thereby, defeating the purpose of Section 432(2)
of the CrPC. Further, the remission Orders dated 10.08.2022
are conspicuously silent about the opinion of the Presiding
Judge to be mandatorily obtained under Section 432(2) of the
CrPC. Not even a reference is made to the said opinion. This
amounts to an erasure of record by removing from consideration
a document that is statutorily mandated to be considered and
judicially held to be determinative. Reliance was placed on Ram
Chander to contend that the opinion of the Presiding Judge of
the court that convicted the offender will ‘have a determinative
effect’ on the exercise of executive discretion under Section
432 of the CrPC. Further, reference was made to the decision
of this Court in V.Sriharan, wherein a Constitution Bench of
this Court held that the procedure stipulated in Section 432(2)
of the CrPC is mandatory and that the opinion of the Presiding
Judge of the Court which had tried the convict is critical and
an essential safeguard to check that the power of remission is
not exercised arbitrarily.
7.15. It was next contended that the premature release was granted
illegally as the imprisonment in default for the non-payment
of fine was not served. The Trial Court while sentencing the
respondents-convicts had also imposed a fine of Rs. 2,000/- on
each of them, for each of the fourteen counts of murder and
three counts of rape and in the event of default in payment
of said fine, sentenced them to suffer rigorous imprisonment
for a further period of two years each for each count. The
[2024] 1 S.C.R. 795
Bilkis Yakub Rasool v. Union of India & Others
total fine payable by the respondents-convicts amounted to
Rs.34,000/- each and, in default, they were liable to serve
rigorous imprisonment for a period of thirty-four years (two
years each for each count). The Trial Court had further directed
that the ‘substantive sentences’ shall run concurrently and that
the period of detention, if any, undergone by the respondents-
convicts during the investigation, enquiry, trial, shall be set off
against the terms of imprisonment, not being imprisonment in
default of payment of fine imposed on the accused. That as
per the nominal roll of respondent Nos.3 to 13, none of them
had paid the fine sentenced by the Trial Court, making them
liable to serve the penalty of rigorous imprisonment for default
in payment of fine. But the respondents have neither paid the
fine of Rs. 34,000/- to which each of them was sentenced, nor
have they served any sentence in default of the non-payment of
fine. It was submitted that the penalty of imprisonment ordered
for default in payment of fine stands on a completely different
footing from the substantive sentence of imprisonment to be
undergone for an offence. While under Section 432 of the
CrPC, the Government has the power to remit ‘punishment for
offence’, the executive discretion does not extend to waiving
off the penalty of imprisonment for default in payment of fine
under Section 64 of the IPC. In this regard, reliance was placed
on Sharad Hiru Kolambe vs. State of Maharashtra, (2018)
18 SCC 718 (“Sharad Kolambe”) and Shantilal vs. State of
M.P., (2007) 11 SCC 243 (“Shantilal”).
7.16. It was asserted that respondent No.1 while granting premature
release failed to apply its mind and address the determinative
factors outlined by this Court in Laxman Naskar. Thus, the
orders of remission are vitiated by the vice of arbitrariness for
non-consideration of relevant facts and factors. According to
learned counsel for the petitioners, a bare perusal of the Orders
dated 10.08.2022 would make it clear that premature release
was granted mechanically and arbitrarily, without giving due
consideration to the factors enumerated in Laxman Naskar,
qua each of the respondents-convicts. That the Order(s) dated
10.08.2022 are conspicuous in their silence on the behavior and
the following acts of misconduct of each of the respondents-
convicts, including the offences committed while on parole/
furlough, namely,:
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i. Case Crime No.1121001200158/2020 was registered
against the respondent-convict, Mitesh Chimanlal Bhatt,
under Sections 354, 304 and 306 of the IPC, committed
on 19.06.2020 during parole/furlough; and
ii. Case Crime No.02/2015 was registered against the
respondent-convict, Rameshbhai Rupabhai Chadana
under the Prisons Act.
7.17. It was further submitted that it is trite that in cases where a
convict has been sentenced to more than one count of life
imprisonment, he can only be released if remission is duly
granted as per law for each count of life imprisonment. That
it is a matter of record that the respondents-convicts were
sentenced on fifteen counts of life imprisonment. However, the
Orders dated 10.08.2022 have not granted remission for each
of the fifteen counts and is only a generic and blanket order,
making the release of the convicts illegal and arbitrary.
7.18. That respondent No.3 approached this Court in Writ Petition (Crl.)
No.135 of 2022, without disclosing that he had already acted
on the judgment of the Gujarat High Court dated 17.07.2019
and had submitted his application to the Home Department,
State of Maharashtra, and that his application had already
been considered by the authorities concerned, whereby, the
major stakeholders had written against the grant of remission
to him. Further, when the matter was listed before this Court,
no notice was issued to the petitioner– victim and neither was
she heard by this Court in the matter.
7.19. That the Orders dated 10.08.2022 have blatantly ignored the
grave and real apprehension regarding the safety and security
of the victims-survivors raised by public functionaries whose
opinions are required to be taken into account by respondent
No.1 State before granting premature release as per the
1992 policy. That this Court in a catena of judgments, such
as, Epuru Sudhakar and Rajan vs. Home Secretary, Home
Department of Tamil Nadu (2019) 14 SCC 114 (“Rajan”)
has highlighted the importance of considering the impact of
premature release on the victims in particular and the society
in general. That even the Superintendent of Police, Dahod,
on 03.02.2020 had recommended against the release of
[2024] 1 S.C.R. 797
Bilkis Yakub Rasool v. Union of India & Others
Radheyshyam Bhagwandas Shah as he had cited the possibility
of peace being disturbed. The Sessions Judge, Panchmahal
at Godhra also raised questions regarding the security of the
victim – petitioner herein.
7.20. Learned counsel next asserted that the en-masse and non-
speaking “sanction” of the Central Government dated 11.07.2022
under Section 435(1)(a) of the CrPC does not meet the statutory
requirement of “consultation”. The said sanction conveys its
approval for the premature release of eleven convicts sans
any reason as to why the case of each respondent-convict
is deemed fit for grant of remission. Thus, the approval was
granted without considering the relevant factors outlined in
Laxman Naskar.
7.21. That non-application of mind is evident in the non-speaking and
stereotyped orders dated 10.08.2022 which are bereft of any
reason. The Orders are devoid of reasons or grounds as to why
the respondents-convicts were found fit for the grant of remission.
All of the eleven orders are a verbatim replication of each other,
having only substituted the name and personal details of the
respondents-convicts. Further, the recommendations of the Jail
Advisory Committee dated 26.05.2022 as regards remission
of respondent Nos.3 to 13 are untenable, being arbitrary and
mechanical and vitiated by non-application of mind. The said
opinions are verbatim and mechanical reproductions of each
other that show no independent consideration of facts of each
case of the convicts.
7.22. With the aforesaid submissions, it was prayed that Writ Petition
(Crl.) No.491 of 2022 be allowed and a writ, order or direction
be issued 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),
were released prematurely.
8. Learned senior counsel Ms. Indira Jaising appearing for the petitioner
in Writ Petition(Crl.) No.326 of 2022, at the outset submitted that the
petitioner is a Member of Parliament and is a public personality and
consequently possesses the locus to file this petition as a bona fide
person and citizen of India. That the petitioner seeks to discharge her
fundamental duty under Article 51A(e) of the Constitution of India,
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seeking to promote harmony and the spirit of brotherhood amongst
the people of India, as well as to denounce the derogation of the
dignity of women. That the petitioner seeks to uphold the rule of law
and thus is not a mere busybody.
8.1. The following submissions were made to contest the orders
of remission:
(i) that when the actions of the State cause some harm to
the general public, an action by a concerned citizen would
be maintainable and reliance was placed on B.P Singhal
vs. Union of India, (2010) 6 SCC 331 (“B.P Singhal”)
in this regard.
(ii) that the impugned decisions of remission is characterized
by arbitrariness and mala fides and bear no consideration
of relevant factors That the power of the executive must
be exercised in line with constitutional ideals and must
be for the benefit of the public. In this regard, reliance is
placed on Maru Ram and S.P. Gupta vs. Union of India,
(1981) Supp SCC 87 (“S.P. Gupta”).
(iii) that there exists no statutory right of appeal against an
order of remission. The only avenue available to assail
an order of remission is either under Article 32 or Article
226. Reliance was placed on Epuru Sudhakar and Ram
Chander. Further, the jurisdiction of this Court is not ousted
by the existence of alternative legal remedies. Reliance was
placed on a Constitution Bench decision of this Court in
Kavalappara Kottarathil Kochuni vs. States of Madras
and Kerala, (1960) 3 SCR 887 (“Kochuni”).
(iv) that the present proceedings pertain to administrative law
and not criminal law and as a result, the principle of being
a stranger to the criminal proceeding does not apply to
the case at hand. Nevertheless, this Court has entertained
petitions filed by ‘strangers’ in criminal matters in the past,
as in the case of K. Anbazhagan vs. Superintendent of
Police, (2004) 3 SCC 767 (“K. Anbazhagan”).
(v) that such exercises of executive power may be challenged
on the basis of the grounds laid down in Epuru Sudhakar
and Maru Ram.
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(vi) that an important question of law arises in the present
proceedings, namely, whether it is appropriate to grant
remission after a period of fourteen years to convicts
of heinous crimes. That a further question arises, as to
whether, the victims of such crimes must be heard and due
consideration given to their vulnerability prior to the grant
of remission. That there needs to be a consideration of
how compliant such executive actions and the associated
policies are with constitutional morality. Therefore, this
Court may quash the remission orders passed under
Section 432 of the CrPC if they appear to be poorly
reasoned.
(vii) that there is a need to situate the crimes committed in the
larger context of sectarian and communal violence that was
ensuing in the 2002 riots in Gujarat State. That the crimes
were specifically targeted at the victim on the basis of her
religion and gender. That these heinous crimes constitute
crimes against humanity. It was submitted that the nature of
the crime is important to consider while deciding whether to
grant remission. The heinousness of the crimes committed
by respondent Nos.3 to 13, the communal motivation of
the crimes and the context in which those took place are
contended to have not been considered by the State while
granting remission. Reliance was placed on Sanaboina
Satyanarayana vs. Government of Andhra Pradesh,
(2003) 10 SCC 78 (“Sanaboina Satyanarayana”), wherein
a certain Government Order issued by the State of Andhra
Pradesh that excluded from the scope of remission those
prisoners who had committed crimes against women and
were sentenced to life imprisonment was upheld by this
Court considering the nature of the offences.
(viii) that the Executive is bound not merely by provisions of the
CrPC but also by the overarching spirit of the Constitution
that seeks to promote the upliftment of women, children,
and minorities and to protect these groups from further
vulnerability and marginalization. That the policies and
actions of the State must be guided by this vision.
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(ix) that, in accordance with the aforementioned constitutional
principles, grant of remission to those persons sentenced
to life imprisonment and accused of crimes under the
Scheduled Castes and Schedules Tribes (Prevention of
Atrocities) Act, the Explosive Substances Act and the
Indian Arms Act, as well as crimes against women under
Sections 376 and 354 of the IPC must not be permissible.
Factors such as the opinion of the Presiding Judge, public
interest, potential for recidivism, impact on the victims and
on society and the nature of the offence must be borne in
mind by the State, as held in Epuru Sudhakar, Sanaboina
Satyanarayana and Zahid Hussain vs. State of West
Bengal, 2001 (3) SCC 750 (“Zahid Hussain”). That the
non-consideration of these factors proves the mala fide,
arbitrary and unreasonable manner in which the impugned
orders were passed.
(x) that the 1992 Policy of remission of the State of Gujarat
does not contain any substantive guidelines pertaining to
remission and merely deals with procedural formalities.
That the 2014 Policy is thus the first instance at which
categories of crimes for which remission may not be
granted was outlined. As such, it is the 2014 Policy that
would apply to the question of remission for respondent
Nos.3 to 13.
(xi) that the grant of remission to the respondent Nos.3 to
13 is in violation of India’s obligations under international
law, specifically instruments such as the International
Covenant on Civil and Political Rights and the Convention
on the Elimination of All Forms of Discrimination Against
Women. That rape was used as a tool of oppression by the
perpetrators and the victim in the instant case experienced
significant trauma as a consequence.
(xii) that the grant of remission in the instant case is in violation
of the obligation to prevent crimes against humanity, which
itself forms a part of the norm of jus cogens. That there
is a link between the peremptory norm of jus cogens and
fundamental values, making the former non-derogable
[2024] 1 S.C.R. 801
Bilkis Yakub Rasool v. Union of India & Others
and a part of domestic law even if not explicitly codified.
Reliance was placed on State of Punjab vs. Dalbir Singh,
(2012) 3 SCC 346 (“Dalbir Singh”) on this aspect.
(xiii) that the acts of violence that were committed in Gujarat
in 2002 are crimes against humanity, owing to their
widespread nature and communal motivations. That
remission must not be granted to perpetrators of crimes
of such gravity.
8.2. With the above submissions learned senior counsel for the
petitioners sought quashing of the impugned orders.
9. Learned counsel Ms. Vrinda Grover for the petitioner in Writ
Petition(Crl.) No.352 of 2022, submitted that it was absolutely
necessary to consider the opinion of the Presiding Judge. Reliance
was placed on Ram Chander and V. Sriharan. Her further
submissions are recorded as under:
(i) that the Presiding Judge, namely the Special Judge (CBI),
Sessions Court, Mumbai gave negative opinions dated
03.01.2020 and 22.03.2021 as to grant of remission to
respondent Nos.3 to 13. The said opinion was well-reasoned
and took into account all of the relevant factors, but this was
completely disregarded by the respondent-State.
(ii) that a fine was imposed on each of the respondent-convicts as
a part of their sentence, amounting to Rs. 34,000/- per person.
That they had defaulted in paying these fines and thus would be
required to undergo rigorous imprisonment for a further period
of 34 years. The Trial Court had clarified that these sentences
were substantive in nature and would run concurrently. In this
context, reliance was placed on Sharad Kolambe and Shantilal.
(iii) reiterating the submissions regarding the remission orders being
arbitrary by virtue of non-consideration of relevant factors, it
was urged that the criteria outlined in the decision of this Court
in Laxman Naskar were not considered at all. Reliance was
further placed on the decision of this Court in Mohinder Singh,
wherein it was held that the decision to grant remission must
be reasonable, well-informed and fair. That non-application of
mind and the mechanical nature of the remission orders utterly
belie these principles.
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(iv) that reference has only been made to four documents, namely
(1) the order of this Court dated 13.05.2022, (2) the letter of the
Additional Director General of Police and Inspector General of
Prisons, State of Gujarat at Ahmedabad, (3) the Department
Circular dated 09.07.1992 and (4) the letter of the Ministry of
Home Affairs, Government of India in the impugned orders
of remission. It was contended that the non-consideration
of determinative factors has rendered the remission orders
mechanical and arbitrary, with reliance placed on what is
described as the untenable and unlawful en-masse approval
of the Central Government.
(v) that one of the criteria that is required to be considered
which was highlighted in Laxman Naskar is the possibility of
reformation and recidivism. That these factors have been given
no consideration as there is no mention of the respondent-
convicts’ behavior while in prison, as well as offences committed
while out on parole/furlough. That a case has been registered
against one of the respondent-convicts under Sections 304,
306 and 354 IPC while on parole. That a range of punishments
were imposed on the respondent-convicts in prison hence, the
possibility of recidivism cannot be entirely ruled out.
(vi) that there is a real and grave apprehension of danger to the
victim if the respondent-convicts are released into society. This
has been reflected in the recommendation of Superintendent of
Police, Dahod as well as the questions raised by the Principal
and Sessions Judge, Panchmahal at Godhra in the Jail Advisory
Committee meeting dated 26.05.2022.
(vii) that remission must be granted for each particular count of life
imprisonment, as all of these are superimposed over each other.
Remission granted qua one sentence does not automatically
extend to the others as well. That a generic, mechanical and
unreasoned blanket order of remission has been passed by
the respondent-State, as remission is not stated to have been
granted for all of the life sentences of each respondent-convict.
(viii) that Section 435(1)(a) of the CrPC makes it mandatory for the
State Government to consult the Central Government regarding
the exercise of power to grant remission. But the en-masse and
non-speaking nature of the sanction granted by the Central
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Government, merely conveys approval of the premature release
of the respondent-convicts, which do not meet the requirement
of ‘consultation’. Reliance was again placed on Laxman Naskar.
(ix) further, the opinion of the Sessions Judge, Panchmahal, Godhra
is of a casual and perfunctory character, that doesn’t pay heed
to the heinous nature of the crimes committed.
(x) it was further submitted that the remission orders having
thus been established as unreasoned, untenable and vitiated
by arbitrariness and mala fides, there is a need for judicial
intervention in the same.
10. Learned counsel for the petitioner in Writ Petition(Crl.) No.319 of
2022, Ms. Aparna Bhat submitted that the aforesaid writ petition
has been filed purely in the interest of the general public and out of
concern for the impact on society if the respondents-convicts were
released. That there is no political agenda behind the filing of this
writ petition by the petitioner, who is a member of a national political
party and an advocate for women’s rights.
11. Sri Mohammad Nizamuddin Pasha, learned counsel appearing
on behalf of the petitioner in Writ Petition (Crl.) No.403 of 2022
submitted that the cases which are at stages prior to conviction.
i.e., investigation and trial must be treated as being on a different
footing as guilt would not have been established and the fair trial
rights of the accused still subsisted. However, there is no right to
remission post-conviction as held in V.Sriharan. That it is only upon
conviction that the need for the accused to remain in prison becomes
a concern of the society. That all theories of punishment, including
those of retributivism and utilitarianism, emphasize the impact on
society as being of primary importance. Reliance was placed on
T.K. Gopal vs. State of Karnataka, (2000) 6 SCC 168 (“T.K.
Gopal”), Narinder Singh vs. State of Punjab, (2014) 6 SCC 466
(“Narinder Singh”), Shailesh Jasvantbhai vs. State of Gujarat,
(2006) 2 SCC 359 (“Shailesh Jasvantbhai”) and Ahmed Hussain
Vali Mohammed Saiyed vs. State of Gujarat, (2009) 7 SCC 254
(“Mohammed Saiyed”).
12. Sri. S.V. Raju, learned Additional Solicitor General of India, appearing
on behalf of the State of Gujarat and Union of India, at the outset
submitted that the writ petitions filed by persons other than the
victim are not maintainable. That the said persons are strangers and
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have no locus-standi to challenge the remission orders passed by
the State of Gujarat. The said petitioners are in no way connected
with the proceedings which convicted the respondents herein nor
the proceedings which culminated in the grant of remission to the
convicts. Reliance was placed on the decisions of this Court in Rajiv
Ranjan; Gulzar Ahmed Azmi; Simranjit Singh and Ashok Kumar to
contend that no third party/stranger’s interference in criminal matters
is permissible in law in the garb of filing a PIL.
12.1. Referring to Writ Petition (Crl.) No.319 of 2022, it was contended
that nowhere has the petitioner therein, namely, Subhasini Ali
pleaded as to how her fundamental rights had been abridged
and as to how she was aggrieved by the action of the State
Government. That the petitioner therein was nothing but an
interloper and a busybody and not a ‘person aggrieved’ as
per the dicta of this Court in M. V. Dabholkarand Jasbhai
Motibhai. Thus, the PIL filed by such a person is nothing but
an abuse of the PIL jurisdiction of this Court and against the
principles laid down in Tehseen and Ashok Kumar. Therefore,
learned ASG sought for dismissal of all the PILs challenging the
impugned orders of remission on the ground of maintainability.
12.2. It was next contended that there was no illegality in the
Orders granting remission to respondent Nos.3 to 13, dated
10.08.2022. That this Court in Writ Petition (Crl.) No.135
of 2022 vide judgment dated 13.05.2022 had held that the
policy which would be applicable for deciding the remission
application was the one which was in vogue at the time of
conviction i.e., the premature release policy of 1992 and that
for the purposes of Section 432 of the CrPC, the ‘appropriate
government’ for considering the remission application is that
State in which the offence was committed and not the State in
which the trial was conducted and therefore, had directed the
State of Gujarat to consider the application of respondent No.3,
Radheshyam Bhagwandas Shah. Accordingly, the respondent-
State of Gujarat had considered the application of the convict
as per the procedure prescribed under Section 432 of the CrPC
read with Section 435 of the CrPC, along with the Premature
Release of Convicts Policy of 1992. The State Government
considered the cases of all eleven prisoners as per the policy
of 1992 and remission was granted on 10.08.2022.
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12.3. That further, the Order(s) dated 10.08.2022 were passed
after duly considering the opinions expressed by Inspector
General of Prisons, Gujarat State; Jail Superintendent; Jail
Advisory Committee, District Magistrate; Superintendent of
Police, CBI, Special Crime Branch, Mumbai; and the Special
Court, Mumbai (CBI). That as per Section 435 of the CrPC,
it is indispensable to obtain the sanction of the Government
of India in cases in which the investigation of the offence was
carried out by a central investigation agency. In the present
case, the investigation was carried out by CBI, hence, the State
Government obtained the approval of Government of India.
12.4. It was next submitted that respondent Nos.3 to 13 had
completed more than fourteen years in custody, that their
behaviour had been good and the opinions of the concerned
authorities had been obtained as per the policy of 09.07.1992.
The State Government submitted the opinions of the concerned
authorities to the Ministry of Home Affairs, Government of
India vide letter dated 28.06.2022 and sought the approval
of the Government of India which conveyed its concurrence/
approval under Section 435 of the CrPC for the premature
release of eleven convicts vide letter dated 11.07.2022. Hence,
after following the due procedure, Orders were issued on
10.08.2022 to release the convicts which would not call for
any interference by this Court.
12.5. Reliance was placed on the judgment of this Court in Jagdish
wherein it was held that if a policy which is beneficial to the
convict exists at the time of consideration of his application
for premature release, then the convict cannot be deprived of
such a beneficial policy. It was held in the said case that, “In
case a liberal policy prevails on the date of consideration of
the case of a “lifer” for premature release, he should be given
the benefit thereof.” That bearing in mind such considerations,
the applications of respondent Nos.3 to 13 for remission were
considered and decided.
12.6. That 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) of the CrPC,
the appropriate government in the ordinary course would be
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the State of Gujarat. However, the trial in the instant case was
transferred under exceptional circumstances by this Court to
the neighboring State of Maharashtra for the limited purpose
of trial and disposal by an order dated 06.08.2004 but after
the conclusion of trial and the prisoners being convicted, the
matter stood transferred to the State where the crime was
committed and thus, the State of Gujarat was the appropriate
government for the purpose of Section 432(7) of the CrPC.
12.7. It was submitted that the Orders dated 10.08.2022 were
passed by the Government of Gujarat after following the due
procedure laid down in this regard and on an application of
mind. Therefore, the same do not call for any interference by
this Court in these petitions.
13. Learned Counsel for respondent No.3, Sri Rishi Malhotra at the outset
attacked the maintainability of the writ petitions on the ground that in
substance, the petitions seek to challenge the judgment of this Court
dated 13.05.2022 in Writ Petition(Crl.) No.135 of 2022; that the same
is impermissible and is in the teeth of the judgment of a Constitution
Bench of this Court in Rupa Ashok Hurra vs. Ashok Hurra, (2002)
4 SCC 388, (“Rupa Ashok Hurra”) wherein it has been held that
a writ petition assailing the judgment or order of this Court after
the dismissal of the Review Petition is not maintainable. Thus, the
only remedy, if any, available to the petitioner-victim herein against
the dismissal of the Review Petition, is to file a Curative Petition as
propounded by this Court in the case of Rupa Ashok Hurra.
13.1. Sri Rishi Malhotra further submitted that in this proceeding
this Court cannot sit over the judgment passed by another co-
ordinate bench. It was further submitted that this Court by its
judgment dated 13.05.2022 was right in categorically directing
the State of Gujarat to consider the application for premature
release of respondent No.3 in terms of the policy dated
09.07.1992 which was applicable on the date of conviction.
That after duly taking into account the fact that respondent No.3
had undergone over fifteen years of imprisonment and that no
objections were received from the Jail Superintendent, Godhra
and that nine out of ten members of the Jail Advisory Committee
had recommended his premature release. That coupled with
the aforesaid facts the Home Department of the State of
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Bilkis Yakub Rasool v. Union of India & Others
Gujarat as well as the Union Government had recommended
and approved the premature release of respondent No.3. This
clearly demonstrates that the remission order was correct.
Further, it is nowhere mentioned in the 1992 policy that all
stakeholders must give a unanimous opinion for the release
of the convict. All it says is that the State Government should
collate various opinions from different quarters in order to
arrive at a decision.
13.2. As regards the contention of learned counsel for the petitioner-
victim to the effect that the Orders are illegal inasmuch as
those were passed without consulting the Presiding Judge of
the convicting court as required under Section 432(2) of the
CrPC, it was submitted that the said provision categorically
stipulates that the appropriate government ‘may require’
the Presiding Judge of the Trial Court to give his opinion,
hence obtaining such an opinion is not mandatory; whereas,
Section 435 of the CrPC uses the word ‘shall’ in respect to
the State Government to act only after consultation with the
Central Government. The legislature is conscious to use the
words ‘may’ and ‘shall’ whenever it deems appropriate and
necessary and that the said procedure has been followed in
the instant case.
14. At the outset, learned senior counsel appearing for respondent
No.13, Sri Sidharth Luthra contended that a writ petition does not
lie against the final order of this Court, thus the petitioners could
have only filed a Curative Petition. He further submitted as follow:
i) In this regard reliance was placed on the decision of this Court
in Rupa Ashok Hurra, wherein it was held that a writ petition
under Article 32 assailing a final judgment of this Court is not
maintainable. That since the Review Petition against the Order
dated 13.05.2022 has been dismissed by this Court, similar
contentions cannot be re-agitated in the guise of the present writ
petition. Reliance was also placed on the decision of this Court
in Naresh Shridhar Mirajkar vs. State of Maharashtra, AIR
1967 SC 1 (“Naresh Shridhar Mirajkar”), wherein it has been
held that a writ shall not lie against an order of a Constitutional
Court. It was thus submitted that the order dated 13.05.2022
has attained finality and cannot be questioned by way of a
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writ petition under Article 32. Furthermore, in view of the Rules
framed by this Court, Order XLVIII thereof lays down how an
order of this Court can be questioned by means of a Curative
Petition and thus, a natural corollary is that the same cannot
be done through a writ petition.
ii) As regards the issue of appropriate government and appropriate
policy, learned senior counsel Sri Luthra submitted that the
said issues stood settled in view of this Court’s Order dated
13.05.2022. The judgments of this Court in Rashidul Jafar vs.
State of U.P., 2022 SCC OnLine SC 1201 (“Rashidul Jafar”);
State of Haryana vs. Raj Kumar, (2021) 9 SCC 292 (“Raj
Kumar”) and Hitesh vs. State of Gujarat (Writ Petition(Crl.)
No.467/2022)(“Hitesh”) were pressed into service wherein it
had been held that the policy as on the date of conviction would
apply, and therefore, the 1992 Policy of the State of Gujarat will
apply for the grant of remission in the present case.
iii) Learned senior counsel thereafter raised the plea that in India, a
reformative/rehabilitative and penal sentencing policy is followed
and not one which is punitive in nature. The same was reiterated
when the Model Prison Act, 2023 was finalized which aims at
“reforming prison management and ensuring the transformation
of inmates into law-abiding citizens and their rehabilitation in
society.” Furthermore, in the case of Vinter vs. The United
Kingdom (Applications Nos.66069/09, 130/10 and 3896/10),
(2016) III ECHR 317(“Vinter “) in the context of rehabilitation
and reformation it was held by the European Court of Human
Rights that, “Moreover, if such a person is incarcerated without
any prospect of release and without the possibility of having his
life sentence reviewed, there is the risk that he can never atone
for his offence: whatever the prisoner does in prison, however
exceptional his progress towards rehabilitation, his punishment
remains fixed and unreviewable.”Learned senior counsel
submitted that respondent No.13 had exhibited unblemished
behaviour in prison and there was no criminality attached to
his conduct in prison.
iv) Sri Luthra refuted the argument of the petitioners that in the
light of the grievous nature of the offence, the convicts herein
do not deserve remission. At the stage of remission, the length
of sentence or the gravity of the original crime cannot be the
[2024] 1 S.C.R. 809
Bilkis Yakub Rasool v. Union of India & Others
sole basis for refusing premature release as held in Satish
vs. State of UP, (2021) 14 SCC 580 (“Satish”). Therefore,
any argument regarding the factual nature of the crime or the
impact it had on society are not relevant for consideration of
remission was the submission of Sri Luthra.
v) That it is open for the High Court as well as this Court to modify
the punishment by providing for a specific period of incarceration
without remission, considering the purported heinous nature of
the offence but neither the High Court nor this Court chose to
exercise the said power to incarcerate the private respondents
herein for a duration which was non-remittable. This shows
that the aforesaid argument advanced by the petitioner is only
a red herring.
vi) It was emphasized that an order of remission passed by an
authority merely affects the execution of the sentence, without
interfering with the sentence passed by the Court. Therefore,
since the matter has already attained finality, it is not possible
to question the validity of such an order on factual grounds
alone, such as, the nature of crime, impact on society and
society’s cry for justice.
vii) Learned senior counsel submitted that the mere fact that fine
had not been paid or that there was a default in payment of
the fine imposed does not impact the exercise of the power of
remission. The sentence is something which an offender must
undergo unless it is set aside or remitted in part or in whole
either in appeal, or in revision, or in other appropriate judicial
proceedings or ‘otherwise’, whereas, a term of imprisonment
ordered in default of payment of fine stands on a different
footing vide Shantilal;Abdul Gani vs. State of Madhya
Pradesh, (1950) SCC OnLine MP 119 (“Abdul Gani”) and
Shahejadkham Mahebubkham Pathan vs. State of Gujarat,
(2013) 1 SCC 570 (“Shahejadkham Mahebubkham Pathan”).
Further, reliance was placed on Sharad Kolambe, wherein it
was observed by this Court that, “If the term of imprisonment
in default of payment of fine is a penalty which a person incurs
on account of non-payment of fine and is not a sentence in
strict sense, imposition of such default sentence is completely
different and qualitatively distinct from a substantive sentence.”
810 [2024] 1 S.C.R.
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15. Learned senior counsel appearing for respondent No.7 Mrs. Sonia
Mathur, while adopting the submissions of other senior counsel
further contended as under:
15.1. That as per Section 432 (7)(b) of the CrPC and the judicial
precedent set in Radheshyam Bhagwandas Shah, the
appropriate government would be the State of Gujarat. The
said judgment has attained finality as the Review Petition
filed against the said judgment was dismissed by this Court
on 13.12.2022. Thus, the said judgment must be followed for
the sake of judicial propriety.
15.2. As to the nature of the requirement under Section 432 (2)
of the CrPC, i.e., whether mandatory or directory, it was
submitted that as observed by this Court in Ram Chander the
opinion so obtained is not to be mechanically followed and the
government has the discretion to seek an opinion afresh. That
the said view would demonstrate that the discretion vests with
the concerned government as to whether or not to seek and
rely upon the opinion of the Presiding Judge of the Trial Court.
15.3. As regards the contentions of the learned counsel for the
petitioner-victim as to non-payment of fine, it was submitted
that a fine of Rs.6,000/- was paid by respondent No.7 without
any objection on 27.09.2019 before the Sessions Court, Greater
Mumbai. However, without prejudice to the said payment, there
is no provision in the Prison Manual of Gujarat, which bars
remission from being granted if the fine is not paid. The grant
of remission cannot be restricted just because a convict is not
financially capable to bear the fine. The same would cause
discrimination based on the economic and financial capacity
of a convict to pay fine, resulting in the violation of Articles 14
and 21 of the Constitution.
15.4. We have heard learned counsel for the other respondents.
With the aforesaid submissions, it was prayed that these writ
petitions be dismissed.
Reply Arguments:
16. Ms. Shobha Gupta, learned counsel for the petitioner-victim submitted
in her rejoinder on the point that the writ petition was maintainable
under Article 32 of the Constitution as follows:
[2024] 1 S.C.R. 811
Bilkis Yakub Rasool v. Union of India & Others
(i) that the order of grant of remission being an administrative order,
there was neither a statutory nor substantive right of appeal
available to the aggrieved parties. The only remedy available
was to file a writ petition under Article 226 of the Constitution
before the High Court of Gujarat, or to file a writ petition before
this Court under Article 32 of the Constitution.
(ii) that this Court has on multiple occasions entertained writ
petitions under Article 32 of the Constitution in those cases where
there existed a “gross violation of fundamental rights”, or when
an executive or administrative decision “shocked the conscience
of the public, the nation or of this Court”. In this context, reliance
was placed on the judgments of this Court in Epuru Sudhakar;
Satpal vs. State of Haryana, (2000) 5 SCC 170 (“Satpal”) and
Mohammed Ishaq vs. S. Kazam Pasha, (2009) 12 SCC 748
(“Mohammed Ishaq”). It was submitted that a similar issue of
maintainability arose in Mohammed Ishaq, wherein this Court
observed that the mere existence of an alternative remedy in
the form of Article 226 does not preclude an aggrieved person
from approaching this Court directly under Article 32. The rule
requiring the exhaustion of alternative remedies was described
as being one of “convenience and discretion” as opposed to
being absolute or inflexible in nature.
(iii) that this Court had in the past entertained writ petitions under
Article 32 filed by convicts seeking intervention in matters of
premature release or the issuance of appropriate directions.
Reliance was placed on the judgments in Ram Chander,
Laxman Naskar and Rajan.
(iv) that this Court had earlier entertained a writ petition filed by
none other than respondent No.3 himself and no question was
raised as to the maintainability of that writ petition. All of the
other private respondents are beneficiaries of the order dated
13.05.2022 passed by this Court in the aforesaid writ petition.
It is thus incongruous to raise the objection of maintainability
only against the writ petition filed by the petitioner-victim. That
the petitioner-victim was totally unaware of Writ Petition (Crl.)
No.135 of 2022 filed by respondent No.3 seeking premature
release before this Court. The petitioner learnt about the release,
like the general public did, from the news and social media.
812 [2024] 1 S.C.R.
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That the petitioner had barely begun to recover from the shock
of respondent Nos.3 to 13 being released when several PILs
were filed, and this Court was already seized of the matter. This
left the petitioner with no choice but to approach this Court.
(v) that the petitioner had also filed a Review Petition seeking
review of the order dated 13.05.2022, wherein this Court
held the State of Gujarat to be the appropriate government to
consider the grant of remission, being the State in which the
crime took place. The said order was perincuriam and contrary
to the judgements of this Court. On this aspect, reliance
was again placed on V.Sriharan, Rattan Singh, M. T. Khan
and Hanumant Dass. Hence, the petitioner was under the
impression that the said Review Petition and this writ petition
would be considered together by this Court. But the Review
Petition has been dismissed. Hence, this writ petition has to
be considered on its own merits.
(vi) that the challenge to the maintainability of this writ petition is
fallacious in the context of the specific argument raised by
respondent Nos.1 and 2, namely, that the direction given by
this Court as on 13.05.2022 was a mandate that was merely
being adhered to in the remission order and therefore the same
would not be open to challenge. That this further exemplifies
non-application of mind and a hasty and mechanical manner
of granting remission by misrepresenting about the order dated
13.05.2022.
(vii) It was submitted that the ‘right to justice’ was recognized as an
indispensable human and fundamental right in Anita Kushwaha
vs. Pushap Sudan, (2016) 8 SCC 509 (“Anita Kushwaha”),
and that this writ petition was maintainable on that basis also.
In light of the aforementioned submissions, learned counsel
contended that the filing of a writ petition under Article 32
before this Court is the most efficacious remedy available to
the petitioner.
16.1. Reiterating her submissions regarding the non-consideration
of the negative opinions of the investigating agency, namely
the CBI as well as the Judge of the Special CBI Court,
[2024] 1 S.C.R. 813
Bilkis Yakub Rasool v. Union of India & Others
Mumbai, learned counsel went on to refute the claim of the
learned Additional Solicitor-General that the relevant opinion
would be that of the Presiding Judge of the Godhra Court
who was convinced of the merits of grant of remission. That
this contention of learned ASG would contradict the plain
language of Section 432(2) which specifies that the Presiding
Judge should have been the one who awarded or confirmed
the sentence. Reliance was again placed on the judgments
of this Court in Sangeet, Ram Chander and V. Sriharan.
Learned counsel further contended that the submission of the
learned ASG that the use of the word ‘may’ in Section 432(2)
would imply that there is no necessary requirement to seek
the opinion of the Presiding Judge is erroneous in light of the
dictum of this Court in V.Sriharan.
16.2. It was next contended that a letter dated 17.11.2021 was filed
along with the application dated 10.08.2022. The said letter
by the State of Gujarat addressed to the State of Maharashtra
detailed that the State of Gujarat possessed no powers
of remission with respect to respondent No.3 and that the
appropriate government in this respect would be the State of
Maharashtra. Despite taking this view, which is in accordance
with the position of law laid down by this Court in various
cases, including V. Sriharan, no review petition was filed by
the State challenging the 13.05.2022 order.
16.3. It was next submitted that the learned Additional Solicitor-
General had placed on record the opinion of the CBI dated
09.07.2022 wherein, after an apparent change of mind, grant
of remission to respondent Nos.3 to 13 was recommended.
That neither of the documents, namely, the letter of the State
of Gujarat and the changed opinion of the CBI find any mention
in the counter-affidavit filed by the State on 17.10.2022. It was
further submitted that these additional documents establish
the rapid timeline of the process adopted by the Central
Government in affirming the orders of remission, as the State
Government’s communication was received on 06.07.2022, the
opinion of the CBI was sought and received on 09.07.2022
and the Central Government expressed its concurrence on
11.07.2022.
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16.4. It was further contended that respondent No.3 produced a
document dated 18.06.2022 during the course of his arguments,
stating that the same was the opinion of the Presiding Judge of
the Mumbai Special Court (CBI). However, the veracity of the
said document cannot be established as the State claimed to
be not in possession of and is entirely unaware of the same.
16.5. Learned counsel reiterated that the above facts reveal non-
application of mind and the mechanical manner in which the
orders of remission were passed in the instant case.
16.6. Learned counsel for the petitioners next submitted that
on 30.08.2023, the fine amounts owed were deposited by
respondent Nos.3 to 13. That this is as an admission on their
part of the non-payment of fine. It was contended that they
would ordinarily have had to undergo a further period of six
years of imprisonment. That non-consideration of this fact
further proves the non-application of mind and a mechanical
exercise of power by the State of Gujarat and Union of India
in granting remission.
16.7. Learned counsel went on to submit that in Writ Petition (Crl.)
No.135 of 2022 filed by respondent No.3, there was no mention
of material particulars, such as, the name of the petitioner-victim
and the nature of the crimes in question, i.e., gang rape and
mass murder in the petition. Also the fact that his application
for grant of remission before the State of Maharashtra had
been negatively opined by all the concerned authorities. That
respondent No.3 did not place on record the judgements and
orders of the Trial Court, High Court, and this Court that had
upheld his conviction. That he made “incorrect and misleading”
statements with reference to the orders of the Bombay
High Court dated 05.08.2013 and Gujarat High Court dated
17.07.2019, namely, that the two courts had given differing
opinions, and this fact played a role in this Court’s decision-
making while passing the order dated 13.05.2022. Respondent
No.3 made it seem like both High Courts were sending him to
the other State and that there was a contradiction. However,
the aforesaid order of the Bombay High Court was dealing with
the transfer of convicts to another jail in their parent State and
did not discuss the issue of remission, which could not have
arisen in the year 2013.
[2024] 1 S.C.R. 815
Bilkis Yakub Rasool v. Union of India & Others
16.8. It was reiterated that the investigating agency of the State
of Gujarat had filed a closure report stating that the accused
persons were not traceable. That the FIR contained erroneous
recording of facts merely to hinder the investigative process.
That the case was transferred by this Court to the State
of Maharashtra as a consequence of the tainted nature of
investigation. That the only reason the petitioner could get
justice was because the investigation was conducted by the
CBI. That this demonstrates the highly biased and partisan
treatment of the petitioner by the State of Gujarat. That the
State has been granting parole and furlough to the respondents
in a liberal manner once they were transferred to the Godhra
Jail. That in light of the highly diabolical and gruesome nature
of the crimes, the treatment awarded to the respondents by
the State indicates favouritism and leniency.
16.9. Learned counsel reiterated that the nature of the crimes
committed by the respondent Nos.3 to 13 were unusual and
egregious. That these crimes were very shocking to the society
as a whole and the treatment of the respondents upon being
granted remission invoked a common sense of pain in the
nation. That in fact the Bombay High Court had described
the brutal treatment of the victims by the respondent Nos.3 to
13, which was reflected in the condition of the dead bodies.
These factors require that respondents Nos.3 to 13 be treated
differently from other ordinary criminals.
17. Learned senior counsel, Ms. Indira Jaising, appearing for the petitioner
in Writ Petition (Crl.) No.326 of 2022 in her rejoinder at the outset
submitted that the State of Gujarat does not have a policy of any
kind for the release of prisoners under Section 432 of the CrPC. That
the 1992 Policy merely outlines the procedure to be followed when
releasing convicts on remission. That the State must abide by the
law laid down by this Court as well as the constitutional mandate to
protect the fundamental rights of women, particularly when they are
victims of sexual violence in relation to ethnic conflict.
17.1. Further, it was contended that the State of Gujarat is not the
appropriate government and therefore the order of this Court
dated 13.05.2022 is per incuriam by virtue of failing to follow
the binding precedent in V. Sriharan. That the impugning
of the order of the Gujarat High Court that held the State of
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Maharashtra to be the appropriate Government in Writ Petition
(Crl.) No.135 of 2022, filed by respondent No.3, is completely
contrary to the position of law laid down in Naresh Shridhar
Mirajkar, wherein it was held that no writ petition alleging the
violation of fundamental rights would lie against the judgement
or order of a court. That the respondent No.3 committed fraud
on this Court by misrepresenting the order of the Bombay
High Court dated 05.08.2013 in Writ Petition(Crl.) No.135 of
2022. That the question of two High Courts taking “dramatically
different views” did not arise as the issue of appropriate
Government was not in question before the Bombay High Court
at all. That this amounts to suppressio veri, expression falsi.
That this Court in Union of India vs. Ramesh Gandhi, (2012)
1 SCC 476 (“Ramesh Gandhi”), has held that any judgement
that is a consequence of misrepresentation of necessary facts
would constitute fraud and would be treated as a nullity. That
this error of the Court cannot lead to the deprivation of justice
to the victims. While the criminal justice system must strive
to adopt a reformative approach, proportionality of sentence
must be treated as an equally important ideal. Reliance was
placed on the judgements of this Court in Alister Anthony
Pareira vs. State of Maharashtra, (2012) 2 SCC 648 (“Alister
Anthony Pareira”), Ravji vs. State of Rajasthan, (1996) 2
SCC 175(“Ravji”) and Soman vs. State of Kerala, (2013)
11 SCC 382 (“Soman”).
18. Ms. Vrinda Grover, learned counsel for the petitioner in Writ
Petition(Crl.) No.352 of 2022 reiterated the contentions as to the
centrality and non-optional nature of seeking the opinion of the
Presiding Judge under Section 432(2) of the CrPC, the non-serving
of the concurrent sentences for the non-payment of fine by the
respondent Nos.3 to 13 as well as the need to consider the nature
of the crimes and the impact on public welfare while considering
the grant of remission. Reliance was placed on the judgment of
this Court in Ram Chander, Sharad Kolambe, Devendra Kumar
vs. State of Uttaranchal, (2013) 9 SCC 363 (“Devendra Kumar”)
and Abdul Gani.
18.1. It was further submitted that the State of Gujarat has not
considered the possibility of recidivism and whether there was
any evidence of reformation of respondent Nos.3 to 13. That as
per the record, respondent Nos.3 to 13 have not demonstrated
[2024] 1 S.C.R. 817
Bilkis Yakub Rasool v. Union of India & Others
any sign of reform and have not expressed any remorse for
the crimes they have committed. That their applications for
remission do not contain reference to feelings of remorse felt
by them for their actions. The non-payment of fine is further
indication of the absence of remorse. Also fresh cases have
been registered against two of the respondents, and this serves
as proof of their non-reformation.
18.2. It was also contended that reliance cannot be placed on
documents, such as, letter dated 09.07.2022 of the C.B.I,
wherein an affirmative opinion on remission was expressed
as well as a letter produced by respondent No.3 containing
the affirmative opinion of the Special Judge (C.B.I), Civil and
Sessions Court, Mumbai as these documents have not been
listed among the documents relied upon by the State of Gujarat
while granting remission to the respondent Nos.3 to 13.
19. Ms. Aparna Bhat, learned counsel for the petitioner in Writ Petition(Crl.)
No.319 of 2022 in her rejoinder submitted that the remission granted
by the State of Gujarat to respondent Nos.3 to 13 was violative of
Article 14 of the Constitution of India. That prison statistics from the
year 2021 reveal that 66.7% of the convicts in Gujarat are undergoing
life imprisonment, at least a fraction of whom have completed fourteen
years of incarceration. That no special case has been made out either
by the State of Gujarat or the Union of India as to why respondent
Nos.3 to 13 are singularly entitled to remission over all of the other
convicts. Reliance was placed on judgements in S. G. Jaisinghani
vs. Union of India, AIR 1967 SC 1427(“S. G. Jaisinghani”) and
E.P. Royappa vs. State of T.N., (1974) 4 SCC 3 (“E.P. Royappa”),
wherein this Court held that arbitrary and mala fide exercise of
power by the State would constitute a violation of Article 14 of the
Constitution. That discretionary and en-masse remission on festive
occasions was held to be impermissible in the case of Sangeet.
19.1. It was further submitted that there is no right to remission that
a convict can necessarily avail. That remission must be an
exercise of discretion judiciously by the concerned authorities.
Reliance was placed onthe judgments of this Court inSangeet,
V. Sriharan, State of Haryana vs. Mahender Singh, (2007)
13 SCC 606 (“Mahender Singh”); Mohinder Singh, Maru
Ram and Shri Bhagwan vs. State of Rajasthan, (2001) 6
SCC 296 (“Shri Bhagwan”).
818 [2024] 1 S.C.R.
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20. Mr.Mohammad Nizamuddin Pasha, learned counsel for the petitioner
in Writ Petition(Crl.) No.403 of 2022 reiterated the contention that
materials not relied upon by the State of Gujarat while deciding on
the question of remission for respondent Nos.3 to 13 cannot be used
to justify the decision retrospectively. Reliance was placed on the
decision of this Court in OPTO Circuit India Ltd. vs. Axis Bank,
(2021) 6 SCC 707 (“OPTO Circuit”). That contrary to the submission
of the learned ASG, the State has to consider the gravity of the offence
while deciding whether to grant remission or not. That in cases,
where the crimes are of a much less serious nature, remission has
not been granted owing to the perceived seriousness of the offences
by the State but in these cases of gruesome crime, remission has
been simply granted. Further, there is a need to consider the fact
that the victim and the convicts live in close proximity while granting
remission, which fact has been considered in other cases but not in
the impugned remission orders.
Points for consideration:
21. Having heard learned senior counsel and learned counsel for the
respective petitioners as well as learned ASG, learned senior counsel
and learned counsel for the respondents, the following points would
arise for our consideration:-
1) Whether the petition filed by one of the victims inWrit Petition
(Crl.) No.491 of 2022 under Article 32 of the Constitution is
maintainable?
2) Whether the writ petitions filed as Public Interest Litigation (PIL)
assailing the impugned orders of remission dated 10.08.2022
are maintainable?
3) Whether the Government of the State of Gujarat was competent
to pass the impugned orders of remission?
4) Whether the impugned orders of remission passed by the
respondent-State of Gujarat in favour of respondent Nos.3 to
13 are in accordance with law?
5) What Order?
The aforesaid points shall be considered in seriatim.
A detailed narration of facts and contentions would not call for
reiteration at this stage.
[2024] 1 S.C.R. 819
Bilkis Yakub Rasool v. Union of India & Others
Re: Point No.1:“Whether the petition filed by one of the victims
in Writ Petition (Crl.) No.491 of 2022under Article 32 of the
Constitution is maintainable?”
22. Sri Rishi Malhotra, learned counsel for respondent No.3, while
placing reliance on the decisions of this Court, made a specific plea
regarding maintainability of Writ Petition (Crl.) No.491 of 2022 filed
by the victim by contending that the said petitioner had filed a review
petition challenging the order dated 13.05.2022 passed in Writ Petition
(Crl.) No.135 of 2022 and the same was dismissed. Therefore, the
only remedy open to the petitioner was to file a curative petition in
terms of the judgment of this Court in Rupa Ashok Hurrah and not
challenging the remission orders by filing a fresh writ petition. We
shall answer this contention in detail while considering point No.3.
22.1. One of the contentions raised by learned Senior Counsel,
Sri S. Guru Krishna Kumar appearing for one of the private
respondents was that the petitioner inWrit Petition (Crl.)
No.491 of 2022, Bilkis Bano, ought to have challenged the
orders of remission before the Gujarat High Court by filing
a petition under Article 226 of the Constitution rather than
invoking Article 32 of the Constitution before this Court. In this
regard, it was submitted that by straightaway filing a petition
under Article 32 of the Constitution a right of approaching this
Court by way of an appeal by an aggrieved party has been
lost. It was submitted that if victims file petitions under Article
32 of the Constitution before this Court challenging orders of
remission, floodgates would be opened and persons such as
the petitioner would straightaway file writ petitions before this
Court. That when an alternative remedy of filing a writ petition
under Article 226 of the Constitution is available which is also
a wider remedy than Article 32 of the Constitution, the petition
filed by the writ petitioner in Writ Petition (Crl.) No.491 of 2022
must be dismissed reserving liberty to her to approach the
High Court, if so advised.
Similar arguments were made by learned senior counsel Sri
Chidambaresh.
22.2. At the outset, we state that Article 32 of the Constitution is
a part of Part-III of the Constitution of India which deals with
Fundamental Rights. The right to file a petition under Article 32
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of the Constitution is also a Fundamental Right. In the instant
case, the petitioner - Bilkis Bano has filed her writ petition
under Article 32 of the Constitution in order to enforce her
Fundamental Rights under Article 21 of the Constitution which
speaks of right to life and liberty and Article 14 which deals
with right to equality and equal protection of the laws. The
object and purpose of Article 32 of the Constitution which is
also recognised to be the “soul of the Constitution” and which
is a Fundamental Right in itself is for the enforcement of other
Fundamental Rights in Part-III of the Constitution. We think
that the aforesaid constitutional remedy is also to enforce the
goals enshrined in the Preamble of the Constitution, which
speak of justice, liberty, equality and fraternity. Bearing in mind
the expanded notion of access to justice which also includes
speedy remedy, we think that the petition filed by the petitioner
in Writ Petition (Crl.) No.491 of 2022 cannot be dismissed on
the ground of availability of an alternative remedy under Article
226 of the Constitution or on the ground of its maintainability
under Article 32 of the Constitution before this Court.
22.3. There is another stronger reason as to why the said petitioner
has approached this Court by filing a petition under Article
32 of the Constitution rather than invoking Article 226 of the
Constitution before the High Court. That is because earlier, one
of the respondents, namely, respondent No.3 Radheshyam
Bhagwandas Shah had preferred Writ Petition(Crl.) No.135 of
2022 invoking Article 32 of the Constitution before this Court by
seeking a direction to the State of Gujarat to consider his case
for remission under the Policy of 1992. This Court issued a
categorical direction to that effect. In fact, the respondent-State
has understood the said direction as if it was a command or
a direction to grant remission within a period of two months.
But, before this Court in the said proceedings, one of the
serious contentions raised by the State of Gujarat was that it
was not the appropriate Government to grant remission which
contention was negatived by the order dated 13.05.2022. In
fact, that is one of the grounds raised by the petitioner victim
to assail the orders of remission granted to respondent Nos.3
to 13. That being so, the High Court of Gujarat would not
have been in a position to entertain the aforesaid contention
[2024] 1 S.C.R. 821
Bilkis Yakub Rasool v. Union of India & Others
in view of the categorical direction issued by this Court in Writ
Petition (Crl.) No.491 of 2022 disposed on 13.05.2022. In
the teeth of the aforesaid order of this Court, the contention
regarding the State of Gujarat not being the competent State
to consider the validity of the orders of remission in a petition
filed under Article 226 of the Constitution, 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. Therefore, for this reason also the petitioner
in Writ Petition(Crl.) No.135 of 2022 has, in our view, rightly
approached this Court challenging the orders of remission. The
contentions of learned Senior Counsel, Sri S. Guru Krishna
Kumar and Sri Chidambaresh are hence, rejected. Thus, we
hold that Writ Petition (Crl.) No.491 of 2022 filed under Article
32 of the Constitution is clearly maintainable.
Re: Point No.2:“Whether the writ petitions filed as Public Interest
Litigation (PIL) assailing the impugned orders of remission dated
10.08.2022 are maintainable?”
23. We now record the submissions made with regard to maintainability
of the Public Interest Litigation (PIL) assailing the orders of remission
in favour of respondent Nos.3 to 13 herein.
23.1. Learned ASG appearing for the State of Gujarat as well as
Union of India submitted that the writ petitions filed as public
interest litigations are not maintainable as the petitioners are
strangers to the impugned orders of remission and they are in
no way connected with the matter. In this context, reliance was
placed on certain decisions referred to above including Rajiv
Ranjan, Simranjit Singh, and, Ashok Kumar, to contend that
there can be no third party interference in criminal matters in
the garb of filing public interest litigations. It was also contended
that the petitioners who have filed the public interest litigation
are interlopers and busybodies and are not persons who are
aggrieved. In the aforesaid context, reliance was placed on
M.V. Dabholkar and Jasbhai Motibhai.
23.2. Shri Sidharth Luthra, learned senior counsel has also voiced the
arguments of the respondents by referring to certain decisions
of this Court while contending that the grant of remission is
in the exclusive domain of the State and although no convict
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can seek remission as a matter of fundamental right has
nevertheless the right to be considered for remission. That
remission is a matter between the convict and the State and,
therefore, there can be no third party inference in such a matter.
The detailed submissions of the learned counsel have already
been adverted to above and, therefore, it is unnecessary to
reproduce the same once again.
23.3. Respondent No.3 has challenged the locus of the petitioners
in Writ Petition (Crl.) No.319 of 2022 and connected writ
petitions and contended that the petitioners therein are not
related to the said case and are third-party/strangers to the
case. If petitions filed by third- party strangers are entertained
by this Court, then it would unsettle the settled position of law
and would open floodgates for litigation. Learned counsel for
respondent No.3 Sri Rishi Malhotra placed reliance on the
decision of this Court in Janata Dal vs. H.S. Chowdhary,
(1992) 4 SCC 305 (“Janata Dal”) which was reiterated and
followed in Simranjit Singh and in Subramanian Swamy vs.
Raju, (2013) 10 SCC 465 (“Subramanian Swamy”) where
it has consistently been held that a third party, who is a total
stranger to the prosecution has no ‘locus standi’ in criminal
matters and has no right whatsoever to file a petition under
Article 32.
23.4. In Simranjit Singh, this Court was faced with the situation
where a conviction of some of the accused persons by this
Court under the Terrorist and Disruptive Activities (Prevention)
Act, (TADA Act) was sought to be challenged under Article 32 of
the Constitution by the President of the Akali Dal (M), namely,
Simranjit Singh Mann which was dismissed. In paragraph 5
of the judgment in Simranjit Singh, this Court categorically
dealt with the said issue and held that the petition under Article
32 of the Constitution was not maintainable for the simple
reason that the petitioner therein did not seek to enforce any
of his fundamental rights nor did he complain that any of his
fundamental rights were being violated. This Court was of the
view that a total stranger in a criminal case cannot be permitted
to question the correctness of a decision.
[2024] 1 S.C.R. 823
Bilkis Yakub Rasool v. Union of India & Others
24. Per contra, learned senior counsel, Ms. Indira Jaising, has made
her submissions on the issue of locus standi of the petitioner in
Writ Petition (Crl.) No.326 of 2022. According to her, even when no
specific legal injury is caused to a person or to a determinate class
or group of persons by an act or omission of the State or any public
authority but when an injury is caused to public interest, a concerned
citizen can maintain an action for vindicating the rule of law and
setting aside the unlawful action or enforcing the performance of
public duty. (Vide B.P Singhal).
24.1. She asserted that the writ petition raises questions of great
public importance in that, in a democracy based on the rule
of law, no authority has any unfeterred and unreviewable
discretion. All powers vested in an authority, are intended to
be used only for public good. The exercise of executive power
must be informed by the finer canons of constitutionalism, vide
Maru Ram. That the impugned decision of granting remission
to the convicts violates rule of law, is arbitrary and not based
on any relevant consideration. Therefore, the writ petition filed
by the petitioner in public interest is maintainable. In this regard
reliance was placed on S.P. Gupta.
24.2. As regards respondents’ contention that by entertaining the
petition under Article 32 of the Constitution the convicts have
been denied the right of appeal, it was submitted that there
exists no statutory right of appeal against an order denying or
permitting remission. Such an order can only be challenged
under Article 226 or Article 32 of the Constitution. Further, a
Constitution Bench of this Court in Kochuni observed that, “…
the mere existence of an adequate alternative remedy cannot
per se be a good and sufficient ground for throwing out a petition
under Article 32, if the existence of a fundamental right and
a breach, actual or threatened, of such right is alleged and is
prima facie established on the petition.”
24.3. As regards the respondents’ submission that a stranger to
the criminal proceedings under any circumstance cannot file
a petition under Article 32, it was contended that the instant
proceedings are not criminal in nature, they fall within the
realm of administrative law as they seek to challenge orders
of remission which are administrative decisions. Learned
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senior counsel brought to our notice the fact that this Court
had entertained a petition filed by a DMK leader under Section
406 of the CrPC seeking the transfer of a pending criminal trial
against his political opponent, J. Jayalalithaa, from the State
of Tamil Nadu to the State of Karnataka vide K. Anbazhagan.
25. Ms. Vrinda Grover, learned counsel for the petitioner in Writ Petition
(Crl.) No.352 of 2022, at the outset, submitted that the said petition
has been filed in the larger public interest by the petitioners who have
vast knowledge and practical expertise on issues of public policy,
governance and upholding the rule of law. Their petition challenges
not only the arbitrary and mala fide exercise of executive prerogative
under Section 432 of the CrPC, but also prays for a shift in practices
related to the grant of remission by bringing in more accountability
and transparency to the process of grant of remission. Thus, the writ
petition is maintainable as a Public Interest Litigation.
25.1. Learned counsel contended that the petition does not constitute
an intervention into criminal proceedings but is rather a
challenge to arbitrary executive action, which is amenable
to judicial review. That it is settled law that the exercise of
power under Section 432 of the CrPC is an administrative act
which neither retracts from a judicial order nor does it wipe
out the conviction of the accused and is merely an executive
prerogative exercised after the judicial function in a criminal
proceeding has come to an end vide Epuru Sudhakar and
Ashok Kumar.
25.2. It was further submitted that all the judgments cited by the
respondents-convicts as also the respondent-State to argue
that the petitioners have no locus standi in the matter refer to
different stages of criminal proceedings, viz. petitions related to
investigation, trial, sentencing or quashing of the FIR. However,
the present petition is a challenge to the arbitrary and mala
fide administrative action which has arisen after the criminal
proceedings have attained finality in the eye of law.
25.3. Learned counsel submitted that it is trite that the exercise of
executive discretion is subject to rule of law and fairness in
State action as embodied in Article 14 of the Constitution. The
exercise of such discretion under Section 432 of the CrPC which
[2024] 1 S.C.R. 825
Bilkis Yakub Rasool v. Union of India & Others
is arbitrary or mala fide amounts to State action in violation
of constitutional and statutory obligations and is detrimental
to public interest. Learned counsel placed reliance on the
decision of this Court in S. P. Gupta to submit that this Court
has in many cases held that in case of public injury caused by
an act or omission of the State which is contrary to the rule of
law, any member of the public acting bona fide can maintain
an action for redressal of a public wrong. In the case at hand,
the mala fide and arbitrary grant of premature release to the
respondents-convicts by State action is de hors constitutional
mandate and abets immunity for violence against women. (Vide
Sheonandan Paswan vs. State of Bihar, (1987) 1 SCC 288
(“Sheonandan Paswan”) and Abdul Wahab K. vs. State of
Kerala, (2018) 18 SCC 448 (“Abdul Wahab”).
25.4. Learned counsel next submitted that this Court in Subramanian
Swamy, while adjudicating on the locus of a public-spirited
intervenor in a case requiring interpretation of the Juvenile
Justice (Care and Protection of Children) Act, 2015, held that
the intervenor had sought an interpretation of criminal law
which would have a wide implication beyond the scope of the
parties in that case and hence, allowed the same. Thus, when
larger questions of law are involved, which include interpretation
of statutory provisions for the purpose of grant of premature
release/remission, public-spirited persons who approach the
Court in a bona fide manner, ought not to be prevented from
assisting the Court to arrive at a just and fair outcome.
25.5. Learned counsel Ms. Grover further submitted that in cases
where offences have shocked the conscience of the society,
spread fear and alarm amongst citizens and have impugned
on the secular fabric of society, like in the instant case, this
Court has allowed interventions by members of the public
seeking to bring to the attention of the Court the inaction and
apathy on the part of the State in discharging its duty within the
criminal justice system. It has been held in some cases that
the technical rule of locus cannot shield the arbitrary and illegal
exercise of executive discretion in violation of constitutional
and statutory principles, once the same have been brought
to the attention of this Court.
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26. Learned counsel for the petitioner in Writ Petition (Crl.) No.319 of
2022, Smt. Aparna Bhat submitted that the petitioner has locus
standi to approach this Court against the remission orders dated
10.08.2022. It was submitted that upholding the constitutional values
and protection of all citizens is the responsibility of the State and there
is a legitimate expectation that the State conducts all its actions in
accordance with constitutional values. That the aforesaid petition has
been filed in public interest as the premature release of respondent
Nos.3 to 13 cannot be permitted since the convicts pose a danger to
society. That the petitioners in the connected matters fulfil the wide
ambit of the expression “person aggrieved” as envisaged under PIL
jurisdiction since they are challenging the release of convicts who
have committed heinous and grave offences against society.
26.1. On the issue of locus standi of the petitioners to approach this
Court, the learned counsel relied on para 6 of A.R Antulay vs.
Ramdas Sriniwas Nayak, (1984) 2 SCC 500 (“A.R Antulay”).
Further, it was submitted that in Sheonandan Paswan, this
Court relied on A. R. Antulay and held that if a citizen can set
the machinery of criminal law in motion, she is also entitled
to oppose the unwarranted withdrawal of prosecution in an
offence against society.
26.2. Learned counsel further placed reliance on the dictum of this
Court in Manohar Lal vs. Vinesh Anand, (2001) 5 SCC 407,
wherein it was held that the doctrine of locus standi is totally
foreign to criminal jurisprudence and that society cannot afford
to have a criminal escape his liability. Also, in Ratanlal vs.
Prahlad Jat, (2017) 9 SCC 340, this Court held that a crime
is not merely an offence committed in relation to an individual
but is also an offence against society at large and it is the duty
of the State to punish the offender.
27. Although, we have recorded the detailed submissions made on behalf
of the respective parties, we do not think it is necessary to answer
the point regarding maintainability of the PILs in this case inasmuch
as one of the victims, namely, Bilkis Bano has also filed a writ
petition invoking Article 32 of the Constitution assailing the orders of
remission which we have held to be maintainable. The consideration
of that petition on its merits would suffice in the instant case. Hence,
we are of the view that the question of maintainability of the PILs
[2024] 1 S.C.R. 827
Bilkis Yakub Rasool v. Union of India & Others
challenging the orders of remission in the instant case would not call
for an answer from us owing to the aforesaid reason. As a result, we
hold that consideration of the point on the maintainability of the PILs
has been rendered wholly academic and not requiring an answer
in this case. Therefore, the question regarding maintainability of a
PIL challenging orders of remission is kept open to be considered
in any other appropriate case.
28. Before we consider point No.3, we shall deal with the concept of
remission.
Remission : Scope & Ambit
29. Krishna Iyer, J. in Mohammad Giasuddin vs. State of A.P., (1997) 3
SCC 287, quoted George Bernard Shaw the famous satirist who said,
“If you are to punish a man retributively, you must injure him. If you
are to reform him, you must improve him and, men are not improved
by injuries.” According to him, humanity today views sentencing as a
process of reshaping a person who has deteriorated into criminality
and the modern community has a primary stake in the rehabilitation
of the offender as a means of social defence.
29.1. Further, quoting a British Buddhist-Christian Judge, it was
observed that in the context of karuna (compassion) and
punishment for karma (bad deeds), ‘The two things are not
incompatible. While an accused is punished for what he has
done, a quality of what is sometimes called mercy, rather
than an emotional hate against the man for doing something
harmful must be deserved. This is what compassion is about.’
30. Learned senior counsel Sri Sidharth Luthra, drew our attention to
the principles covering grant of remission and distinguished it from
concepts, such as commutation, pardon, and reprieve, with reference
to a judgment of this Court in State (Govt. of NCT of Delhi) vs.
Prem Raj, (2003) 7 SCC 121 (“Prem Raj”). Articles 72 and 161 deal
with clemency powers of the President of India and the Governor
of a State, and also include the power to grant pardons, reprieves,
respites or remissions of punishment or to suspend, remit or commute
the sentences in certain cases. The power under Article 72 inter alia
extends to all cases where the punishment or sentence is for an
offence against any law relating to a matter to which the executive
power of the Union extends and in all cases where the sentence
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is a sentence of death. Article 161 states that the Government of
a State shall have the power to grant pardons, reprieves, respites
or remissions of punishment or to suspend, remit or commute the
sentence of any person convicted of any offence against any law
relating to a matter to which the executive power of the State extends.
It was observed in the said judgment that the powers under Articles
72 and 161 of the Constitution of India are absolute and cannot be
fettered by any statutory provision, such as, Sections 432, 433 or
433-A of the CrPC or by any prison rule.
30.1. It was further observed that a pardon is an act of grace,
proceeding from the power entrusted with the execution of the
law, which exempts the individual on whom it is bestowed from
the punishment the law inflicts for a crime he has committed. It
affects both the punishment prescribed for the offence and the
guilt of the offender. But pardon has to be distinguished from
“amnesty” which is defined as a “general pardon of political
prisoners; an act of oblivion”. An amnesty would result in
the release of the convict but does not affect disqualification
incurred, if any. ‘Reprieve’ means a stay of execution of a
sentence, a postponement of a capital sentence. Respite
means awarding a lesser sentence instead of the penalty
prescribed in view of the fact that the accused has had no
previous conviction. It is something like a release on probation
for good conduct under Section 360 of the CrPC. On the other
hand, remission is reduction of a sentence without changing its
character. In the case of a remission, the guilt of the offender
is not affected, nor is the sentence of the court, except in the
sense that the person concerned does not suffer incarceration
for the entire period of the sentence, but is relieved from
serving out a part of it. Commutation is change of a sentence
to a lighter sentence of a different kind. Section 432 empowers
the appropriate Government to suspend or remit sentences.
30.2. Further, a remission of sentence does not mean acquittal and an
aggrieved party has every right to vindicate himself or herself.
In this context, reliance was placed on Sarat Chandra Rabha
vs. Khagendranath Nath, AIR 1961 SC 334 (“Sarat Chandra
Rabha”), wherein a Constitution Bench of this Court while
distinguishing between a pardon and a remission observed that
an order of remission does not wipe out the offence; it also does
not wipe out the conviction. All that it does is to have an effect
[2024] 1 S.C.R. 829
Bilkis Yakub Rasool v. Union of India & Others
on the execution of the sentence; though ordinarily a convicted
person would have to serve out the full sentence imposed
by a court, he need not do so with respect to that part of the
sentence which has been ordered to be remitted. An order of
remission thus, does not in any way interfere with the order of
the court; it affects only the execution of the sentence passed
by the court and frees the convicted person from his liability
to undergo the full term of imprisonment inflicted by the court
even though the order of conviction and sentence passed by
the court still stands as it is. The power to grant remission is
an executive power and cannot have the effect which the order
of an appellate or revisional court would have of reducing the
sentence passed by the trial court and substituting in its place
the reduced sentence adjudged by the appellate or revisional
court. According to Weater’s Constitutional Law, to cut short
a sentence by an act of clemency is an exercise of executive
power which abridges the enforcement of the judgment but
does not alter it qua the judgment.
30.3. Reliance was placed on Mahender Singh, to urge that a
right to be considered for remission, keeping in view the
constitutional safeguards of a convict under Articles 20 and
21 of the Constitution of India, must be held to be a legal one.
Such a legal right emanates from not only the Prisons Act but
also from the Rules framed thereunder. Although no convict can
be said to have any constitutional right for obtaining remission
in his sentence, the policy decision itself must be held to have
conferred a right to be considered therefor. Whether by reason
of a statutory rule or otherwise if a policy decision has been
laid down, the persons who come within the purview thereof
are entitled to be treated equally, vide State of Mysore vs. H.
Srinivasmurthy, (1976) 1 SCC 817 (“H. Srinivasmurthy”).
30.4. In Mahender Singh, this Court was considering the correctness
of a judgment of the Punjab and Haryana High Court in which a
circular/letter issued by the State of Haryana laying down criteria
for premature release of the prisoners had been declared to be
unconstitutional. In the above context, this Court considered
the right of the convict to be considered for remission and not
on what should be the criteria when the matter was taken up
for grant thereof.
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30.5. Satish was pressed into service to contend that the length of
the sentence or the gravity of the original crime cannot be the
sole basis for refusing premature release. Any assessment
regarding a predilection to commit crime upon release must
be based on antecedents as well as conduct of the prisoner
while in jail, and not merely on his age or apprehensions of
the victims and witnesses. It was observed that although, a
convict cannot claim remission as a matter of right, once a
law has been made by the appropriate legislature, it is not
open for the executive authorities to surreptitiously subvert its
mandate. It was further observed that where the authorities
are found to have failed to discharge their statutory obligations
despite judicial directions, it would then not be inappropriate
for a constitutional court while exercising its powers of judicial
review to assume such task onto itself and direct compliance
through a writ of mandamus. Considering that the petitioners
therein had served nearly two decades of incarceration and
had thus suffered the consequences of their actions, a balance
between individual and societal welfare was struck by granting
the petitioners therein conditional premature release, subject
to their continuing good conduct. In the said case, a direction
was issued to the State Government to release the prisoners
therein on probation in terms of Section 2 of the U.P. Prisoners
Release on Probation Act, 1938 within a period of two weeks.
The respondent State was reserved liberty with the overriding
condition that the said direction could be reversed or recalled
in favour of any party or as per the petitioner therein.
31. The following judgments of this Court are apposite to the concept
of remission:
(a) In Maru Ram, a Constitution Bench considered the validity of
Section 433-A of the CrPC. KrishnaIyer, J. speaking for the
Bench observed, “Ordinarily, where a sentence is for a definite
term, the calculus of remissions may benefit the prisoner to
instant release at the point where the subtraction results in
zero”. However, “when it comes to life imprisonment, where
the sentence is indeterminate and of a n uncertain duration,
the result of subtraction from an uncertain quantity is still an
uncertain quantity and release of the prisoner cannot follow
except on some fiction of quantification of a sentence of
uncertain duration.
[2024] 1 S.C.R. 831
Bilkis Yakub Rasool v. Union of India & Others
(i) Referring to Gopal Vinayak Godse vs. State of
Maharashtra, (1961) 3 SCR 440, it was observed that
the said judgment is an authority for the proposition that a
sentence of imprisonment for life is one of “imprisonment
for the whole of the remaining period of the convicted
person’s natural life”, unless the said sentence is committed
or remitted by an appropriate authority under the relevant
provisions of law.
(ii) In Gopal Vinayak Godse, a distinction was drawn between
remission, sentence and life sentence. Remission limited
a time, helps computation but does not ipso jure operate
as release of the prisoner. But, when the sentence
awarded by the Judge is for a fixed term, the effect of
remissions may be to scale down the term to be endured
and reduce it to nil, while leaving the factum and quantum
of sentence intact. However, when the sentence is a life
sentence, remissions, quantified in time, cannot reach
a point of zero. Since Section 433-A deals only with life
sentences, remissions cannot entitle a prisoner to release.
It was further observed that remission, in the case of life
imprisonment, ripens into a reduction of sentence of the
entire balance only when a final release order is made. If
this is not done, the prisoner will continue in custody. The
reason is, that life sentence is nothing less than life long
imprisonment and remission vests no right to release when
the sentence is life imprisonment. Nor is any vested right
to remission cancelled by compulsory fourteen years jail
life as a life sentence is a sentence for whole life.
(iii) Interpreting Section 433-A it was observed that there are
three components in it which is in the nature of saving
clause. Firstly, the CrPC generally governs matters covered
by it. Secondly, if a special or local law exists covering the
same area, the latter law will be saved and will prevail,
such as short sentencing measures and remission schemes
promulgated by various States. The third component is, if
there is a specific provision to the contrary then, whether
it would override the special or local law. It was held that
Section 433-A picks out of a mass of imprisonment cases
a specific class of life imprisonment cases and subjects it
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explicitly to a particularized treatment. Therefore, Section
433-A applies in preference to any special or local law. This
is because Section 5 of the CrPC expressly declares that
specific provision, if any, to the contrary will prevail over
any special or local law. Therefore, Section 433-A would
prevail and escape exclusion of Section 5. The Constitution
Bench concluded that Section 433-A is supreme over
the remission rules and short-sentencing statutes made
by various States. Section 433-A does not permit parole
or other related release within a span of fourteen years.
(iv) It was further observed that criminology must include
victimology as a major component of its concerns. When a
murder or other grievous offence is committed the victims
or other aggrieved persons must receive reparation and
social responsibility of the criminal to restore the loss or
heal the injury which is partof the punitive exercise which
means the length of the prison term is no reparation to
the crippled or bereaved.
(v) Fazal Ali, J. in his concurring judgment in Maru Ram
observed that crime is rightly described as an act of
warfare against the community touching new depths of
lawlessness. According to him, the object of imposing
deterrent sentence is three-fold. While holding that the
deterrent form of punishment may not be a most suitable
or ideal form of punishment yet, the fact remains that the
deterrent punishment prevents occurrence of offence. He
further observed that Section 433-A is actually a social
piece of legislation which by one stroke seeks to prevent
dangerous criminals from repeating offences and on the
other hand protects the society from harm and distress
caused to innocent persons. While opining that where
section 433-A applies, no question of reduction of sentence
arises at all unless the President of India or the Governor
of a State choose to exercise their wide powers under
Article 72 or Article 161 of the Constitution respectively
which also have to be exercised according to sound legal
principles as, any reduction or modification in the deterrent
punishment would, far from reforming the criminal, be
counter-productive.
[2024] 1 S.C.R. 833
Bilkis Yakub Rasool v. Union of India & Others
(b) Mohinder Singh is a case which arose under Section 432 on
remission of sentence in which the difference between the terms
`bail’, `furlough’ and `parole’ having different connotations were
discussed. It was observed that furloughs are variously known as
temporary leaves, home visits or temporary community release
and are usually granted when a convict is suddenly faced with
a severe family crisis such as death or grave illness in the
immediate family and often the convict/inmate is accompanied
by an officer as part of the terms of temporary release of special
leave which is granted to a prisoner facing a family crisis. Parole
is a release of a prisoner temporarily for a special purpose or
completely before the expiry of the sentence or on promise
of good behaviour. Conditional release from imprisonment is
to entitle a convict to serve remainder of his term outside the
confines of an institution on his satisfactorily complying all terms
and conditions provided in the parole order.
(c) In Poonam Latha vs. M.L. Wadhwan, (1987) 3 SCC 347
(“Poonam Latha”), it was observed that parole is a professional
release from confinement but it is deemed to be part of
imprisonment. Release on parole is a wing of reformative
process and is expected to provide opportunity to the prisoner
to transform himself into a useful citizen. Parole is thus, a
grant of partial liberty or lessening of restrictions to a convict
prisoner but release on parole does not change the status of the
prisoner. When a prisoner is undergoing sentence and confined
in jail or is on parole or furlough his position is not similar to a
convict who is on bail. This is because a convict on bail is not
entitled to the benefit of the remission system. In other words,
a prisoner is not eligible for remission of sentence during the
period he is on bail or his sentence is temporarily suspended.
Therefore, such a prisoner who is on bail is not entitled to get
remission earned during the period he is on bail.
32. Apart from the constitutional provisions, there are also provisions of
the CrPC which deal with remission of convicts. Sections 432, 433,
433A and 435 of the CrPC are relevant and read as under:
“432. Power to suspend or remit sentences.— (1)
When any person has been sentenced to punishment
for an offence, the appropriate Government may, at any
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time, without conditions or upon any conditions 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.
(2) Whenever an application is made to the appropriate
Government for the suspension or 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 as to whether the
application should be granted or refused, together with
his reasons for such opinion and also to forward with the
statement of such opinion a certified copy of the record
of the trial or of such record thereof as exists.
(3) If any condition on which a sentence has been
suspended or remitted is, in the opinion of the appropriate
Government, not fulfilled, the appropriate Government may
cancel the suspension or remission, and thereupon the
person in whose favour the sentence has been suspended
or remitted may, if at large, be arrested by any police officer,
without warrant and remanded to undergo the unexpired
portion of the sentence.
(4) The condition on which a sentence is suspended or
remitted under this section may be one to be fulfilled by
the person in whose favour the sentence is suspended
or remitted, or one independent of his will.
(5) The appropriate Government may, by general rules
or special orders, give directions as to the suspension of
sentences and the conditions on which petitions should
be presented and dealt with:
Provided that in the case of any sentence (other than a
sentence of fine) passed on a male person above the
age of eighteen years, no such petition by the person
sentenced or by any other person on his behalf shall be
entertained, unless the person sentenced is in jail, and—
(a) where such petition is made by the person sentenced,
it is presented through the officer in charge of the
jail; or
[2024] 1 S.C.R. 835
Bilkis Yakub Rasool v. Union of India & Others
(b) where such petition is made by any other person,
it contains a declaration that the person sentenced
is in jail.
(6) The provisions of the above sub-sections shall also
apply to any order passed by a Criminal Court under any
section of this Code or of any other law which restricts
the liberty of any person or imposes any liability upon him
or his property.
(7) In this section and in Section 433, the expression
“appropriate Government” means,—
(a) in cases where the sentence is for an offence against,
or the order referred to in sub-section (6) is passed
under, any law relating to a matter to which the
executive power of the Union extends, the Central
Government;
(b) in other cases, the Government of the State within
which the offender is sentenced or the said order is
passed.
433. Power to commute sentence.— The appropriate
Government may, without the consent of the person
sentenced, commute—
(a) a sentence of death, for any other punishment
provided by the Indian Penal Code (45 of 1860);
(b) a sentence of imprisonment for life, for imprisonment
for a term not exceeding fourteen years or for fine;
(c) a sentence of rigorous imprisonment, for simple
imprisonment for any term to which that person might
have been sentenced, or for fine;
(d) a sentence of simple imprisonment, for fine.
433A. Restriction on powers of remission or
commutation in certain cases.— Notwithstanding
anything contained in Section 432, where a sentence of
imprisonment for life is imposed on conviction of a person
for an offence for which death is one of the punishments
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provided by law, or where a sentence of death imposed on
a person has been commuted under Section 433 into one
of imprisonment for life, such person shall not be released
from prison unless he had served at least fourteen years
of imprisonment.
435. State Government to act after consultation with
Central Government in certain cases.— (1) The powers
conferred by Sections 432 and 433 upon the State
Government to remit or commute a sentence, in any case
where the sentence is for an offence—
(a) which was investigated by the Delhi Special Police
Establishment constituted under the Delhi Special
Police Establishment Act, 1946 (25 of 1946), or by
any other agency empowered to make investigation
into an offence under any Central Act other than
this Code, or
(b) which involved the misappropriation or destruction of,
or damage to, any property belonging to the Central
Government, or
(c) which was committed by a person in the service of
the Central Government while acting or purporting
to act in the discharge of his official duty,
shall not be exercised by the State Government except
after consultation with the Central Government.
(2) No order of suspension, remission or commutation of
sentences passed by the State Government in relation to
a person, who has been convicted of offences, some of
which relate to matters to which the executive power of the
Union extends, and who has been sentenced to separate
terms of imprisonment which are to run concurrently, shall
have effect unless an order for the suspension, remission
or commutation, as the case may be, of such sentences
has also been made by the Central Government in relation
to the offences committed by such person with regard to
matters to which the executive power of the Union extends.”
[2024] 1 S.C.R. 837
Bilkis Yakub Rasool v. Union of India & Others
32.1. Sub-section (1) of Section 432 is an enabling provision 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. The pertinent provision involved in
this case is sub-section (2) which deals with an application
made to the appropriate Government for the suspension or
remission of a sentence and 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 as to,
whether, the application should be granted or refused, together
with his reasons for such opinion and also to forward with the
statement of such opinion a certified copy of the record of the
trial or of such record thereof as exists. Sub-section (3) deals
with cancellation of the suspension or remission in the event
of there being any non-fulfilment of any condition imposed by
the appropriate Government whereupon the person in whose
favour the sentence has been suspended or remitted, may be
arrested by the police officer, without warrant and remanded
to undergo the unexpired portion of the sentence, if such a
person is at large. Sub-section (4) states that the condition on
which a sentence is suspended or remitted under this section
may be one to be fulfilled by the person in whose favour the
sentence is suspended or remitted, or one independent of
his will. The appropriate Government may, by general rules
or special orders, give directions as to the suspension of
sentences and the conditions on which petitions should be
presented and dealt withvide sub-section (5) of Section 432
of the CrPC. The proviso to sub-section (5) states that in the
case of any sentence (other than a sentence of fine) passed
on a male person above the age of eighteen years, no such
petition by the person sentenced or by any other person on
his behalf shall be entertained, unless the person sentenced
is in jail, and it is presented through the officer in-charge of
the jail; or where such petition is made by any other person,
it contains a declaration that the person sentenced is in jail.
Sub-section (6) of Section 432 states that the provisions of
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this Section would apply to any order passed by a Criminal
Court under any section of the CrPC or of any other law which
restricts the liberty of any person or imposes any liability upon
him or his property.
32.2. The expression “appropriate Government” used in Section
432 as well as in Section 433, is defined in sub-section (7) of
Section 432. It expresses that in cases where the sentence is
for an offence against, or the order referred to in sub-section
(6) is passed under, any law relating to a matter to which the
executive power of the Union extends, the Central Government;
and in other cases, the Government of the State within which
the offender is sentenced or the said order is passed.
32.3. Section 433-A is a restriction on the powers of remission or
commutation in certain cases. It begins with a non-obstante
clause and states that notwithstanding anything contained
in Section 432, where a sentence of imprisonment for life is
imposed on conviction of a person for an offence for which
death is one of the punishments provided by law, or where a
sentence of death imposed on a person has been commuted
under Section 433 into one of imprisonment for life, such
person shall not be released from prison unless he had served
at least fourteen years of imprisonment.
32.4. Section 434 states that the powers conferred by Sections 432
and 433 upon the State Government may in case of sentences
of death also be exercised by the Central Government
concurrently.
32.5. The necessity for the State Government to act in consultation
with the Central Government in certain cases is mandated in
Section 435. The powers conferred by Sections 432 and 433
upon the State Government to remit or commute a sentence,
in any case where the sentence is for an offence (a) which
was investigated by the Delhi Special Police Establishment
constituted under the Delhi Special Police Establishment Act,
1946, or by any other agency empowered to make investigation
into an offence under any Central Act other than the CrPC,
or(b) which involved the misappropriation or destruction of, or
damage to, any property belonging to the Central Government,
or (c) which was committed by a person in the service of the
[2024] 1 S.C.R. 839
Bilkis Yakub Rasool v. Union of India & Others
Central Government while acting or purporting to act in the
discharge of his official duty, shall not be exercised by the
State Government except after consultation with the Central
Government. Sub-section (2) of Section 435 states that no
order of suspension, remission or commutation of sentences
passed by the State Government in relation to a person, who
has been convicted of offences, some of which relate to matters
to which the executive power of the Union extends, and who
has been sentenced to separate terms of imprisonment which
are to run concurrently, shall have effect unless an order for
the suspension, remission or commutation, as the case may
be, of such sentences has also been made by the Central
Government in relation to the offences committed by such
person with regard to matters to which the executive power
of the Union extends.
With the above backdrop of provisions, we move to consider Point
No.3.
Point No.3 : Whether the Government of State of Gujarat was
competent to pass the impugned orders of remission?
33. The point for consideration revolves around the definition of the
expression “appropriate Government”. In other words, whether the
first respondent – State of Gujarat was competent to pass the orders
of remission in the case of respondent Nos.3 to 13 herein is the
question. The meaning and import of the expression “appropriate
Government” has to be discerned from the judgments of this Court
in the light of sub-section (7) of Section 432 of the CrPC.
33.1. The contentions raised by the learned counsel for the petitioner
in Writ Petition (Crl.) No.491 of 2022 as well as the arguments
of learned ASG appearing for Union of India as well as State
of Gujarat on this aspect need not be reiterated.
33.2. The expression “appropriate Government” no doubt has been
defined in sub-section (7) of Section 432 to mean that in cases
where the sentence is for an offence against, or the order
referred to in sub-section (6) is passed under, any law relating
to a matter to which the executive power of the Union extends,
the Central Government; in other cases, the Government of
the State within which the offender is sentenced or the said
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order is passed. The expression “appropriate Government”
also finds place in sub-section (1) of Section 432 which, as
already discussed above, 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.
33.3. Sub-section (1) of Section 432 of the CrPC deals with a power
vested with the appropriate Government which is an enabling
power. The 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 to
the appropriate Government for the suspension or remission
of a sentence such as in the instant case by a convict, 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 vide sub-section
(2) of Section 432 of the CrPC.
33.4. On a combined reading of sub-sections (1) and (2) of Section
432, it is apparent that the conviction and sentence of the
Court which had tried the case assumes significance and
the appropriate Government may have to seek the opinion of
the Presiding Judge of the Court before which the conviction
took place, before passing an order of remission. This is
particularly so when an application is filed by or on behalf of a
convict seeking remission. Therefore, logically the expression
appropriate Government in clause (b) of sub-section (7) of
Section 432 also states that the Government of the State within
which the offender is sentenced or the said order is passed
which is the appropriate Government. The aforesaid consistency
is significant inasmuch as the intent of the Parliament is, it is
only the Government of the State within which the offender
was sentenced which is competent to consider an application
for remission and pass an order remitting the sentence of a
convict. This clearly means that the place of occurrence of
the incident or place of imprisonment of the convict are not
relevant considerations and the same have been excluded
[2024] 1 S.C.R. 841
Bilkis Yakub Rasool v. Union of India & Others
from the definition of the expression appropriate Government
in clause (b) of sub-section (7) of Section 432. If the intention
of the Parliament was that irrespective of the Court before
which the trial and conviction had taken place, the order of
remission can be considered by the Government within whose
territorial jurisdiction the offence has been committed or the
offender is imprisoned, the same would have been indicated
by the definition. On the contrary, the definition of appropriate
Government is otherwise. The intention of the Parliament is
that the Government of the State within which the offender
was tried and sentenced, is the appropriate Government to
consider either under sub-section (1) of Section 432 of the
CrPC or on an application made by the convict for remission
of the sentence under sub-section (2) of Section 432 of the
CrPC. This places emphasis on the place of trial and sentence
of the offender rather than the place or location where the
crime was committed. Such an interpretation would also
include a situation, such as in the present case, where not only
the investigation but also the trial of respondents No.3 to 13
herein was transferred from the State of Gujarat to the State of
Maharashtra and particularly to the Special Court at Mumbai.
Thus, the aforesaid definition also takes within its scope and
ambit a circumstance wherein the trial is transferred by this
Court for reasons to be recorded and which is in the interest
of justice from one State to another State.
33.5. There may be various reasons for transferring of a trial from
a competent Court within the territorial jurisdiction of one
State to a Court of equivalent jurisdiction in another State, as
has been done in the instant case. But what is certain is that
the transfer of the trial to a court in another State would be
a relevant consideration while considering as to which State
has the competency to pass an order of remission. Thus,
the definition of appropriate Government in sub-section (7)
of Section 432 clearly indicates that the Government of the
State within which the offender is sentenced, is the appropriate
Government to pass an order of remission.
33.6. 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,
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there can be no further doubt about the meaning of the
expression appropriate Government. But according to us, 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 under Section 432 of the CrPC.
Therefore, 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.
33.7. In this regard, the following judgments of this Court may be
relied upon:
(a) In Ratan Singh, on discussing Section 401 of the erstwhile
CrPC (corresponding to Section 432 of the present CrPC)
it was observed that the test to determine the appropriate
Government is to locate the State where the accused was
convicted and sentenced and the Government of that State
would be the appropriate Government within the meaning of
Section 401 of the CrPC. In the said case, it was observed
that the accused was convicted and sentenced in the
State of Madhya Pradesh and though he was discharging
his sentence in a jail in Amritsar in the State of Punjab,
the appropriate Government under section 401 (1) of the
erstwhile CrPC to exercise the discretion for remission of
the sentence was the State of Madhya Pradesh. It was
further observed that even under the new Code i.e. CrPC,
1973 as per sub-section (7) of Section 432 thereof, the
phrase appropriate Government had the same meaning
as the latter provision had been bodily lifted from Section
402(3) of the erstwhile CrPC. On a review of the case
law and the statutory provisions of the CrPC the following
propositions were culled out:
“9. …(1) that a sentence of imprisonment for life does
not automatically expire at the end of 20 years including
the remissions, because the administrative rules framed
under the various Jail Manuals or under the Prisons Act
cannot supersede the statutory provisions of the Indian
[2024] 1 S.C.R. 843
Bilkis Yakub Rasool v. Union of India & Others
Penal Code. A sentence of imprisonment for life means
a sentence for the entire life of the prisoner unless the
appropriate Government chooses to exercise its discretion
to remit either the whole or a part of the sentence under
Section 401 of the Code of Criminal Procedure;
(2) that the appropriate Government has the undoubted
discretion to remit or refuse to remit the sentence and
where it refuses to remit the sentence no writ can be issued
directing the State Government to release the prisoner.
(3) that the appropriate Government which is empowered
to grant remission under Section 401 of the Code of
Criminal Procedure is the Government of the State where
the prisoner has been convicted and sentenced, that is to
say, the transferor State and not the transferee State where
the prisoner may have been transferred at his instance
under the Transfer of Prisoners Act; and
(4) that where the transferee State feels that the accused
has completed a period of 20 years it has merely to
forward the request of the prisoner to the concerned State
Government, that is to say, the Government of the State
where the prisoner was convicted and sentenced and
even if this request is rejected by the State Government
the order of the government cannot be interfered with by
a High Court in its writ jurisdiction.”
(b) The aforesaid decision was reiterated in Hanumant Dass.
In the said case, the incident had occurred in Dharmshala
and when the matter was pending before the Sessions
Court, Dharmshala in Himachal Pradesh at the instance
of the complainant, on an application moved before this
Court, the case was transferred from Himachal Pradesh
to the Sessions Court at Gurdaspur in Punjab.
(c) Insofar as clemency power of a Governor of a State
under Article 161 of the Constitution to grant remission
to prisoners convicted by courts outside the State but
undergoing sentences in jails in the State is concerned,
this Court in M.T. Khan observed that the appropriate
government on whose advice the Governor has to act
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while granting remission to such a prisoner was to be
decided on the basis of the aid and advice of the Council
of Ministers of the State which had convicted the accused
and not the State where the accused/convict is transferred
to be lodged in the jail. In this case it was held that since
the judgment of conviction had been passed in the States
of Madhya Pradesh and Maharashtra and the convict was
lodged in the State of Andhra Pradesh, the appropriate
Governments were the States of Madhya Pradesh and
Maharashtra even under Article 161 of the Constitution.
Hence, the appeals filed by the Government of Andhra
Pradesh were allowed.
(d) V. Sriharan is a judgment of a Constitution Bench of this
Court wherein the Government of Tamil Nadu had proposed
to remit the sentence of life imprisonment to release
seven convicts who were convicted in the Rajiv Gandhi
assassination case –State, through Superintendent of
Police, CBI vs. Nalini, (1999) 5 SCC 253 (“Nalini”). While
discussing the phrase “appropriate Government”, it was
observed that barring cases falling under Section 432(7)
(a), in all other cases where the offender is sentenced
or the sentence or order is passed within the territorial
jurisdiction of the State concerned, that State Government
would be the appropriate Government. Following the
earlier decisions it was observed that even if an offence
is committed in State-A, but, the trial takes place and the
sentence is passed in State-B, it is the latter State which
shall be the appropriate Government.
33.8. In our view, on a plain reading of sub-section (7) of Section 432
of the CrPC and considering the judgments of this Court, it is
the State of Maharashtra, which had the jurisdiction to consider
the application for remission vis-à-vis respondent Nos.3 to 13
herein as they were sentenced by the Special Court, Mumbai.
Hence the applications filed by respondent Nos.4 to 13 seeking
remission had to be simply rejected by the State of Gujarat
owing to lack of jurisdiction to consider them. This is because
Government of Gujarat is not the appropriate Government
within the meaning of the aforesaid provision. The High Court
of Gujarat was therefore right in its order dated 17.07.2019.
[2024] 1 S.C.R. 845
Bilkis Yakub Rasool v. Union of India & Others
33.9. 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 under Section 432 of
the CrPC, the orders of remission would have no legs to stand.
On the aspect of jurisdiction and nullity of orders passed by an
authority, the decision of the House of Lords in Anisminic vs.
Foreign Compensation Commission, (1969) 2 WLR 163 :
(1969) 1 All ER 208 (“Anisminic”), is of significance and the
same can be cited by way of analogy. The House of Lords in
the said case held that the Foreign Compensation Commission
had committed an error which was a jurisdictional error as its
decision was based on a matter which it had no right to take
into account and so its decision was a nullity and subject to
judicial review. Although in Anisminic, the scope and ambit
of the concept of “jurisdictional error” or “error of jurisdiction”
was very much extended, and of a very broad connotation,
in the instant case we are primarily dealing with a narrower
concept i.e. when an authority, which is the Government of
State of Gujarat in the instant case, was lacking jurisdiction
to consider the applications for remission. Just as an order
passed by a Court without jurisdiction is a nullity, in the same
vein, an order passed or action taken by an authority lacking
in jurisdiction is a nullity and is non est in the eye of law.
33.10. On that short ground alone the orders of remission have to
be quashed. This aspect of competency of the Government
of State of Gujarat to pass the impugned orders of remission
goes to the root of the matter and the impugned orders of
remission are lacking in competency and hence a nullity. The
writ petition filed by the victim would have to succeed on this
reasoning. But the matter does not rest at that.
34. Learned ASG appearing for respondent Nos.1 and 2, has placed
strong reliance on the order of this Court dated 13.05.2022 to
contend that in view of the directions issued by this Court in Writ
Petition No.135 of 2022, respondent No.1 – State of Gujarat had to
consider the applications for remission filed by respondents No.3
to 13 herein. Further, the consideration had to be made as per
the 1992 Policy of Remission of the State of Gujarat. Hence, the
appropriate Government in the case of respondent Nos.3 to 13 was
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the Government of Gujarat in terms of the order of this Court dated
13.05.2022. It was further contended that the offences had also
occurred within the State of Gujarat. Therefore, the first respondent
– State of Gujarat had no option but to consider the applications
filed by respondent Nos.3 to 13 herein and pass the orders dated
10.08.2022 granting remission to them.
35. Learned counsel for the petitioner in Writ Petition (Crl.) No.491 of
2022 has countered the above submission contending that one of the
convicts-Radheshyam Bhagwandas Shah, respondent No.3 herein,
had initially approached the High Court of Gujarat by filing Criminal
Application No.4573 of 2019 for a direction to consider his application
for remission by the State of Gujarat. By order dated 17.07.2019
the High Court disposed of Criminal Application No.4573 of 2019 by
observing that he should approach the appropriate Government being
the State of Maharashtra. His second such application before the
Gujarat High Court was also dismissed vide order dated 13.03.2020.
That when the said prisoner filed Writ Petition (Crl.) No.135 of 2022
before this Court, he did not disclose the following facts:
(i) that within fourteen days of the order dated 17.07.2019, he had
approached the Government of Maharashtra vide application
dated 01.08.2019;
(ii) that the CBI had given a negative recommendation vide its
letter dated 14.08.2019;
(iii) that the Special Judge (CBI), Mumbai had given a negative
recommendation vide his letter dated 03.01.2020;
(iv) that the Superintendent of Police, Dahod, Gujarat had given a
negative recommendation vide his letter dated 03.02.2020; and,
(v) that the District Magistrate, Dahod, Gujarat had given a negative
recommendation vide his letter dated 19.02.2020.
35.1. Further, the writ petitioner also made a misleading statement
by referring to the order dated 05.08.2013 of the Bombay High
Court in juxtaposition to the order of the Gujarat High Court
dated 17.07.2019 to contend that there was a divergent opinion
between the two High Courts, which aspect constrained him
to file Writ Petition (Crl.) No.135 of 2022 before this Court.
That the order dated 05.08.2013 passed by the Bombay High
Court was dealing with transfer of the convicts in Maharashtra
[2024] 1 S.C.R. 847
Bilkis Yakub Rasool v. Union of India & Others
jail to their parent State (State of Gujarat) that too, in the year
2013,when the issue of remission did not arise at all. But the
said writ petitioner projected as if the two High Courts had
contradicted themselves in their orders and, therefore, he was
constrained to file the writ petition invoking the jurisdiction of
this Court under Article 32 of the Constitution.
35.2. It was contended that on account of the suppression of facts
as well as misleading this Court with erroneous facts, the order
dated 13.05.2022 is vitiated by fraud and is hence a nullity and
the same cannot be binding on the parties to the said order or
to the petitioner Bilkis Bano who, in any case, was not arrayed
as a party in the said writ petition.
36. It is necessary to highlight the salient aspects of the order passed
by this Court in the case of Radheshyam Bhagwandas Shah dated
13.05.2022 in Writ Petition (Crl.) No.135 of 2022. That was a petition
filed by one of the convicts, respondent No.3 herein, seeking a
direction to consider his application for premature release under the
policy dated 09.07.1992 of the State of Gujarat which was existing
at the time of his conviction. The relevant pleadings in the said writ
petition are extracted as under:
“Question of Law:
A. Whether the policy dated 9.7.92, which was existing
at the time of the conviction will prevail for considering
the case of the petitioner for premature release?
B. Whether in view of ‘State of Haryana Vs. Jagdish,
(2010) 4 SCC 216’, a policy which is more liberal and
prevailing would be given preference as compared to
the policy which is sought to be made applicable at
the time of consideration of the cases of premature
release?
× × ×
FACTS OF THE CASE:
× × ×
That at this juncture it would be pertinent to mention
herein that one of the co-accused Ramesh Rupabhai had
approached the Bombay High Court by way of Crl. W.P.
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No.305/2013. In the said order, the Bombay High Court
clarified that the undertrials in this case were lodged in
Maharashtra Jail only because of the fact that at that
time the Trial was pending in the State of Maharashtra
(transferred from Gujarat to Maharashtra by the Supreme
Court). The High Court further clarified that once the Trial
has concluded and the prisoner has been convicted, the
appropriate prison would be the State of Gujarat and
accordingly, the said prisoners were transferred to the
State of Gujarat from the State of Maharashtra...
At this juncture, the petitioner had approached the Gujarat
High Court on the ground that despite he having undergone
more than actual sentence of 14 years, his case was
not being considered by the respondent/authorities for
premature release. The Gujarat High Court vide its order
dated 17.7.19 with great respect took a completely a
diametrically opposite view as that of Bombay High Court
and erroneously held that since the petitioner’s case was
tried in the State of Maharashtra, therefore, his case for
premature release has to be considered by the State of
Maharashtra and not by the State of Gujarat.
Hence the instant Writ Petition under Article 32 of the
Constitution issuing a writ of Mandamus or any other
similar direction to the State of Gujarat praying inter alia
that the case of the petitioner may be considered as per
the policy dated 9.7.92 (i.e. policy existing at the time of
conviction of the petitioner) in the light of settled decision
in “State of Haryana Vs. Jagdish, (2010) 4 SC 216”.
× × ×
PRAYER:
In the light of the above-mentioned facts and circumstances,
the petitioner through this instant writ petition prays before
this Hon’ble Court as under:
A. Issue a writ, order or direction in the nature of
Mandamus to the Respondent/State of Gujarat to
consider the case of the petitioner for premature
release under the policy dated 9.7.92 i.e. the policy
which was existing at the time of conviction.
[2024] 1 S.C.R. 849
Bilkis Yakub Rasool v. Union of India & Others
B. Or in the alternative, issue a writ, order or direction
in the nature of Mandamus to the respondent/Union
of India to consider the case of the petitioner in light
of “UOI Vs. V. Sriharan, (2016) 7 SCC 1.” and
C. Pass any such further Order(s)/direction(s) as this
Hon’ble Court may deem fit and proper in the facts
and circumstances of the case.”
36.1. The aforesaid pleadings do not indicate that State of Gujarat
had no jurisdiction to consider his application for remission.
Also, there was no pleading that he had filed any application
before the Government of Gujarat. Thirdly, there is no mention
that the policy of 09.07.1992 had been cancelled. Moreover,
the said policy was not at all applicable as the writ petitioner
was convicted in Maharashtra State and therefore, Government
of Gujarat was not the appropriate Government.
36.2. On the above basis, this Court passed the order dated
13.05.2022,the relevant portion of which reads as under:
“6. The present petitioner filed his petition for pre-mature
release under Sections 433 and 433A of the Code of
Criminal Procedure, 1973 (hereinafter being referred to
as the “CrPC”) stating that he had undergone more than
15 years 4 months of custody but his petition filed in the
High Court of Gujarat came to be dismissed taking note of
Section 432(7) CrPC and placing reliance on the judgment
of this Court in Union of India vs. V. Sriharan alias
Murugan and Others, (2016) 7 SCC 1, on the premise
that since the trial has been concluded in the State of
Maharashtra, the application for pre-mature release has
to be filed in the State of Maharashtra and not in the
State of Gujarat, as prayed by the petitioner by judgment
impugned dated 17th July 2019.
××× ××× ×××
10. Learned counsel for the respondents has placed
reliance on the judgment of this Court in Union of India
vs. V. Sridharan alias Murugan and Others (supra) and
submits that since the trial has been concluded in the
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State of Maharashtra, taking assistance of Section 432(7)
CrPC, the expression ‘appropriate governmentʼ as referred
to under Section 433 CrPC in the instant case, would be
the State of Maharashtra and accordingly no error has
been committed by the High Court in the order impugned.
11. In our considered view, the submission made by learned
counsel for the respondents is not sustainable for the
reason that 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 purpose for trial and disposal to
the neighbouring State (State of Maharashtra) by an order
dated 06th August, 2004 but after the conclusion of trial and
the prisoner being convicted, stood transferred to the State
where the crime was committed remain the appropriate
Government for the purpose of Section 432(7) CrPC.
12. Indisputedly, in the instant case, the crime was
committed in the State of Gujarat which is the appropriate
Government competent to examine the application filed for
pre-mature release and that is the reason for which the
High Court of Bombay in Criminal Writ Petition No.305 of
2013 filed at the instance of co-accused Ramesh Rupabhai
under its Order dated 5 th August, 2013 declined his
request to consider the application for pre-mature release
and left the application to be examined according to the
policy applicable in the State of Gujarat by the concerned
authorities.
13. The judgment on which the learned counsel for the
respondents has placed reliance may not be of any
assistance for the reason that under Section 432(7) CrPC,
the appropriate Government can be either the Central or
the State Government but there cannot be a concurrent
jurisdiction of two State Governments under Section
432(7) CrPC.
[2024] 1 S.C.R. 851
Bilkis Yakub Rasool v. Union of India & Others
14. In the instant case, once the crime was committed in
the State of Gujarat, after the trial been concluded and
judgment of conviction came to be passed, all further
proceedings 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
stands transferred and concluded for exceptional reasons
under the orders of this Court.
15. Consequently, the petition is allowed. The judgment
impugned dated 17th July, 2019 is set aside.
16. The respondents are directed to consider the application
of the petitioner for pre-mature release in terms of its
policy dated 9th July, 1992 which is applicable on the date
of conviction and may be decided within a period of two
months. If any adverse order is passed, the petitioner is
at liberty to seek remedy available to him under the law.”
36.3. The following aspects are noted by this Court in the order
dated 13.05.2022:
(i) that the crime was committed in the State of Gujarat but
this Court in Transfer Petition (Crl.) No.192 of 2004 had
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 by order dated 06.08.2004.
(ii) that the trial court, Mumbai in Sessions Case No.634 of
2004, on completion of the trial held the said respondent
as well as the other accused guilty and sentenced them
to undergo rigorous imprisonment for life by judgment and
order dated 21.01.2008.
(iii) that one of the co-accused Ramesh Rupabhai had
approached the Bombay High Court by filing Writ Petition
(Crl.) No.305 of 2013 seeking premature release but his
application was dismissed by order 05.08.2013 on the
premise that the crime was committed in the state of
Gujarat and his trial was transferred to the competent
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court in Maharashtra and once the trial had concluded and
sentence has been passed, the appropriate Government
would be the State of Gujarat and accordingly, the
application filed by the said co-accused for premature
release was to be examined as per the policy applicable
in the State of Gujarat.
(iv) that the judgment on which learned counsel for the State
of Gujarat had placed reliance (V.Sriharan) was not of
any assistance for the reason that under Section 432 (7)
of the CrPC, the appropriate Government can be either
Central or State Government but there cannot be a
concurrent jurisdiction of two State Governments under
the said provision.
(v) that once the crime was committed in the State of Gujarat,
after the trial has been concluded and the judgment of
conviction came to be passed, all further proceedings
had 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 order of this Court.
(vi) Consequently, the writ petition was allowed. Further even
in the absence of there being any challenge, the order
dated 17.07.2019 passed by the Gujarat High Court in
a petition filed by the same petitioner (respondent No.3)
under Article 226 of the Constitution was set aside by this
Court in the writ petition filed by him under Article 32 of
the Constitution.
(vii) Further, it was not brought to the notice of this Court that
the policy dated 09.07.1992 had been cancelled and was
no more effective. In the absence of the same, direction
was issued to the State of Gujarat to consider the case
of the petitioner therein for pre-mature release in terms of
the said policy within a period of two months.
36.4. Our inferences on the Order of this Court dated 13.05.2022
passed on the aforesaid writ petition are as under:
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Bilkis Yakub Rasool v. Union of India & Others
(i) that the convict who approached this Court, namely,
Radheshyam Bhagwandas Shah respondent No.3 herein
had stated that he had undergone about 15 years 4 months
of custody;
(ii) that respondent No.3 herein had not stated 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;
(iii) that respondent No.3 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 17.07.2019;
(iv) Respondent No.3 herein who had filed the writ petition
had not disclosed that he had acted upon the order dated
17.07.2019 passed by the Gujarat High Court inasmuch as–
(a) he had approached the Government of Maharashtra
vide application dated 01.08.2019;
(b) the CBI had given a negative recommendation vide
its letter dated 14.08.2019;
(c) the Special Judge (CBI), Mumbai had given a negative
recommendation vide his letter dated 03.01.2020;
(d) the Superintendent of Police, Dahod, Gujarat had
given a negative recommendation vide his letter
dated 03.02.2020; and,
(e) the District Magistrate, Dahod, Gujarat had given
a negative recommendation vide his letter dated
19.02.2020.
(v) that the respondent No.3 had not assailed the order dated
17.07.2019 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.
(vi) Interestingly, in the writ petition, the respondent State of
Gujarat placed reliance on the judgment in V.Sriharan and
contended that the trial had been concluded in the State
of Maharashtra and therefore the expression appropriate
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government under section 432 of the CrPC would be the
State of Maharashtra and that no error had been committed
by the High Court in its order dated 17.07.2019.
(vii) Strangely, this Court held that the aforesaid submission
on behalf of the State of Gujarat was not sustainable as
the crime had been 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) of the Code of Criminal
Procedure, 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 purpose for trial and disposal to the
neighbouring State (State of Maharashtra) by an order
dated 06.08.2004 but after the conclusion of trial and the
prisoner being convicted, stood transferred to the State
where the crime was committed remain the appropriate
Government for the purpose of Section 432(7) Code of
Criminal Procedure.” This portion of the order of this Court
is contrary to the judgments of this Court discussed above.
This implies that the said order is per se per incuriam.
(viii) This Court went on to hold that the High Court of Bombay
had declined to interfere in Criminal Writ Petition No.305
of 2013 filed by the co-accused Ramesh Rupabhai by its
order dated 05.08.2013 without realising what the prayer
in the said writ petition was, which was filed in the year
2013, as at that point of time, the issue of remission had
not arisen at all. The Bombay High Court had declined to
entertain the Writ Petition filed by one of the convicts by
holding to consider his plea for transfer to a jail in State
of Gujarat.
(ix) Interestingly, no review petition was filed against the order
of this Court dated 13.05.2022 by the State of Gujarat for
seeking a review of the said order but the victim – petitioner
in Writ Petition (Crl.) No.491 of 2022 – had filed a review
petition which has been rejected by this Court.
(x) that although the respondent No.3 who approached this
Court as well as the State of Gujarat had termed the order
of the Gujarat High Court dated 17.07.2019 as “impugned
[2024] 1 S.C.R. 855
Bilkis Yakub Rasool v. Union of India & Others
Order”, the said order was not at all impugned or assailed
in the proceedings before this Court. What was filed by
the convict i.e., respondent No.3 before this Court was a
writ petition under Article 32 of the Constitution seeking a
direction to the State of Gujarat to consider his remission
application;
(xi) More significantly, while a reference has been made to
Criminal Writ Petition No.305 of 2013 filed by one of the
co-accused Ramesh Rupabhai in the year 2013 before
the Bombay High Court seeking a direction for transfer
of the convicts from Maharashtra Jail to Gujarat Jail, the
reference to the Order of the Gujarat High Court dated
17.07.2019 dismissing the writ petition filed by respondent
No.3 herein directing him to approach the Maharashtra
State for remission was only in the context of the said order
being “diametrically opposite” to the view of the Bombay
High Court without explaining and by suppression of the
backgrounds under which the two writ petitions were filed
before the respective High Court.
(xii) In fact, there was no pleading or prayer for seeking setting
aside of the Gujarat High Court Order dated 17.07.2019
nor was there any challenge to the said Order. That said
Order had attained finality as no Special Leave Petition
as against the said Order was filed by the writ petitioner,
Radheshyam Bhagwandas Shah respondent No.3 herein
before this Court; rather he had acted upon it. Curiously,
in the writ petition filed under Article 32 of the Constitution,
the Order dated 17.07.2019 has been set aside even in
the absence of there being any prayer thereto nor any
discussion of the same.
(xiii) Further, contrary to Section 432 (7) and the judgements 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 policy dated 09.07.1992. 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
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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.
(xiv) In Sangeet & Another vs. State of Haryana, (2013) 2
SCC 452, this Court speaking through Lokur, J., observed
that a convict undergoing a sentence does not have right to
get a remission of sentence but he certainly does have a
right to have his case considered for the grant of remission.
The term of sentence spanning the life of the convict can
be curtailed by the appropriate Government for good and
valid reasons in exercise of its powers under Section 432 of
the CrPC. The said Section provides for some procedural
and substantive checks on the arbitrary exercise of this
power. While observing that there is no decision of this
Court detailing the procedure to be followed for the exercise
of power under Section 432 of the CrPC, it was stated
that sub-section (2) to sub-section (5) of Section 432 of
the CrPC lay down the basic procedure, which is making
of an application to the appropriate Government for the
suspension or remission of a sentence, either by the convict
or someone on his behalf. Thus, the representation has to
be made to the appropriate Government in terms of the
provisions under Section 432 of the CrPC. It was further
observed that the exercise of power by the appropriate
Government under sub-section (1) of Section 432 of the
CrPC cannot be suo motu for the simple reason that this
sub-section is only an enabling provision. In other words,
the appropriate Government is enabled to “override” a
judicially pronounced sentence, subject to fulfillment of
certain conditions. Those conditions are found either in the
jail manual or in statutory rules. Therefore, sub-section (1)
of Section 432 of the CrPC cannot be read to enable the
appropriate Government to “further override” the judicial
pronouncement over and above what is permitted by the
jail manual or the statutory rules. On such an application
being made, the appropriate Government is required to
approach the Presiding Judge of the Court before or by
which the conviction was made or confirmed to opine (with
reasons) whether the application should be granted or
[2024] 1 S.C.R. 857
Bilkis Yakub Rasool v. Union of India & Others
refused. Thereafter, the appropriate Government may take
a decision on the remission application and pass orders
granting remission subject to some conditions, or refusing
remission. There has to be an application of mind to the
issue of grant of remission and the power of remission
cannot be exercised arbitrarily. It was further observed
that a convict undergoing life imprisonment is expected
to remain in custody till the end of his life, subject to any
remission granted by the appropriate Government under
Section 432 of the CrPC which in turn is subject to the
procedural checks in that Section and the substantive
check in Section 433-Aof the CrPC.
Pursuant to the judgment in Sangeet, the Government of India
vide its communication dated 01.02.2013 made to all the Home
Secretaries of the States and Union Territories, stated that
there is a need to relook at the manner in which remissions
of sentence are made with reference to Section 432 read with
Section 433-A of the CrPC and hence requested that there
should be scrupulous compliance of the aforesaid provisions
and not to grant remission in a wholesale manner. Thereafter,
on 08.05.2013, the Home Department, Government of Gujarat
issued a Circular referring to the decision of this Court dated
20.11.2012 in Sangeet and in order to implement the same
and also taking note of the communication of the Government
of India dated 01.02.2013, the Circular dated 09.07.1992 was
cancelled in following manner:
“… Therefore, the provisions of circular No.JLK/3390/
CM/16/part/2/J dated 09.07.1992 of the Home
Department hereinabove referred to in Srl. No.1,
hereby stand cancelled.”
Thereafter, on 23.01.2014, the State Government constituted
a Committee headed by the Additional Chief Secretary (Home)
for considering the policy and guidelines to be followed for the
purpose of remission and pre-mature release of the prisoners.
After careful consideration, the State Government issued
guidelines/policy for consideration of cases of remission and
premature release of the prisoners. In the said policy, it was
categorically mentioned that “the prisoners who are convicted for
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the crimes” as mentioned in Annexure-I, shall not be considered
for remission. Annexure-I contained the classes of prisoners who
shall not be granted state remission as well as for premature
release. Clause IV (a) and (d) read as follows:
(a) A prisoner or prisoners sentenced for group murder of
two or more persons.
x x x
(d) Prisoners convicted for murder with rape or gang rape.
(xv) Realising that respondent Nos.3 to 13 would not be released
under the Remission Policy dated 23.01.2014, which had
substituted the earlier Policy dated 09.07.1992, which had been
cancelled, the writ petition was filed by respondent No.3 herein
before this Court seeking a specific direction to the State of
Gujarat to consider his case as per the Policy dated 09.07.1992
which had by then been cancelled and substituted by another
Policy dated 23.01.2014.
(xvi) What is the effect of cancellation of the said policy by the State
of Gujarat in light of the judgement of this Court in Sangeet
and the communication of Union of India issued to each of the
states including the State of Gujarat? Does it mean that the
said policy of 09.07.1992 had stood cancelled and therefore
got effaced and erased from the statute book and substituted
by a new policy of 2014 which had to be considered. There
was no pleading or discussion to that effect.
36.5. Thus, by suppressing material aspects and by misleading this
Court, a direction was sought and issued to the respondent
State of Gujarat to consider the premature release or remission
of the writ petitioner, i.e., respondent No.3 on the basis of the
policy dated 09.07.1992.
37. More pertinently, respondent No.3 had suppressed the fact that on
the basis of the judgment of the Gujarat High Court in the writ petition
that he had filed, the convict had acted upon it and had made an
application to the State of Maharashtra for remission on 01.08.2019
and the said application was being processed inasmuch as the
stakeholders had given their opinion on the application, such as,
the Presiding Judge of the court which had convicted the accused;
[2024] 1 S.C.R. 859
Bilkis Yakub Rasool v. Union of India & Others
the Director - CBI as well as the Director General and Inspector
General of Police, State of Maharashtra who were all unanimous in
their opinion inasmuch as they had all negatived grant of remission
to the convict – Radheshyam Bhagwan Das. Suppressing all this,
the writ petition was filed by respondent No.3 invoking Article 32 of
the Constitution and the same was allowed by also setting aside
the Order of the Gujarat High Court dated 17.07.2019 and thereby
setting at naught the steps taken pursuant to the said Order of the
Gujarat High Court.
38. At this stage, we may point out that if respondent No.3 had felt
aggrieved by the order of the Gujarat High Court dated 17.07.2019, 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 remission
application dated 01.08.2019 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.
When the opinions were found to be negative, respondent No.3
filed Writ Petition(Crl.) No.135 of 2022 before this Court seeking a
direction to the State of Gujarat to consider his remission application
suppressing the above material facts. This he could not have done,
thereby misrepresenting and suppressing relevant facts, thus playing
fraud on this Court.
39. We have no hesitation in holding that neither the order of the
Gujarat High Court dated 17.07.2019 could have been challenged
by respondent No.3 or for that matter by anybody else before this
Court in a writ proceeding under Article 32 of the Constitution of India
nor the said order of the High Court could have been set aside in
a proceeding under Article 32 thereof. This proposition of law has
been settled long ago by a nine-Judge bench decision of this Court
in Naresh Shridhar Mirajkar vs. State of Maharashtra, AIR 1967
SC 1, which is binding on us.
39.1. When an oral order of the learned Judge passed in the
original suit of the Bombay High Court was challenged by the
petitioner therein by way of a writ petition under Article 226 of
the Constitution of India before the Bombay High Court, the
writ petition was dismissed by a division bench of the Bombay
High Court on the ground that the impugned order was a
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judicial order of the High Court and was not amenable to writ
jurisdiction under Article 226. Thereafter, the petitioner therein
moved this Court under Article 32 of the Constitution of India
for enforcement of his fundamental rights under Article 19(1)
(a) and (g) of the Constitution of India. This Court observed
that the impugned order was passed by the learned Judge in
the course of trial of a suit before him after hearing the parties.
This Court took the view that the restraint order was passed
to prohibit publication of evidence in the media during the
progress of the trial and could not be construed as imposing
a permanent ban on the publication of the said evidence.
39.2. The question which fell for consideration before this Court was
whether a judicial order passed by the High Court prohibiting
the publication in newspapers of evidence given by a witness
pending the hearing of the suit, was amenable to be corrected
by a Writ of Certiorari of this Court under Article 32 of the
Constitution of India. In the above context, this Court first held
that a judicial verdict pronounced by a court in a matter brought
before it for its decision cannot be said to affect the fundamental
rights of citizens under Article 19(1) of the Constitution of India.
Thereafter, this Court proceeded to hold that if any judicial
order was sought to be attacked on the ground that it was
inconsistent with Article 14 or any other fundamental rights, the
proper remedy to challenge such an order would be by way of
an appeal or revision as may be provided by law. It would not
be open to the aggrieved person to invoke the jurisdiction of
this Court under Article 32 of the Constitution and to contend
that a Writ of Certiorari should be issued to quash such an
order. This Court observed that it would be inappropriate to
allow the petitioners to raise the question about the jurisdiction
of the High Court to pass the impugned order in a proceeding
under Article 32. Rejecting the argument of the petitioners, this
Court held that judicial orders passed by High Courts in or in
relation to proceedings pending before the High Courts are not
amenable to be corrected by this Court exercising jurisdiction
under Article 32 of the Constitution of India. This being the law
of the land, it is binding on all the courts including benches of
lesser coram of this Court.
[2024] 1 S.C.R. 861
Bilkis Yakub Rasool v. Union of India & Others
40. Before proceeding further, it may also be mentioned that it was
only respondent No.3 who had approached this Court by filing a
writ petition under Article 32 of the Constitution of India being Writ
Petition(Crl.) No.135 of 2022, seeking a direction to the State of
Gujarat to consider his pre-mature release. None of the other convicts,
i.e. respondent Nos.4 to 13 had approached this Court or any High
Court seeking such a relief. Therefore, in so far these respondents
are concerned, there was no direction of this Court or any court to
the State of Gujarat to consider their pre-mature release.
41. We are of the considered view that the writ proceedings before this
Court is pursuant to suppression and misleading of this Court and a
result of suppressio veri suggestio falsi. Hence, in our view, the said
order was obtained by fraud played on this Court and hence, is a
nullity and non est in law. In view of the aforesaid discussion, we hold
that consequently the order dated 13.05.2022 passed by this Court
in Writ Petition (Crl.) No.135 of 2022 in the case of Radheshyam
Bhagwandas Shah is hit by fraud and is a nullity and non est in
the eye of law and therefore cannot be given effect to and hence,
all proceedings pursuant to the said order are vitiated.
42. It is trite that fraud vitiates everything. It is a settled proposition
of law that fraud avoids all judicial acts. In S.P. Chengalvaraya
Naidu vs. Jagannath (Dead) through LRs, (1994) 1 SCC 1 (“S.P.
Chengalvaraya Naidu”), it has been observed that “fraud avoids all
judicial acts, ecclesiastical or temporal.” Further, “no judgment of a
court, no order of a minister would be allowed to stand if it has been
obtained by fraud. Fraud unravels everything” vide Lazarus Estates
Ltd. vs. Beasley, (1956) 1 ALL ER 341 (“Lazarus Estates Ltd.”).
43. It is well-settled that writ jurisdiction is discretionary in nature and
that the discretion must be exercised equitably for promotion of
good faith vide State of Maharashtra vs. Prabhu, (1994) 2 SCC
481 (“Prabhu”). This Court has further emphasized that fraud
and collusion vitiate the most solemn precedent in any civilized
jurisprudence; and that fraud and justice never dwell together (fraus
et jus nunquam cohabitant). This maxim has never lost its lustre over
the centuries. Thus, any litigant who is guilty of inhibition before the
Court should not bear the fruit and benefit of the court’s orders. This
Court has also held that fraud is an act of deliberation with a desire
to secure something which is otherwise not due. Fraud is practiced
with an intention to secure undue advantage. Thus, an act of fraud
on courts must be viewed seriously.
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43.1. Further, fraud can be established when a false representation
has been made (i) knowingly, or (ii) without belief in its truth,
or (iii), recklessly, being careless about whether it be true or
false. While suppression of a material document would amount
to a fraud on the Court, suppression of material facts vital
to the decision to be rendered by a court of law is equally
serious. Thus, once it is held that there was a fraud in judicial
proceedings all advantages gained as a result of it have to be
withdrawn. In such an eventuality, doctrine of res judicata or
doctrine of binding precedent would not be attracted since an
order obtained by fraud is non est in the eye of law.
43.2. In K.D. Sharma vs. Steel Authority of India Limited, (2008) 12
SCC 481 (“K.D. Sharma”), this Court held that the jurisdiction
of the Supreme Court under Article 32 and of the High Court
under Article 226 of the Constitution is extraordinary, equitable
and discretionary and it is imperative that the petitioner
approaching the Writ Court must come with clean hands and
put forward all the facts before the Court without concealing or
suppressing anything and seek an appropriate relief. If there
is no candid disclosure of relevant and material facts or the
petitioner is guilty of misleading the Court, his petition may be
dismissed at the threshold without considering the merits of
the claim. It was held thus:
“38. The above principles have been accepted in our legal
system also. As per settled law, the party who invokes the
extraordinary jurisdiction of this Court Under Article 32 or
of a High Court Under Article 226 of the Constitution is
supposed to be truthful, frank and open. He must disclose
all material facts without any reservation even if they
are against him. He cannot be allowed to play “hide and
seek” or to “pick and choose” the facts he likes to disclose
and to suppress (keep back) or not to disclose (conceal)
other facts. The very basis of the writ jurisdiction rests in
disclosure of true and complete (correct) facts. If material
facts are suppressed or distorted, the very functioning of
writ courts and exercise would become impossible. The
Petitioner must disclose all the facts having a bearing on
the relief sought without any qualification. This is because
“the court knows law but not facts”.
[2024] 1 S.C.R. 863
Bilkis Yakub Rasool v. Union of India & Others
39. … Suppression or concealment of material facts is not
an advocacy. It is a jugglery, manipulation, maneuvering
or misrepresentation, which has no place in equitable and
prerogative jurisdiction. If the applicant does not disclose
all the material facts fairly and truly but states them in a
distorted manner and misleads the court, the court has
inherent power in order to protect itself and to prevent
an abuse of its process to discharge the Rule nisi and
refuse to proceed further with the examination of the case
on merits. If the court does not reject the petition on that
ground, the court would be failing in its duty. In fact, such
an applicant requires to be dealt with for contempt of court
for abusing the process of the court.”
43.3. In K. Jayaram vs. Bangalore Development Authority, 2021
SCC OnLine SC 1194 (“K. Jayaram”), a bench of this Court
headed by Sri Nazeer, J. noticed that the appellants therein had
not come to the Court with clean hands. The appellants in the
said case had not disclosed the filing of a suit and its dismissal
and also the dismissal of the appeal against the judgment of the
Civil Court. This Court stressed that the parties have to disclose
the details of all legal proceedings and litigations either past or
present concerning any part of the subject matter of dispute
which is within their knowledge in order to check multiplicity of
proceedings pertaining to the same subject-matter and more
importantly to stop the menace of soliciting inconsistent orders
through different judicial forums by suppressing material facts
either by remaining silent or by making misleading statements
in the pleadings in order to escape the liability of making a
false statement. This Court observed that since the appellants
therein had not disclosed the filing of the suit and its dismissal
and also the dismissal of the appeal against the judgment of the
civil court, the appellants had to be non-suited on the ground
of suppression of material facts. They had not come to the
court with clean hands and they had also abused the process
of law, therefore, they were not entitled to the extraordinary,
equitable and discretionary relief.
43.4. A Division Bench of this Court comprising Justice B. R. Gavai
and Justice C.T. Ravikumar placing reliance on the dictum in
S.P. Chengalvaraya Naidu, held in Ram Kumar vs. State of
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Uttar Pradesh, AIR 2022 SC 4705, that a judgment or decree
obtained by fraud is to be treated as a nullity.
44. We wish to consider the case from another angle. The order of this
Court dated 13.05.2022 is also per incuriam for the reason that it
fails to follow the earlier binding judgments of this Court including
that of the Constitution Bench in V. Sriharan vis-à-vis the appropriate
Government which is vested with the power to consider an application
for remission as per sub-section (7) of Section 432 of the CrPC and
that of the nine Judge Bench decision in Naresh Shridhar Mirajkar
that an order of a High Court cannot be set aside in a proceeding
under Article 32 of the Constitution.
44.1. In State of U.P. vs. Synthetics and Chemicals Ltd., (1991)
4 SCC 139 (“Synthetics and Chemicals Ltd.”), a two Judge
Bench of this Court (speaking through Sahai J. who also wrote
the concurring judgment along with Thommen, J.) observed
that the expression per incuriam means per ignoratium. This
principle is an exception to the rule of stare decisis. The
‘quotable in law’ is avoided and ignored if it is rendered, ‘in
ignoratium of a statute or other binding authority’. It would
result in a judgment or order which is per incuriam. In the
case of Synthetics and Chemicals Ltd., the High Court
relied upon the observations in paragraph 86 of the judgment
of the Constitution Bench in Synthetics and Chemicals Ltd.,
namely, “sales tax cannot be charged on industrial alcohol
in the present case, because under the Ethyl Alcohol (Price
Control) Orders, sales tax cannot be charged by the State on
industrial alcohol” and struck down the levy.
In Synthetics and Chemicals Ltd., before the two-judge bench, it was
categorically argued by the learned Advocate General appearing for
the appellant State of Uttar Pradesh that the reference to “sales tax”
in the judgment of this Court in the earlier round of the litigation was
accidental and did not arise from the judgment. This was because the
levy of sales tax was not in question at any stage of the arguments
nor was the question considered as it was not in issue. The Court
gave no reason whatever for abruptly stating that “sales tax was not
leviable by the State by reason of the Ethyl Alcohol (Price Control)
Orders.” In fact, the question which arose for consideration in the
earlier litigation was in regard to the validity of “vend fee and other
[2024] 1 S.C.R. 865
Bilkis Yakub Rasool v. Union of India & Others
fees” charged by the States. The argument was that such impost,
to the extent that it fell on industrial alcohol, encroached upon the
legislative field reserved for Parliament in respect of a controlled
industry coming under Entry 52 of List I (read with Entry 33 of List
III). Vend fee or transport fee and similar fees, unless supported by
quid pro quo, this Court held, interfered with the control exercised
by the Central Government under the Industries (Development
and Regulation) Act, 1951 (for short “IDR Act, 1951”) and the
various orders made thereunder with respect to prices, licences,
permits, distribution, transport, disposal, acquisition, possession,
use, consumption, etc., of articles related to a controlled industry,
industrial alcohol being one of them. But none of the observations
in the judgment warranted the abrupt conclusion, to which the court
came, that the power to levy taxes on sale or purchase of goods
referable to Entry 54 of List II was curtailed by the control exercised
by the Central Government under the IDR Act. The casual reference
to sales tax in the concluding portion of the judgment was accidental
and per incuriam was the submission.
While considering the said plea, this Court observed that “the only
question which had to be determined between the same parties
reported in (1990) 1 SCC 109 (Synthetics and Chemicals Ltd.
vs. State of U.P.) was “whether intoxicating liquor in Entry 8 in List
II was confined to potable liquor or includes all liquors.” Answering
this question, this Court categorically held that intoxicating liquor
within the meaning of Entry 8 of List II was confined to potable liquor
and did not include industrial liquor. This Court did not deal with the
taxing power of the State under Entry 54 of List II which deals with
‘taxes on the sale or purchase of goods other than newspapers,
subject to the provisions of Entry 92-A of List I’. The power of the
State to levy taxes on sale or purchase of goods under that entry
was not the subject matter of discussion by this Court although in
paragraph 86 of the leading judgment of this Court, there was a
reference to sales tax.
Therefore, the only question that was considered by the seven-judge
bench of this Court was whether the State could levy “excise duty”
or “vend fee” or “transport fee” and the like by recourse to Entry 51
or 8 in List II in respect of industrial alcohol. Entry 52 List II was not
applicable to fee or charges in question. Entry 52 List II refers to
“Taxes on the entry of goods into a local area for consumption, use
866 [2024] 1 S.C.R.
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or sale therein”. Further, the observation that sales tax cannot be
charged by the State on industrial alcohol was an abrupt observation
without a preceding discussion, and inconsistent with the reasoning
adopted by this Court in earlier decisions from which no dissent
was expressed on the point. However, the aforesaid observation
with reference to Entry 52 of List II in connection with excise duty
and sales tax when neither falls under that entry, was held to be
per incuriam.
This was because this Court by a detailed discussion in the seven-
judge bench decision had observed that the impugned statutory
provisions purportedly levying fees or enforcing restrictions in respect
of industrial alcohol were impermissible in view of the control assumed
by the Central Government in exercise of its power under Section
18-G of the IDR Act in respect of a declared industry falling under
Entry 52 of List I, read with Entry 33 of List III.
It was in the above background that this Court considered the question
whether or not the power of the State to levy tax on the sale or
purchase of goods falling under Entry 54 of List II would comprehend
industrial alcohol. This was because the taxing power under Entry
54 of List II was subject to taxing power of the Parliament under
Entry 92-A of List I. Therefore, it was observed that the provisions
in question by which sales tax could be levied within the scope and
ambit of Entry 54 List II was contrary to what had been stated (in
paragraph 86) by the seven-judge bench decision between the same
parties. It was observed that the aforesaid decision of this Court was
not an authority for the proposition canvassed by the assessee in
challenging the provision. This Court could not have intended to say
that the Price Control Orders made by the Central Government under
the IDR Act imposed a fetter on the legislative power of the State
under Entry 54 of List II to levy taxes on the sale or purchase of
goods. The reference to sales tax in paragraph 86 of that judgment
was merely accidental or per incuriam and therefore, had no effect.
In the earlier litigation of Synthetics and Chemicals Ltd., the question
was whether the State Legislature could levy vend fee or excise
duty on industrial alcohol. The seven-Judge Bench answered in the
negative as industrial alcohol being unfit for human consumption,
the State legislature was incompetent to levy any duty of excise
either under Entry 51 or Entry 8 of List II of the Seventh Schedule.
[2024] 1 S.C.R. 867
Bilkis Yakub Rasool v. Union of India & Others
While doing so, the Bench recorded the above conclusion. It was not
preceded by any discussion. No reason or rationale could be found in
the judgment. Therefore, it was held by the two-Judge Bench that the
same was per incuriam and was liable to be ignored in a subsequent
matter between the same parties. The courts have taken recourse to
this principle for relieving from injustice being perpetrated by unjust
precedents. It was observed that uniformity and consistency are core
of judicial discipline. But, if a decision proceeds contrary to the law
declared, it cannot be a binding precedent. It was further observed
that the seven-Judge Bench in Synthetics and Chemicals Ltd. did
not discuss the matter and had observed that the State cannot levy
sales tax on industrial alcohol. In the subsequent matter which arose
from the High Court between the same parties, it was held by this
Court that the conclusion of law by the Constitution Bench that no
sales or purchase tax could be levied on industrial alcohol was per
incuriam and also covered by the rule of sub-silentio and therefore,
was not a binding authority or precedent.
Thus, 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. 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 vide Mukesh K. Tripathi
vs. Senior Divisional Manager, LIC, (2004) 8 SCC 387 (para 23).
Thus, a decision per incurium is not binding.
44.2. Another exception to the rule of precedents is the rule of sub-
silentio. 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 vide Amrit Das vs. State of Bihar, (2000) 5 SCC 488.
868 [2024] 1 S.C.R.
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45. One of the contentions raised in the present case was 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. We cannot accept such a submission having regard
to what has been observed above in the case of Synthetics and
Chemicals Ltd. which was also with regard to the application of the
same doctrine between the very same parties 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.
Therefore, for this reason also, the order dated 13.05.2022 would
not bind the parties thereto and particularly, to the petitioner in Writ
Petition (Crl.) No.491 of 2022 who was in any case not a party to
the said writ proceeding.
46. Having regard to the above discussion and in light of the provisions
of the CrPC, the judgments of this Court and our own understanding
of the order dated 13.05.2022 passed by a coordinate Bench of this
Court in Writ Petition No.135 of 2022, we hold as follows:
(i) that the Government of State of Gujarat (respondent No.1 herein)
had no jurisdiction to entertain the applications for remission
or pass the orders of remission on 10.08.2022 in favour of
respondent No.3 to 13 herein as it was not the appropriate
Government within the meaning of sub-section (7) of Section
432 of the CrPC;
(ii) that this Court’s order dated 13.05.2022 being vitiated and
obtained by fraud is therefore a nullity and non estin law. All
proceedings taken pursuant to the said order also stand vitiated
and are non est in the eye of law.
47. Point No.3 is accordingly answered.
Point No.4 : Whether the impugned order of remission passed
by the respondent - State of Gujarat in favour of respondent
Nos.3 to 13 are in accordance with law?
48. We have perused the original record which is the English translation
from Gujrati language.
[2024] 1 S.C.R. 869
Bilkis Yakub Rasool v. Union of India & Others
48.1. Even according to the respondent State of Gujarat Radheshyam
Bhagwandas Shah has not made any application seeking
remission before the Superintendent, Godhra Sub-Jail or the
State of Gujarat on 01.08.2019.
48.2. All the other applications were made even prior to the order
of this Court made in Writ Petition (Crl.) No.135 of 2022 on
13.05.2022. Within next few days i.e. on 26.05.2022, the Jail
Advisory Committee gave its opinion recommending grant
of remission. The recommendation of ADG and IG of Jails
was received in almost cases on 09.06.2022. In two cases,
(i) the recommendation of the ADG and IG was received on
18.08.2021 and 09.06.2021 [in the case of Govind Bhai
Akham Bhai Nai (Raval)] and (ii) on 18.08.2021 [in the case
of Radheyshyam Bhagwandas Shah].
48.3. The communication of the State Government to the Central
Government was made on 28.06.2022; the second respondent
Union of India gave its concurrence on 11.07.2022; and, the
order of remission was made on 10.08.2022.
48.4. We extract one of the orders of remission dated 10.08.2022
in the case of respondent No.3 as under:
“GOVERNMENT OF GUJARAT
Order Number JLK/83202/2978/J
Secretariat House, Gandhinagar,
Dated: 10/08/2022.
Reference:
(1) Order of the Hon’ble Supreme Court date:13/05/2022,
Writ Petition (Criminal) No.135/2022.
(2) The Additional Director General of Police and
Inspector General of Prisons, State of Gujarat,
Ahmedabad/letter dated:17/06/2022 No:- JUD/14
Year/2/4754/2022.
(3) Department Circular Date: 09/7/1992, No.JLK/3390/
CM/16/Part-2/J.
(4) Ministry of Home, The Government of India, Letter
dated: 11/07/2022, No.15/05/2022/JC-II
870 [2024] 1 S.C.R.
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::FORWARD::
Mr. Radheshyam Bhagwandas Shah, From Godhra Sub
Jail filed Writ Petition in the Hon’ble Supreme Court as
per reference No.1 and Hon’ble Supreme Court passed
order to take decision as per policy mentioned in reference
No.3 within two months regarding Pre-mature release
application of Mr. Shah. The premature release proposal
was prepared and sent by the Additional Director General
of Police and Inspector General of Prisons as per the
letter of reference No.2. The provision under Section 432
of CrPC the State Government has power for pre-mature
release, however provision under Section 435(1)(A) of
CrPC. Indicates that any case investigated by any agency
which is established by Union Government Rules, in those
cases it is need to be consulted with Central Government is
required. This case was investigated by CBI, therefore the
State Government of Gujarat in consultance with Central
Government letter dated 28/06/2022. Pursuant to which
the Ministry of Home Affairs of the Government of India
has given a positive opinion regarding the release of the
prisoner from the letter reference (4), considering all the
details, the release of Mr. Radheshyam Bhagwandas Shah
was under consideration.
::ORDER::
Provision under Criminal Procedure Code, 1973 Section
443(A), power given to State Government under Section
432 of Criminal Procedure Code, 1973, the convict prisoner
Radheshyam Bhagwandas Shah’s life sentence remitted
under the following conditions and taken decision by
Government to release him from immediate effect.
::CONDITIONS::
(1) He shall to furnish surety of two gentlemen about
after releasing him, he will behave good up to two
years and also given undertaking he will not breach
public peace and harass parties and witnesses.
(2) After being released from prison if he commits
cognizable offense causing grievous hurt to anyone
or property then he may be re-arrested and shall
serve the remaining of his sentence.
[2024] 1 S.C.R. 871
Bilkis Yakub Rasool v. Union of India & Others
(3) After released from jail he must give his attendance in
nearest police station, once in a month till one year.
The jail authority shall read and explain above conditions
to him and before releasing him, prior to his release
from prison, the jail authority must keep a written record
indicating that he has understood the said conditions and
that he agrees to these conditions of release from prison.
By order of the Governor of Gujarat and in his name.
---sd---
(Mayursinh Vaghela)
Under Secretary
Home Department.”
48.5. Though we have extracted one of the remission orders, we
observe that having given our categorical finding on Point
No.3, it may not be necessary to dilate on certain aspects of
Point No.4, though it is quite evident that the said order is a
non-speaking one reflecting complete non-application of mind.
All orders dated 10.08.2022 are a stereotyped and cyclostyled
orders.
48.6. Be that as it may, it would be useful to refer to the following
judgments in the context of passing an order of remission in
terms of Section 432 read with Section 435 of the CrPC.
(a) V. Sriharan is a judgment of this Court wherein the Constitution
Bench answered seven questions out of which the following
questions are relevant for the purposes of this case:
“××× ××× ×××
8.3. (iii) Whether the power under Sections 432 and
433 of the Criminal Procedure Code by the appropriate
Government would be available even after the constitutional
power under Articles 72 and 161 by the President and the
Governor is exercised as well as the power exercised by
this Court under Article 32?
8.4. (iv) Whether the State or the Central Government
have the primacy under Section 432(7) of the Criminal
Procedure Code?
872 [2024] 1 S.C.R.
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8.5. (v) Whether there can be two appropriate Governments
under Section 432(7)?
8.6. (vi) Whether power under Section 432(1) can be
exercised suo motu without following the procedure
prescribed under Section 432(2)?
8.7. (vii) Whether the expression “consultation” stipulated
in Section 435(1) really means “concurrence”?”
(i) This Court observed that the procedure to be followed
under Section 432(2) is mandatory and that suo moto
power of remission cannot be exercised under Section
432(1) and it can only be initiated by an application of the
person convicted as provided under Section 432(2) and
the ultimate order of suspension of sentence or remission
should be guided by the opinion to be rendered by the
Presiding Officer of the Court concerned. In this case the
earlier judgement of this court in Sangeet was approved.
(b) In Sangeet, it was observed that a convict undergoing a sentence
does not have a right to get remission of sentence, however, he
certainly does have a right to have his case considered for the
grant of remission as held in Mahender Singh and Jagdish.
It was further observed in the said case that there does not
seem to be any decision of this Court detailing the procedure
to be followed for the exercise of power under Section 432 of
the CrPC which only lays down the basic procedure i.e. by
making an application to the appropriate Government for the
suspension or remission of a sentence, either by the convict or
someone on his behalf. It was observed that sub-section (1) of
Section 432 of the CrPC is only an enabling provision to override
a judicially pronounced sentence, subject to the fulfilment of
certain conditions. These conditions are found either in the
Jail Manual or in statutory rules. It was pertinently observed
that when an application for remission is made the appropriate
Government may take a decision on the remission application
and pass orders granting remission subject to certain conditions
or, refuse remission. But there has to be an application of mind
on the remission application so as to eliminate discretionary
en-masse release of convicts on “festive” occasions, since each
release requires a case by case scrutiny. It was observed that
[2024] 1 S.C.R. 873
Bilkis Yakub Rasool v. Union of India & Others
the power of remission cannot be exercised arbitrarily and the
decision to grant remission has to be well informed, reasonable
and fair to all concerned. The statutory procedure under Section
432 of the CrPC provides a check on the possible misuse of
power of the appropriate Government.
(i) It was further observed that there is a misconception that
a prisoner serving a life sentence has an indefeasible right
to be released on completion of fourteen years or twenty
years of imprisonment; however, in reality, the prisoner has
no such right. A convict undergoing life imprisonment is
expected to remain in custody till the end of his life, subject
to any remission granted by the appropriate Government
under Section 432 of the CrPC which, in turn, is subject to
the procedural checks in that section and the substantive
check in Section 433-A of the CrPC. That the application of
Section 432 of the CrPC to a convict is limited inasmuch
as, a convict serving a definite term of imprisonment is
entitled to earn a period of remission under a statutory
rule framed by the appropriate Government or under the
Jail Manual. The said period is then offset against the term
of punishment given to him. Thus, upon completion of the
requisite period of incarceration, a prisoner’s release is
automatic. However, Section 432 of the CrPC will apply
only when a convict is to be given an “additional” period
of remission for his release i.e., the period to what he has
earned as per the Jail Manual or the statutory rules. That
in the case of convict undergoing life imprisonment, the
period of custody is indeterminate. Remissions earned or
awarded to such a life convict are only notional and Section
432 of the CrPC reduces the period of incarceration by an
order passed by an appropriate Government which cannot
be reduced to less than fourteen years as per Section
433-A of the CrPC. This Court after a detailed discussion
came to the following conclusions on the aspect of grant
of remissions:
“77.5. The grant of remissions is statutory. However,
to prevent its arbitrary exercise, the legislature has
built in some procedural and substantive checks in
the statute. These need to be faithfully enforced.
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77.6. Remission can be granted under Section 432
Cr.P.C. in the case of a definite term of sentence.
The power under this section is available only for
granting “additional” remission, that is, for a period
over and above the remission granted or awarded
to a convict under the Jail Manual or other statutory
rules. If the term of sentence is indefinite(as in life
imprisonment), the power under Section 432 Cr.P.C.
can certainly be exercised but not on the basis that
life imprisonment is an arbitrary or notional figure of
twenty years of imprisonment.
77.7. Before actually exercising the power of
remission under Section 432 Cr.P.C. the appropriate
Government must obtain the opinion(with reasons) of
the Presiding Judge of the convicting or confirming
Court. Remissions can, therefore, be given only on a
case-by-case basis and not in a wholesale manner.”
(c) Ram Chander was a case of a writ petition being filed before this
Court under Article 32 of Constitution seeking a direction to the
respondent-State therein to grant him premature release. This
Court speaking through Dr. D.Y. Chandrachud., J., (presently the
learned Chief Justice) considered the aspect of judicial review of
power of remission and referred to Mohinder Singh to observe
that the power of remission cannot be exercised arbitrarily and
the decision to grant remission should be informed, reasonable
and fair. In this context, reliance was placed on Laxman Naskar
wherein this Court, stipulated the factors that govern the grant
of remission namely:
i. Whether the offence is an individual act of crime
without affecting the society at large?
ii. Whether there is any chance of future recurrence of
committing crime?
iii. Whether the convict has lost his potentiality in
committing crime?
iv. Whether there is any fruitful purpose of confining this
convict any more?
v. Socio-economic condition of the convict’s family.”
[2024] 1 S.C.R. 875
Bilkis Yakub Rasool v. Union of India & Others
(i) That while grant of remission is the exclusive prerogative of
the executive, the Court cannot supplant its view. The Court
can direct the authorities to reconsider the representation
of the convict vide Rajan. Therefore, while there can be
no direction to release a prisoner forthwith or to remit the
remaining sentence, at best there can only be a direction
issued to the State to consider the representation made
for remission expeditiously on its own merits and in
accordance with law. In this case, reliance was placed on
Halsbury’s Law of India (Administrative Law) to observe
that sufficiency of reasons, in a particular case, depends
on the facts of each case while considering an application
for remission. It was further observed that mechanical or
stereo typed reasons are not adequate as also, a mere
repetition of the statutory language in the order will not
make the order a reasoned one. In the aforesaid case, the
application for remission was directed to be reconsidered
with adequate reasoning and taking into consideration all
the relevant factors that govern the grant of remission as
laid down in Laxman Naskar.
(d) Epuru Sudhakar is also a case where a writ petition was filed
under Section 32 of the Constitution challenging an order of
Government of Andhra Pradesh, whereby a convict (respondent
No.2 therein) was granted remission of unexpired period of
about seven years’ imprisonment. The petition was filed by the
son of the murdered persons while the convict was on bail in
the murder case of petitioner No.1’s father therein. In the writ
petition it was alleged, inter alia, that the grant of remission
was illegal as relevant materials were not placed before the
Governor and the impugned order was made without application
of mind and based on irrelevant and extraneous materials and
therefore, liable to be set aside. That was a case where remission
or grant of pardon was under Article 161 of the Constitution
by the Governor of the State of Andhra Pradesh. This Court,
while considering the philosophy underlining the power of
pardon or the power of clemency observed that the said power
exercised by a department or functionary of the Government is
in the context of its political morality. Reliance was placed on
Biddle, Warden vs. Perovich, 274 US 480 (1927) (“Biddle”)
in which case, Holmes, J of the United States Supreme Court
had observed on the rationale of pardon in the following words:
876 [2024] 1 S.C.R.
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“…a pardon in our days is not a private act of grace
from an individual happening to possess power. It is
a part of the constitutional scheme. When granted,
it is the determination of the ultimate authority that
the public welfare will be better served by inflicting
less than what the judgment fixed…”
(i) It was observed that the prerogative of mercy exercised by
a State as a prerogative power of a Crown as in England
(U.K.) or of the President of India or Governor of a State
in India is reviewable as an administrative action incase
there is an abuse in the exercise of the prerogative power.
That the prerogative power to pardon or grant clemency or
for that matter remission of sentence being a discretionary
power, it must be exercised for the public good and the
same can be examined by the Courts just as any other
discretionary power which is vested with the executive.
Therefore, judicial review of the exercise or non-exercise
of the power of pardon by the Presidentor Governor
is available in law. That any exercise of public power,
including constitutional power, shall not be exercised
arbitrarily or mala fide vide Maru Ram. It was observed in
the said case that, considerations of religion, caste, colour
or political loyalty are totally irrelevant and fraught with
discrimination. The function of determining whether the
act of a constitutional or statutory functionary falls within
the constitutional or legislative conferment of power or is
vitiated by self-denial or an erroneous appreciation of the
full amplitude of the power, is a matter for the Court t o
d e c i d e vide Kehar Singh vs. Union of India, (1989)
1 SCC 204 (“Kehar Singh”).
(ii) In Epuru Sudhakar, two other aspects were also
considered: one relating to the desirability of indicating
reasons in the order granting pardon/remission and the
other, relating to the power to withdraw the order of granting
pardon/remission, if subsequently, materials are placed to
show that certain relevant materials were not considered
or certain materials of extensive value were kept out of
consideration. It was observed that the affected party need
not be given the reasons but that does not mean that there
[2024] 1 S.C.R. 877
Bilkis Yakub Rasool v. Union of India & Others
should not be legitimate or relevant reasons for passing
the order. It was also observed that in the absence of any
specific reference under Articles 72 or 161 of Constitution
with regard to withdrawal of an order of remission, there
is no bar for such power being exercised.
(iii) On a consideration of the facts of the said case, it was
observed that, irrelevant and extraneous materials
had entered into the decision-making process, thereby
vitiatingit. The order granting remission impugned in the writ
petitions was set aside being unsustainable and directed
to be reconsidered and the writ petition was allowed to
that extent. Kapadia, J., as the learned Chief Justice then
was, in his concurring opinion observed that, exercise of
executive clemency is a matter of discretion and yet subject
to certain standards. The discretion has to be exercised or
public considerations allowed. Therefore, the principle of
exclusive cognizance would not apply when the decision
impugned is in derogation of a constitutional provision. It
was further stated that granting of pardon has the effect of
eliminating conviction without addressing the defendant’s
guilt or innocence.
(iv) The exercise of the prerogative power is subject to judicial
review and rule of law which is the basis for evaluation
of all decisions. Rule of law cannot be compromised on
the grounds of political expediency as “to go by such
consideration would be subversive of the fundamental
principles of rule of law and it would amount to setting a
dangerous precedent.”
(e) In Mansukhlal Vithaldas Chauhan vs. State of Gujarat, (1997)
7 SCC 622, the basis on which the legality of an administrative
decision could be reviewed was stated. It could be on whether,
a decision making authority exceeding its powers committed
an error of law; committed a breach of rules of natural justice;
reached a decision which no reasonable tribunal would have
reached or abused its powers. In other words, the judicial review
of the order of the President or the Governor under Article 72
or Article 161 of the Constitution, as the case may, is available
and such order scan be impugned on the following grounds:
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i. that the order has been passed without application
of mind;
ii. that the order is mala fide;
iii. that the order has been passed on extraneous or
wholly irrelevant considerations;
iv. that relevant materials have been kept out of
consideration;
v. that the order suffers from arbitrariness.
(f) Further, in Swamy Shraddananda, it was observed that judicial
notice has to be taken of the fact that remission, if allowed to
life convicts in a mechanical manner without any sociological
or psychiatric appraisal of the convict and without any proper
assessment as to the effect of early release of a particular
convict on the society. It was further observed that, the power
of executive clemency is not only for the benefit of the convict
but what has to be borne in mind is the effect of the decision on
the family of the victims, society as a whole and the precedent
which it sets for the future. Thus, the exercise of power depends
upon the facts and circumstances of each case and has to
be judged from case to case. Therefore,one cannot draw the
guidelines for regulating exercise of power. Further, the exercise
or non-exercise of power of pardon or remission is subject to
judicial review and a pardon obtained by fraud or granted by
mistake or granted for improper reasons would invite judicial
review and the vindication of the rule of law being the main
object of judicial review, the mechanism for giving effect to that
justification varies. Thus, rule of law should be the over arching
conditional justification for judicial review.
(g) In Rajan, it was observed that where a person has been
convicted on several counts for different offences in relation
to which life imprisonment has been granted, the convict may
succeed in being released prematurely only if the competent
authority passes an order of remission concerning all the life
sentences awarded to the convict on each count which is a
matter to be considered by the competent authority.
48.7. With regard to the remission policy applicable in a given case,
the following judgments are of relevance:
[2024] 1 S.C.R. 879
Bilkis Yakub Rasool v. Union of India & Others
(a) In Jagdish, a three Judge Bench of this Court considered
the conflicting opinions expressed in State of Haryana vs.
Balwan, (1999) 7 SCC 355 (“Balwan”) on the one hand and
Mahendar Singh, and State of Haryana vs. Bhup Singh,
(2009) 2 SCC 268 (“Bhup Singh”) on the other. The question
considered by the three-Judge bench was, whether, the policy
which provides for remission and sentence should be that which
was existing on the date of the conviction of the accused or
should it be the policy that existed on date of consideration of
his case for premature release by the appropriate authority.
Noting that remission policy would be changed from time to
time and after referring to the various decisions of this Court,
including Gopal Vinayak Godse and Ashok Kumar, this Court
observed that, liberty is one of the most precious and cherished
possessions of a human being and he would resist forcefully
any attempt to diminish it. Similarly, rehabilitation and social
reconstruction of a life convict, as an objective of punishment
become a paramount importance in a welfare State. The
State has to achieve the goal of protecting the society from
the convict and also rehabilitate the offender. The remission
policy manifests a process of reshaping a person who, under
certain circumstances, has indulged in criminal activities and
is required to be rehabilitated. Thus, punishment should not be
regarded as the end but only a means to an end. Relevancy
of circumstances to an offence such as the state of mind of
the convict when the offence was committed, are factors to be
taken note of. It was further observed as under:
“46. At the time of considering the case of premature
release of a life convict, the authorities may require
to consider his case mainly taking into consideration
whether the offence was an individual act of crime
without affecting the society at large; whether there
was any chance of future recurrence of committing a
crime; whether the convict had lost his potentiality in
committing the crime; whether there was any fruitful
purpose of confining the convict any more; the socio-
economic condition of the convict’s family and other
similar circumstances.”
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(i) That the executive power of clemency gives an opportunity
to the convict to reintegrate into the society. However, the
power of clemency must be pressed into service only in
appropriate cases. Ultimately, it was held that the case
for remission has to be considered on the strength of the
policy that was existing on the date of conviction of the
accused. It was further observed that in case no liberal
policy prevails on the date of consideration of the case of
a convict under life imprisonment for premature release,
he should be given the benefit thereof subject of course
to Section 433-A of the CrPC.
48.8. At this juncture, it is relevant to refer to the following decisions
of this Court, wherein orders of remission have been quashed
and set aside by this Court on various grounds:
(a) In Swaran Singh vs. State of Uttar Pradesh, (1998) 4 SCC 75,
a three-Judge Bench of this Court considered the question as to
scope of judicial review of an order of a Governor under Article
161 of the Constitution of India. In the said case, a Member of
the Legislative Assembly of the State of Uttar Pradesh had been
convicted of the offence of murder and within a period of less
than two years, he was granted remission from the remaining
long period of his life sentence. The son of the deceased moved
the Allahabad High Court challenging the aforesaid action of
the Governor and the same having been dismissed, the matter
had been brought to this Court. This Court noticed that the
Governor exercised the power to grant remission, without being
appraised of material facts concerning the prisoner, such as, his
involvement in five other criminal cases of serious nature, the
rejection of his earlier clemency petition and the report of the jail
authority that his conduct inside the jail was far from satisfactory
and that out of the two years and five months he was supposed
to have been in jail, he was in fact out on parole during the
substantial part thereof. The Court further held that when the
Governor was not in the know of material facts, the Governor
was deprived of the opportunity to exercise the power to grant
remission in a fair and just manner and that the order granting
remission fringed on arbitrariness. Therefore, the order of the
Governor granting remission, was quashed, with a direction to
[2024] 1 S.C.R. 881
Bilkis Yakub Rasool v. Union of India & Others
re-consider the petition of the prisoner in light of the materials
which the Governor had no occasion to know earlier. As regards
the question as to the power of judicial review over an order
passed by the Governor under Article 161 of the Constitution,
the following observations were made:
“10. A Constitution Bench of this Court has considered
the scope of judicial review of exercise of powers under
Articles 72 and 161 of the Constitution of India in Kehar
Singh v. Union of India (1989) 1 SSC 204. The bench
after observing that the Constitution of India is a constitutive
document which is fundamental to the governance of
the country under which people of India have provided a
constitutional polity consisting of certain primary organs,
institutions and functionaries to exercise the powers
provided in the Constitution, proceeded to add thus:
“All power belongs to the people and it is entrusted
by them to specified institutions and functionaries
with the intention of working out, maintaining and
operating a constitutional order.”
The Constitution Bench laid down that judicial review of
the Presidential order cannot be exercised on the merits
except within the strict limitations defined in Maru Ram
v. Union of India (1981) 1 SCC 107. The limitations of
judicial review over exercise of powers under Articles
72 and 161 of the Constitution have been delineated in
the said decision by the constitution Bench. It has been
observed that “all public power, including constitutional
power, shall never be exercisable arbitrarily or mala fide,
and ordinarily guidelines for fair and equal execution are
guarantors of valid play of power.” The bench stressed
the point that the power being of the greatest moment,
cannot be a law unto itself but it must be informed by the
finer canons of constitutionalism.
11. It was therefore, suggested by the bench to make
rules for its own guidance in the exercise of the pardon
power keeping a large residuary power to meet special
situations or sudden developments.
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12. In view of the aforesaid settled legal position, we
cannot accept the rigid contention of the learned counsel
for the third respondent that this Court has no power to
touch the order passed by the Governor under Article 161
of the constitution. If such power was exercised arbitrarily,
mala fide or in absolute disregard of the finer canons of
the constitutionalism, the by-product order cannot get the
approval of law and in such cases, the judicial hand must
be stretched to it.”
(underlining by us)
(b) In Joginder Singh vs. State of Punjab, (2001) 8 SCC 306 the
facts were that the respondents-convicts therein were convicted
for offences punishable under Sections 324, 325 and 326 read
with Section 34 of the IPC and had been awarded a sentence
of one year and six months which was challenged upto the
High Court of Punjab and Haryana and was confirmed. On the
dismissal of the Revision Petition by the High Court, the convicts
surrendered before the Superintendent of the concerned jail
and on the same day were released by the jail authorities on
being granted the benefit of remission. It is of importance to
note that during the period of trial ending with confirmation of
conviction in the Revision Petition by the High Court, the convicts
(earlier accused) were almost all at the time out on bail except
for a period of about 2 months and 25 days when they were
in jail, serving part of their sentence. The appellant before this
Court, who was the complainant, unsuccessfully challenged
the remission order before the High Court and thereafter
approached this Court by way of a Special Leave Petition.
The primary ground of challenge before this Court was that the
periods of remission permissible under successive notifications
issued between 13.07.1988 and 29.07.1998 (period between
date of conviction by the Chief Judicial Magistrate and the date
on which the conviction and sentence was upheld by the High
Court) were cumulatively allowed to the convicts. That is to say
that the maximum period of remission permissible under each
of the seven notifications issued between the said dates was
to be cumulatively taken into account to grant a total remission
of 17 and a half months. It was contended before this Court
[2024] 1 S.C.R. 883
Bilkis Yakub Rasool v. Union of India & Others
that the said approach was erroneous in construing successive
policies of remission. It was further contended that while applying
the period of remission granted by the Government under any
remission notification, the period during which an accused
person was out on bail cannot be taken into account.
(i) This Court while allowing the appeal of the appellant
therein-complainant held that the High Court fell in error
in holding that the convicts were entitled to the benefit of
the period of remission given by the various notifications
cumulatively to be counted against the period during which
they were out on bail.
(c) In Satpal, the order of the Governor granting remission to
convicts therein, in the exercise of power conferred by Article 161
of the Constitution of India read with Section 132 of the Code
of Criminal Procedure was assailed by the brother and widow
of the deceased. The primary ground raised before this Court
was that the power to grant remission was exercised without
application of mind, and that the said power was exercised by
the Governor having regard to extraneous considerations and
even without the aid and advice of the Government, namely,
the concerned Minister. This Court examined the said case
having regard to the parameters of judicial review in relation to
an order granting remission by the Governor. It was noted that
the Governor had proceeded to grant remission of sentence
without any knowledge as to the period of sentence already
served by the convicts and if at all they had undergone any
period of imprisonment. It was noted that an order granting
remission would be arbitrary and irrational if passed without
knowledge or consideration of material facts.
49. On a reading of the aforesaid judgments what emerges is that the
power to grant remission on an application filed by the convict or on
his behalf, is ultimately an exercise of discretion by the appropriate
Government. It is trite that 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
in the instant case, the appropriate Government had not only the
jurisdiction and authority vested to exercise its powers but it exercised
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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.
49.1. It is not necessary to dilate upon each of the aforesaid aspects
of abuse of discretion in the instant case, as we have observed
that the consideration of the impugned orders or manner of
exercise of powers is unnecessary, having regard to the answer
given by us to Point No.3.
50. However, it would be relevant to refer to one aspect of abuse of
discretion, namely, usurpation of power. 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.
50.1. Applying the said principle to the instant case, we note that
having regard to the definition of “appropriate Government”
and the answer given by us to Point No.3, the exercise of
discretion and the passing of the impugned orders of remission
in the case of respondent Nos.3 to 13 herein was an instance
of usurpation of power. It may be that this Court by its order
dated 13.05.2022 passed in Writ Petition No.135 of 2022 had
directed the first respondent State of Gujarat to consider the
case of respondent No.3 under the 1992 Policy of the State of
Gujarat, by setting aside the order of the High Court of Gujarat
dated 17.07.2019. What is interesting is that in the said writ
petition, the State of Gujarat had correctly submitted before this
Court that the appropriate Government in the instant case was
State of Maharashtra and not the State of Gujarat. The said
[2024] 1 S.C.R. 885
Bilkis Yakub Rasool v. Union of India & Others
contention was in accordance with the definition of appropriate
Government under clause (b) of sub-section (7) of Section 432
of the CrPC. However, the said contention was rejected by
this Court contrary to several judgments of this Court including
that of the Constitution Bench in V. Sriharan. But the State
of Gujarat failed to file a review petition seeking correction of
the order of this Court dated 13.05.2022,(particularly when we
have now held that the said order is a nullity). Complying with
the said order can also be said to be an instance of usurpation
of power when the provision, namely, clause (b) of sub-section
(7) of Section 432 states otherwise.
50.2. We fail to understand as to, why, the State of Gujarat, first
respondent herein, did not file a review petition seeking
correction of the order dated 13.05.2022 passed by this Court
in Writ Petition No.135 of 2022 in the case of respondent No.3
herein. Had the State of Gujarat filed an application seeking
review of the said order and impressed upon this Court that
it was not the “appropriate Government” but the State of
Maharashtra was the “appropriate Government”, ensuing
litigation would not have arisen at all. On the other hand, in
the absence of filing any review petition seeking a correction
of the order passed by this Court dated 13.05.2022, the first
respondent-State of Gujarat herein has usurped the power
of the State of Maharashtra and has passed the impugned
orders of remission on the basis of an order of this Court dated
13.05.2022 which, in our view, is a nullity in law.
50.3. In this regard it is necessary to dilate on the background to
this case and refer to the previous orders passed by this Court
as under:-
The first order is dated 16.12.2003, referring the matter to the CBI
for investigation; the second is an order of transfer of the trial from
the competent Court in Gujarat to the Special Court at Mumbai and
the third is an order passed by this Court granting compensation
to the petitioner in Writ Petition (Crl.) No.491 of 2022. The relevant
portions of the aforesaid orders read as under:-
W.P.(Crl.) No.118 of 2003, dated 16.12.2003 – referring matter to
the CBI for investigation;
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“ORDER
“Considering the nature of the allegations made, Shri Mukul
Rohtagi learned Additional Solicitor General appearing
for the respondents accepts that further investigation
in this case may be done by the CBI, though he does
not concede that the Gujarat Police is incompetent to
investigate the matter. Hence, we direct the CBI to take
over further investigation of this case and report to this
Court from time to time.
Let a report be filed by the CBI within eight weeks.
List after report is filed.”
Transfer Petition (Crl.) No.192 of 2004, dated 06.08.2004 – transfer
of the trial from the competent Court in Gujarat to the Special
Court at Mumbai;
ORDER
“We are of the view that on account of the nature and the
allegations of the case, session case No.161 of 2004 before
the Additional Sessions Judge, Dahod now transferred to
Additional Sessions Judge of IVth Court of the City Civil
Sessions Court Ahmedabad (CBI Case No.RCZ/S/2004,
SCB Mumbai) title CBI vs. Jaswantbhai Chaturbhai &Others
be transferred to any competent Court in Mumbai for
trial and disposal. This order be placed before the Chief
Justice of Bombay High Court who shall designate the
competent Court as he may deem fit. The transfer petition
is accordingly allowed.
This order is based on the perceptions of the CBI as
recorded in its report and should not be taken as a reflection
on the competence or impartiality of the judiciary in the
State of Gujarat.
Having regard to the peculiar facts of this case the State
of Gujarat shall bear the expenditure of the defence of the
accused in accordance with the provisions of the Section
304 of the Code of Criminal Procedure.
It is made clear that for the purpose of this case the Central
Government will appoint the public prosecutor.”
[2024] 1 S.C.R. 887
Bilkis Yakub Rasool v. Union of India & Others
Criminal Appeal Nos.727-733 of 2019, order dated 23.04.2019 -
compensation
ORDER
“The appellant, Bilkis Yakub Rasool, is a victim of riots
which occurred in the aftermath of the Godhra train burning
incident in the State of Gujarat on February 27, 2002.
While eventually, the perpetrators of the crime including
the police personnel stand punished, the appellant, who
was aged twenty-one years and pregnant at that time,
having lost all members of her family in the diabolical
and brutal attacks needs to be adequately compensated.
Additional facts which we must note are that the appellant
was repeatedly gangraped and was a mute and helpless
witness to her three-and-a-half-year-old daughter being
butchered to death. This factual position is undisputed
and unchallenged in light of the findings of the trial court
upheld by the High Court and this Court.
The appellant, we are informed, is presently about forty
years of age and is without any home and lives with her
daughter who was born after the incident. She has been
coerced to live life of a nomad and as an orphan, and is
barely sustaining herself on the charity of NGOs, having
lost company of her family members. The gruesome and
horrific acts of violence have left an indelible imprint on
her mind which will continue to torment and cripple her.
We do not have to search and elaborate upon principles
of law to come to the conclusion that the appellant
deserves to be adequately compensated. It is only the
quantum of compensation that needs to be worked out
by the Court. Time and again this Court has held that the
compensation so awarded must be just and fair, and the
criteria objective. However, this case has to be dealt with
differently as the loss and suffering evident from the facts
stated above surpass normal cases. Taking into account
the totality of the facts of the case, we are of the view that
compensation of Rs.50,00,000/- (Rupees fifty lakh only)
to be paid by the State Government within two weeks
from today, on proper identification, would meet the ends
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of justice. Coupled with the aforesaid relief, we deem it
proper to further direct the State Government to provide
the appellant with an employment under the State, if she
wishes so and is inclined, and also to offer her government
accommodation at a place of her choice, if she is willing
to live in such accommodation.
With the aforesaid direction, the appeals relating to
compensation are disposed of.”
The aforesaid orders clearly indicate why this Court had transferred
the investigation and trial to the CBI and to the State of Maharashtra
respectively.
50.4. Such being the case, it was the State of Maharashtra which
was the appropriate Government which had to consider the
appellant for remission vis-à-vis respondent Nos.3 to 13
herein. Instead, being unsuccessful before the High Court of
Gujarat, respondent No.3 surreptitiously filed the writ petition
before this Court seeking a direction to consider his case for
remission without disclosing the full and material facts before
this Court. Relief was granted by this Court by conferring
jurisdiction on State of Gujarat which it did not possess as
per Section 432 (7) of the CrPC, in the guise of consideration
for remission on the basis of the 09.07.1992 policy, which had
also stood cancelled in the year 2013. Taking advantage of this
Court’s order dated 13.05.2022, all other convicts also sought
consideration of their case by the Government of Gujarat for
remission even in the absence of any such direction in their
cases by this Court. Thus, the State of Gujarat has acted on
the basis of the direction issued by this Court but contrary to
the letter and spirit of law. We have already said that the 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 Section 432 (7) and judgments of this Court.
50.5. Instead, the State of Gujarat has acted in tandem and was
complicit with what the petitioner-respondent No.3 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
[2024] 1 S.C.R. 889
Bilkis Yakub Rasool v. Union of India & Others
justice by transferring the investigation of the case to the CBI
and the trial to the Special Court at Mumbai. But, in our view,
when no intervention was called for in the writ petition filed by
one of the convicts /respondent No. 3 herein, this Court was
misled to issue directions contrary to law and on the basis of
suppression and misstatements made by respondent No. 3
herein. We have held that order of this Court dated 13.05.2022
to be a nullity and non est in the eye of law. 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. By failing to do so, not only are the earlier orders
of this Court 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.
This is a classic case where the order of this Court dated
13.05.2022 has been used for violating the rule of law while
passing orders of remission in favour of respondent Nos. 3 to
13 in the absence of any jurisdiction by respondents – State
of Gujarat. Therefore, without going into the manner in which
the power of remission has been exercised, we strike down the
orders of remission on the ground of usurpation of powers by
the State of Gujarat not vested in it. The orders of remission
are hence quashed on this ground also.
Section 432(2)of the CrPC: Opinion of the Presiding Judge of
the convicting court:
51. Sub-section (2) of Section 432 of the CrPC 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, as to, whether, the
application should be granted or refused, together with his reasons
for such opinion and also to forward with the statement of such
opinion a certified copy of the record of the trial or of such record
thereof as exists.
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52. Learned ASG Sri S.V. Raju submitted that the expression “appropriate
Government may require the opinion of the Presiding Judge of the
Court” indicates that this is not a mandatory requirement, therefore,
in the instant case the opinion of the Presiding Judge of the Court by
which respondent Nos. 3 to 13 were convicted, namely, the Special
Judge, Mumbai, was unnecessary. It was further submitted that since
the State of Gujarat was considering the applications for remission
filed by respondent Nos. 3 to 13, the opinion of local Sessions Judge
at Dahod was obtained as a member of the Jail Advisory Committee
and there was a positive opinion for grant of remission to respondent
Nos. 3 to 13 herein.
52.1. This contention was however refuted by the learned counsel
Ms. Shobha Gupta by reiterating her submission that the
expression “may require” in sub-section (2) of Section 432 of
the CrPC ought to be read as “shall require”. This is evident
from the dicta of this Court. In this regard, reliance was placed
on certain judgments of this Court which we shall advert to in
the first instance as under:
(i) In Sangeet, it was observed that before actually exercising
the power of remission under Section 432 of the CrPC,
the appropriate Government must obtain the opinion
(with reasons) of the Presiding Judge of the convicting or
confirming Court. Remissions can, therefore, be given only
on a case-by-case basis and not in a wholesale manner.
(ii) Further, in V. Sriharan, it was observed that the declaration
of law made by this Court in Sangeet referred to above,
is correct and further the procedure to be followed under
Section 432(2) of the CrPC is mandatory. The manner in
which the opinion is to be rendered by the Presiding Judge
can always be regulated and settled by the concerned
High Court and the Supreme Court by stipulating the
required procedure to be followed as and when any such
application is forwarded by the appropriate Government.
Therefore, it was observed that the suo motu power of
remission cannot be exercised under Section 432(1) of the
CrPC and it can only be initiated based on an application
of the person convicted under Section 432(2) of the CrPC
and the ultimate order of remission should be guided by
the opinion to be rendered by the Presiding Officer of the
Court concerned.
[2024] 1 S.C.R. 891
Bilkis Yakub Rasool v. Union of India & Others
(iii) This Court, in Ram Chander, has specifically dealt with the
value of the opinion of the Presiding Judge with reference
to paragraph 61 of Sangeet and paragraphs 148 and
149 of V. Sriharan referred to above and observed in
paragraphs 25 and 26 as under:
“25. In Sriharan (supra), the Court observed that
the opinion of the presiding judge shines a light on
the nature of the crime that has been committed,
the record of the convict, their background and other
relevant factors. Crucially, the Court observed that
the opinion of the presiding judge would enable the
government to take the ‘right’ decision as to whether
or not the sentence should be remitted. Hence, it
cannot be said that the opinion of the presiding judge
is only a relevant factor, which does not have any
determinative effect on the application for remission.
The purpose of the procedural safeguard under
Section 432 (2) of the CrPC would stand defeated
if the opinion of the presiding judge becomes just
another factor that may be taken into consideration
by the government while deciding the application for
remission. It is possible then that the procedure under
Section 432 (2) would become a mere formality.
26. However, this is not to say that the appropriate
government should mechanically follow the opinion
of the presiding judge. If the opinion of the presiding
judge does not comply with the requirements of
Section 432 (2) or if the judge does not consider
the relevant factors for grant of remission that have
been laid down in Laxman Naskar v. Union of India
(supra), the government may request the presiding
judge to consider the matter afresh.”
(iv) In paragraph 27, it was further observed that the Presiding
Judge in the said case had not taken into account the
factors which have been laid down in Laxman Naskar and
that the opinion was a mechanical one bereft of reasons
and therefore, inadequate and not in accordance with law.
Consequently, the petitioner’s application for remission was
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directed to be considered afresh with a direction to the
Special Judge, Durg to provide an opinion on the application
afresh accompanied with adequate reasoning, taking into
account all the relevant factors that govern the grant of
remission as laid down in Laxman Naskar. A direction
was issued to State of Chhattisgarh in the said case to
take a final decision on the application for remission afresh
within a month after receiving the opinion of the Special
Judge, Durg. Consequently, the petition filed under Article
32 was allowed in the aforesaid terms.
52.2. Thus, the consistent view of this Court which emerges is that
the expression “may” has to be interpreted as “shall” and as a
mandatory requirement under sub-section (2) of Section 432
of the CrPC. The said provision has sufficient guidelines as
to how the opinion must be provided by the Presiding Judge
of the Court which has convicted the accused inasmuch as –
(i) the opinion must state as to whether the application for
remission should be granted or refused and for either of
the said opinions, the reasons must be stated;
(ii) naturally, the reasons must have a bearing on the facts
and circumstances of the case;
(iii) the reasons must be in tandem with the record of the trial
or of such record thereof as exists;
(iv) 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.
52.3. 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, it cannot be held that the expression “may” in the
said provision is not mandatory nor can it 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.
[2024] 1 S.C.R. 893
Bilkis Yakub Rasool v. Union of India & Others
52.4. In the instant case, what is interesting is that when respondent
No.3 - Radheshyam Bhagwandas Shah filed his application
for remission before the State of Maharashtra pursuant to the
order of the Gujarat High Court dated 17.07.2019, the State of
Maharashtra sought the opinion of the Special Judge at Mumbai
who gave a negative opinion. This was one of the reasons for
respondent No.3 to file the Writ Petition (Crl.) No.135 of 2022
before this Court. However, subsequently, when a direction was
issued by this Court to the first respondent State of Gujarat
to consider the application for remission, the opinion of the
local Sessions Court at Dahod was obtained and the opinion
of the Special Judge, Mumbai where the trial had taken place
was ignored. The Sessions Court at Dahod obviously had not
complied with the mandatory requirements noted above under
sub-section (2) of Section 432 of the CrPC inasmuch as the
opinion was not forwarded along with reasons having regard
to the record of the trial as no trial had taken place before the
Sessions Court, Dahod. Further, the Presiding Judge of the
Sessions Court, Dahod also did not forward any certified copy
of the record of the trial. Moreover, learned Sessions Judge
at Dahod was also a member of the Jail Advisory Committee.
52.5. We further observe that the Presiding Judge of the Court before
which the conviction happens can never be a Member of the Jail
Advisory Committee, inasmuch he is an independent authority
who should give his opinion on the application seeking remission
which is a mandatory requirement as per the requirements of
sub-section (2) of Section 432. In the instant case, the opinion
given by the District & Sessions Judge at Dahod is vitiated for
two reasons: firstly, because he was not the Presiding Judge
before which the conviction of respondent Nos.3 to 13 took
place; and, secondly, if the Presiding Judge of the Court where
the conviction occurred is an independent authority which must
be consulted by the appropriate Government then he could
not have been a Member of the Jail Advisory Committee as
in the instant case.
52.6. On perusal of the counter affidavit of the respondent-State
of Gujarat, it is noted that pursuant to the applications filed
by respondent Nos.4 to 13(respondent No.3 had filed his
application before State of Maharashtra on 01.08.2019) seeking
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pre-mature release or remission, opinion of the Special Judge
(CBI), City Civil & Sessions Court, Greater Mumbai was taken
by the State of Gujarat and in respect of all the respondent
Nos.3 to 13 the categorical opinion was that having regard to
the Government’s Resolution dated 11.04.2008, issued by the
State of Maharashtra, said prisoners should not be released
pre-maturely. Had the State of Maharashtra considered the
applications of respondent Nos.3 to 13 for remission, this
vital opinion of the Presiding Judge of the Court which had
convicted them would have carried weight in the mind of the
Government of the State of Maharashtra as well as the terms
of the Government’s Resolution dated 11.04.2008 which was
the applicable policy for remission. In fact, the first respondent,
namely, the Government of the State of Gujarat, which usurped
the power of the Government of the State of Maharashtra,
simply brushed aside the opinion of the Special Judge (CBI),
Greater Mumbai. Instead the opinion of the Sessions Judge,
Godhra, District Panchmahal within whose jurisdiction the
offences had occurred and who was a member of the Jail
Advisory Committee was highlighted by Sri S.V. Raju, learned
ASG appearing for the State of Gujarat. Although this opinion
is also a negative opinion, the same is not in accordance with
sub-section (2) of Section 432 of the CrPC and, therefore, is
of no consequence except when viewed from the prism of
being an opinion of one of the members of the Jail Advisory
Committee, Dahod Jail.
53. As we have held, in the first place, the first respondent State of
Gujarat was not at all the appropriate Government, therefore, the
proceedings of the Jail Advisory Committee of Dahod Jail, which
had recommended remission is itself vitiated and further, there is
no compliance of sub-section (2) of Section 432 of the CrPC in the
instant case in as much as the said opinion was not considered
by the appropriate Government. On that score also, the orders of
remission dated 10.08.2022 are vitiated.
Sentence in default of fine:
54. Learned counsel Mrs. Shobha Gupta contended that respondent
Nos.3 to 13 had not paid the fine and therefore, in the absence of
payment of fine, the default sentence ought to have been undergone
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by the said respondents. This aspect of the matter has been lost sight
of or ignored while granting the orders of remission and therefore,
the orders of remission are vitiated on that score.
54.1. In response to the above arguments, learned senior counsel,
Sri Sidharth Luthra, at the outset, submitted that although
applications for payment of fine have been filed and are pending
consideration before this Court, nevertheless respondent Nos.
3 to 13 have now on their own tendered the fine and the same
has been accepted by the Special Court at Mumbai.
54.2. In this regard, following judgments were referred to at the bar:
(a) In Shantilal vs. State of Madhya Pradesh, (2007) 11 SCC 243
(“Shantilal”), the contention was that the term of imprisonment
in default of payment of fine is not a sentence. It is a penalty
which a person incurs on account of non-payment of fine.
This sentence must be undergone by the offender unless it is
set-aside or remitted in part or in whole, either in appeal or in
revision or in other appropriate judicial proceedings or otherwise.
However, a term of imprisonment ordered in default of payment
of fine stands on a different footing. A person is required to
undergo imprisonment for default in payment of fine either
because he is unable to pay the amount of fine or refuses to
pay such amount. He, therefore, can always avoid to undergo
imprisonment in default of payment of fine by paying such
amount. It is, therefore, not only the power, but the duty of the
Court to keep in view the nature of offence, and circumstances
under which it was committed, the position of the offender and
other relevant considerations before ordering the offender to
suffer imprisonment in default of payment of fine.
(i) The further question considered was, whether, a Court
of law can order a convict to remain in jail in default of
payment of fine. It was observed that even in the absence of
a specific provision in the law empowering a Court to order
imprisonment in default of payment of fine, such power is
implicit and is possessed by a Court administering criminal
justice. In this regard, reference was made to Sections 40
to 42 and Sections 63 to 70 IPC as well as Section 30of
the CrPC which deals with a sentence of imprisonment in
default of payment of fine and Section 25 of the General
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Clauses Act, 1897 which deals with recovery of fine. It
was observed that even in the absence of a provision to
the contrary viz. that no order of imprisonment can be
passed in default of payment of fine, such power is explicit
and can always be exercised by a court having regard to
Section 30 of the CrPC.
(b) In Sharad Hiru Kolambe vs. State of Maharashtra, (2018) 18
SCC 718 (“Sharad Hiru Kolambe”), the point for consideration
was regarding quantum of fine that was imposed by way of
a default sentence in case of non-payment of fine. It was
contended that though the substantive sentence stood remitted
and the appellant was directed to be released on completion of
fourteen years of actual sentence, the appellant would still be
inside till he completes twenty-four years. This was because
the trial court in the said case directed “all sentences shall run
concurrently”, therefore, all default sentences must also run
concurrently inter se. It was contended that the default sentences
so directed was unconscionable and excessive.
(i) This Court speaking through Lalit, J. (as the learned Chief
Justice then was) observed that if the term of imprisonment
in default of payment of fine is a penalty which a person
incurs on account of non-payment of fine and is not a
sentence in a strict sense, imposition of such default
sentence is completely different and qualitatively distinct
from a substantive sentence. Theoretically, if the default
sentences awarded in respect of imposition of fine in
connection with two or more offences are to be clubbed
or directed to run concurrently, there would not be any
occasion for the persons so sentenced to deposit the
fine in respect of the second or further offences. It would
effectively mean imposition of one single or combined
sentence of fine. Such an exercise would render the
very idea of imposition of fine with a deterrent stipulation
while awarding sentence in default of payment of fine to
be meaningless. If imposition of fine and prescription of
mandatory minimum is designed to achieve a specific
purpose, the very objective will get defeated if the default
sentences were directed to run concurrently. Therefore,
the contention regarding concurrent running of default
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sentences was rejected. It was observed that there is no
power of the Court to order the default sentences to run
concurrently but if a prisoner does not pay the fine or
refuses to pay the fine then he must undergo the default
sentences so imposed.
(c) In Shahejadkhan Mahebubkhan Pathan vs. State of Gujarat,
(2013) 1 SCC 570 (“Shahejadkhan Mahebubkhan Pathan”),
this Court speaking through Sathasivam, J. (as the learned
Chief Justice then was) held that the term of imprisonment in
connection with a fine is not a sentence but a penalty which
a person incurs on account of non-payment of fine. But on
the other hand, if a sentence is imposed, an offender must
undergo the same unless it is modified or varied in part or
whole in the judicial proceedings or by way of remission. But
the imprisonment order in default of fine stands on different
footing. When such a sentence on default of payment of fine is
imposed, the person is required to undergo imprisonment either
because he is unable to pay the fine or refuses to do so. The
only way he can avoid to undergo imprisonment in default of
payment of fine is by paying such amount.
54.3. The aforesaid dicta would therefore clearly indicate that the
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. The latter is not a
substantive sentence for commission of the offence but is in
the nature of penalty for default in payment of fine.
54.4. In the instant case, while considering the applications for
remission, the Jail Advisory Committee did not take into
consideration whether respondent Nos. 3 to 13 convicts had
tendered the fine which was imposed by the Special Court and
affirmed by the High Court as well as by this Court. Therefore,
this is an instance of leaving out of a relevant consideration
from the gamut of facts which ought to have been considered
by the Jail Advisory Committee. Had the respondent State of
Gujarat considered the opinion from the Presiding Judge of the
Court which had convicted, respondent Nos.3 to 13 herein, the
aspect regarding non-payment of fine would have surfaced.
In the absence of non-compliance with the direction to pay
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fine, there would be default sentence which would be in the
nature of penalty. The 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. Realising this, during the pendency of these
writ petitions, applications were filed seeking permission
to tender the fine amount. However, even before the said
applications could be considered and orders passed thereon,
the respondents convicts have paid the fine amount and have
produced receipts in that regard. This fact would not alter the
consideration of the case of respondent Nos. 3 to 13 herein
inasmuch the fact of payment of fine ought to have been a point
which had to be taken into consideration prior to the passing
of the orders of remission as there could be no relaxation in
the sentence with regard to payment of fine. There can only be
reduction in the substantive sentence to be undergone by way
of imprisonment for which the application seeking remission
is filed. Remission of sentence, which is for reduction of the
period of imprisonment, cannot however relate to the payment
of fine at all. Since there was non-application of mind in this
regard, the impugned orders of remission are contrary to law
and are liable to be quashed on this count as well.
In view of the above, the other contentions based on Wednesbury
principles do not require consideration in the present case and hence
all contentions on the said aspect are left open.
55. We however would like to indicate the factors that must be taken
into account while entertaining an application for remission under the
provisions of the CrPC, which are however not exhaustive of the tests
which we have discussed above. They can be adumbrated as under:
(a) The application for remission under Section 432 of the CrPC
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.
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(b) A consideration for remission must be by way of an application
under Section 432 of the CrPC which has to be made by the
convict or on his behalf. In the first instance whether there is
compliance of Section 433A of the CrPC must be noted inasmuch
as a person serving a life sentence cannot seek remission
unless fourteen years of imprisonment has been completed.
(c) The guidelines under Section 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.
While doing so it is necessary to follow the requirements of the
said Section which are highlighted by us, namely,
(i) the opinion must state as to whether the application for
remission should be granted or refused and for either of
the said opinions, the reasons must be stated;
(ii) the reasons must have a bearing on the facts and
circumstances of the case;
(iii) the opinion must have a nexus to the record of the trial
or of such record thereof as exists;
(iv) 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.
(d) The policy of remission applicable would therefore be the Policy
of the State which is the appropriate Government and which
has the jurisdiction to consider that application. The 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.
(e) While considering an application for remission, there cannot
be any abuse of discretion. In this regard, it is necessary to
bear in mind the following aspects as mentioned in Laxman
Naskar, namely, -
(i) Whether the offence is an individual act of crime without
affecting the society at large?
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(ii) Whether there is any chance of future recurrence of
committing crime?
(iii) Whether the convict has lost his potentiality in committing
crime?
(iv) Whether there is any fruitful purpose of confining this
convict any more?
(v) Socio-economic condition of the convict’s family.
(f) There has also to be consultation in accordance with Section
435 of the CrPC wherever the same is necessitated.
(g) The 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 sub-section (2) of
Section 432 of the CrPC.
(h) Reasons for grant or refusal of remission should be clearly
delineated in the order by passing a speaking order.
(i) When an application for remission is granted under the provisions
of the Constitution, the following among other tests may apply
to consider its legality by way of judicial review of the same.
(i) That the order has been passed without application of mind;
(ii) that the order is mala fide;
(iii) that the order has been passed on extraneous or wholly
irrelevant considerations;
(iv) that relevant materials have been kept out of consideration;
(v) that the order suffers from arbitrariness.
Summary of Conclusions:
56. On the basis of the aforesaid discussion, we arrive at the following
summary of conclusions:
a) We hold that the Writ Petition (Crl.) No.491 of 2022 filed under
Article 32 of the Constitution before this Court is maintainable
and that it was not mandatory for the petitioner therein to have
filed a writ petition under Article 226 of the Constitution before
the Gujarat High Court.
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b) Since Writ Petition (Crl.) No.491 of 2022 has been filed by one of
the victims invoking Article 32 of the Constitution before this Court
which has been entertained by us, the question, whether, the writ
petitions filed as public interest litigation assailing the impugned
orders of remission dated 10.08.2022 are maintainable, is kept
open to be raised in any other appropriate case.
c) 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 respondent Nos.3 to 13 herein as it was not the appropriate
Government within the meaning of the aforesaid provisions.
Hence, the orders of remission dated 10.08.2022 made in
favour of respondent Nos.3 to 13 herein are illegal, vitiated
and therefore, quashed.
d) While holding as above, 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.
i) Further, the petitioner in Writ Petition (Crl.) No.491 of 2022
not being a party to the said writ proceeding, the same is
not binding on her and she is entitled in law to question
the orders of remission dated 10.08.2022 from all angles
including the correctness of the order dated 13.05.2022.
ii) In addition to the above, the said order, 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. Hence,
the impugned orders of remission dated 10.08.2022 are
quashed on the above grounds.
e) Without prejudice to the aforesaid conclusions, we further hold
that the impugned orders of remission dated 10.08.2022 passed
by the respondent-State of Gujarat in favour of respondent Nos.3
to 13 are not in accordance with law for the following reasons:
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i) That the 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 in
the instant case.
ii) Consequently, the Policy dated 09.07.1992 of the State
of Gujarat was not applicable to the case of respondent
Nos. 3 to 13 herein.
iii) That opinion of the Presiding Judge of the Court before
which the conviction of respondent Nos.3 to 13 was made in
the instant case i.e. Special 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 respondent Nos.3 to 13 herein.
The opinion of the Sessions Judge at Dahod was wholly
without jurisdiction as the same was in breach of sub-
section (2) of the Section 432 of the CrPC.
iv) That while considering the applications seeking remission,
the Jail Advisory Committee, Dahod and the other
authorities had lost sight of the fact that respondent Nos.3
to 13 herein had not yet paid the fine ordered by the
Special Court, Mumbai which had been confirmed by the
Bombay High Court. Ignoring this relevant consideration
also vitiated exercise of discretion in the instant case.
56.1. Having declared and held as such, we now move to point No.5.
Point No.5: What Order?
57. Respondent Nos.4 to 13, who had made applications to the first
respondent-State of Gujarat seeking remission of their sentences,
have been granted remission by the impugned orders dated
10.08.2022, while it is not known whether respondent No.3 had
made any application to seek remission to the State of Gujarat as
the same is not adverted to in the counter affidavit. The application
seeking remission by respondent No. 3 before the State of Gujarat
has not been brought on record as he had filed his application before
the State of Maharashtra. Respondent Nos. 3 to 13 have been
released pursuant to the orders of remission dated 10.08.2022 and
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Bilkis Yakub Rasool v. Union of India & Others
set at liberty. We have now quashed the orders of remission. Since
10.08.2022, respondent Nos. 3 to 13 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 Section 432 of the CrPC. So long as the said
orders impugned were not set-aside, they had carried the stamp of
validity and hence till date the impugned orders of remission were
deemed to have been valid. Respondent Nos. 3 to 13 are out of
jail. Since we have quashed the orders of remission, what follows?
58. In our view, the most important constitutional value is personal
liberty which is a fundamental right enshrined in Article 21 of our
Constitution. It is in fact an inalienable right of man and which can
be deprived of or taken away only in accordance with law. That is
the quintessence of Article 21. But, 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 est. Having quashed the orders of remission
made in favour of respondent Nos. 3 to 13, should they be sent back
to prison? Whether respondent No. 3 to 13 must have the benefit
of their liberty despite obtaining the same from an incompetent
authority with the aid of an order of this Court obtained fraudulently
and therefore, the same being illegal and carry a stamp of being
a nullity and non est in the eye of law? This has been a delicate
question for consideration before us.
59. Learned counsel for the petitioner in Writ Petition (Crl.) No.491 of
2022 has vehemently contended that there being failure of rule of law
in the instant case, justice would be done by this Court only when
respondent Nos. 3 to 13 are returned to the prison. They can be
granted remission only in accordance with law. On the other hand,
respective learned senior counsel and counsel for the respondents
Nos. 3 to 13 who have appeared have pleaded that they have been
enjoying liberty since 10.08.2022 and in spite of there being any
error in the orders of remission, although the orders of remission
may be quashed, by exercising jurisdiction under Article 142 of the
Constitution, these respondents may not be subjected to imprisonment
once again and they may remain out of jailas free persons. In other
words, their liberty may be protected.
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60. We have given our anxious thought to the aforesaid divergent
contentions. The primary question that now arises for our
consideration is this: when is liberty of a person protected? Article
21 of the Constitution states that no person shall be deprived of his
liberty except in accordance with law. Conversely, 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 rule of law prevail over
personal liberty of a person or vice-versa? Further, 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 would
prevail under our Constitution including the right to equality and equal
protection of law as enshrined in Article 14 thereof. In other words,
whether liberty of a person would have any meaning at all under our
Constitution in the absence of rule of law or the same being ignored
or turned a blind eye? Can rule of law surrender to liberty earned as
a consequence of its breach? Can breach of rule of law be ignored
in order to protect a person’s liberty that he is not entitled to?
61. Before we proceed further, we wish to reiterate what this Court has
spoken on the concept of rule of law through its various judgments.
62. 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 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
under Article 14 of the Constitution.
63. More importantly, 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. The concept of rule of law is closely
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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. Therefore, the judiciary has to perform its duties and function
effectively and remain true to the spirit with which they are sacredly
entrusted to it.
In our view, 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.
64. Further, in a democracy where rule of law is its essence, it has to be
preserved and enforced particularly by courts of law. Compassion
and sympathy have no role to play where rule of law is required to
be enforced. If the rule of law has to be preserved as the essence
of democracy, it is the duty of the courts to enforce the same without
fear or favour, affection or ill-will.
65. The manner of functioning of the court in accord with the rule of law
has to be dispassionate, objective and analytical. Thus, everyone
within the framework of the rule of law must accept the system,
render due obedience to orders made and in the event of failure
of compliance, the rod of justice must descend down to punish.
It is mainly through the power of judicial review conferred on an
independent institutional authority such as the High Court or the
Supreme Court that the rule of law is maintained and every organ of
the State is kept within the limits of the law. Thus, those concerned
with the rule of law must remain unmindful and unruffled by the
ripples caused by it. Rule of law does not mean protection to a
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fortunate few. The very existence of the rule of law and the fear of
being brought to book operates as a deterrent to those who have no
scruples in killing others if it suits their ends. In the words of Krishna
Iyer, J., “the finest hour of the rule of law is when law disciplines
life and matches promise with performance”. In ADM, Jabalpur vs.
Shivakant Shukla, H.R. Khanna, J. in his dissenting judgment said,
“rule of law is the antithesis of arbitrariness”.
66. In this context, it would also be useful to refer to the notion of justice
in the present case. It is said that justice should remain loyal to the
rule of law. In our view, justice cannot be done without adherence
to rule of law. This Court has observed “the concept of “justice”
encompasses not just the rights of the convict, but also of the victims
of crime as well as of the law abiding section of society who look
towards the courts as vital instruments for preservation of peace
and the curtailment or containment of crime by punishing those who
transgress the law. If the convicts can circumvent the consequences
of their conviction, peace, tranquility and harmony in society will be
reduced to chimera.” (vide Surya Baksh Singh vs. State of UP,
(2014) 14 SCC 222)
67. This Court has further observed that the principle of justice is an inbuilt
requirement of the justice delivery system and indulgence and laxity
on the part of the law courts would be an unauthorized exercise of
jurisdiction and thereby, put a premium on illegal acts. Courts have
to be mindful of not only the spelling of the word “justice” but also
the content of the concept. Courts have to dispense justice and not
justice being dispensed with. In fact, the strength and authority of
courts in India are because they are involved in dispensing justice.
It should be their life aim.
68. The faith of the people in the efficacy of law is the saviour and succour
for the sustenance of the rule of law. Justice is supreme and justice
ought to be beneficial for the society. Law courts exist for the society
and ought to rise to the occasion to do the needful in the matter.
Respect for law is one of the cardinal principles for an effective
operation of the Constitution, law and the popular Government. The
faith of the people is the source to invigorate justice intertwined with
the efficacy of law. Therefore, it is the primary duty and the highest
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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.
69. In the same vein, we say that Article 142 of the Constitution cannot
be invoked by us in favour of respondent Nos.3 to 13 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 in our view, are null and void and therefore nonest
in the eye of law. Further, we cannot be unmindful of the conduct
of respondent Nos.3 to 13, particularly respondent No.3 who has
abused the process of law and the court in obtaining remission. In
such a situation, arguments with an emotional appeal though may
sound attractive become hollow and without substance when placed
in juxtaposition with our reasoning on the facts and circumstances
of this case. Therefore, in complying with the principles of rule of
law which encompasses the principle of equal protection of law as
enshrined in Article 14 of the Constitution,we hold that ‘deprivation
of liberty’ vis-à-vis respondent Nos.3 to 13 herein is justified in as
much as the said respondents have erroneously and contrary to law
been set at liberty. One cannot lose sight of the fact that the said
respondents were all in prison for a little over fourteen years (with
liberal paroles and furloughs granted to them from time to time).
They had lost their right to liberty once they were convicted and
were imprisoned. But, they were released pursuant to the impugned
remission orders which have been quashed by us. Consequently, the
status quo ante must be restored. We say so for another reason in
the event respondent Nos.3 to 13 are inclined to seek remission in
accordance with law,they have to be in prison as they cannot seek
remission when on bail or outside the jail. Therefore, for these reasons
we hold that the plea of ‘protection of the liberty’ of respondent Nos.3
to 13 cannot be accepted by us.
70. We wish to emphasize that in the instant case rule of law must
prevail. If ultimately rule of law is to prevail and the impugned orders
of remission are set-aside by us, then the natural consequences must
follow. Therefore, respondent Nos.3 to 13 are directed to report to
the concerned jail authorities within two weeks from today.
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Conclusion:
71. Consequently, we pass the following orders:
a. Writ Petition (Crl.) No.491 of 2022 is allowed in the aforesaid
terms.
b. Other Writ Petitions stand disposed of.
c. Pending applications, if any, stand disposed of.
72. Before parting, we place on record our appreciation of all learned
senior counsel, learned ASG and learned counsel appearing for the
respective parties for their effective assistance in the matter.
Headnotes prepared by: Nidhi Jain Result of the case:
WP(Crl) No. 491 of 2022 allowed;
Other writ petitions disposed of.
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