Is SC’s Dismissal of Bilkis Bano’s review petition contrary to established law?

On December 13, the Supreme Court dismissed the review petition that was filed by Bilkis Bano seeking review of the court’s judgment in May, 2022 allowing the Gujarat government to decide remission application of the 11 convicts. It is pertinent to note here that the petition challenging the remission itself is still pending before the court and will be heard after the court’s winter vacation.

Eleven convicts were held guilty and sentenced to life for the gang rape and murder of Bilkis Bano and 14 of her family members including her 3-year-old daughter. The convicts released by an order of the Gujarat government on the India’s 75^th Independence Day (August 15, 2022) are: Jaswantbhai Nai, Govindbhai Nai, Shailesh Bhatt, Radhesham Shah, Bipin Chandra Joshi, Kesarbhai Vohania, Pradeep Mordhiya, Bakabhai Vohania, Rajubhai Soni, Mitesh Bhatt, and Ramesh Chandana.

It was on May 13, 2022 that the same bench comprising Justices Ajay Rastogi and Vikram Nath who had earlier held that the Gujarat government had the necessary jurisdiction to decide on the remission of the convicts since the offence was committed in the state. Applying this logic, the Gujarat government released the convicts under its remission policy of 1992, on August 15, 2022.

The review petition, filed by Bilkis Bano’s lawyer, Shobha Gupta, had contended that the Gujrata Hgh Court judgement contrary to Section 432(7) (b) of CrPC which states that the appropriate government to decide remission is the government of the State where the trial was held. A court in the state of Maharashtra had decided the case and sentenced the convicts in 2008. The transfer of this trial was the second such trial to be transferred out of Gujarat in 2004, following a spate of acquittals by Gujarat’s lower courts in grave targeted crimes committed against the minorities. Communalism Combat was one of the first media entities to interview Bilkis Bano, then a 19 year-old survivor, in person at the Godhra Relief Camp on March 22, 2002, the day former chairperson of the National Human Rights Commission (NHRC) Justice JS Verma was also visiting there. The FIR filed by Bilkis Bano to the DSP Dahod district may be read here. On April 12, 2004, the Supreme Court of India first ordered transfer in the famed Best Bakery Case. Thereafter, on April 19, 2004, the CBI –to whom the investigation in the Bilkis Bano case had been transferred filed it’s charge sheet following the intervention of the NHRC. Following this, the SC also transferred the trial in the Bilkis Bano case to Mumbai, Maharashtra. The charge sheet filed by the CBI may be read in the April-May 2004 Communalism Combat, here.

In her review petition through her counsel Shobha Gupta, Bilkis Bano has made serious arguments on the law and judicial precedence.

Section 432(7)(b) of CrPC defines “appropriate government” to be “the Government of the State within which the offender is sentenced or the said order is passed.”

The same bench, deciding the review, held that there appeared to be “no error apparent on the face of record, which may call for review of the judgment dated 13th May, 2022” and further held that the cases relied upon by the petitioner are of no assistance to her in this review petition.

“In our opinion, no case for review is made out. The review petition is accordingly dismissed,” the order reads.

The impugned Judgment of May 2022 observed that,

“11…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)”

The court further said that, “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.” (para 11)

Cases relied upon by Bilkis Bano

1.      State of Madhya Pradesh v. Ratan Singh & Ors. (1976) 3 SCC 470

In this case the apex court had held that “since the prisoner in the instant case was tried, convicted and sentenced in the State of Madhya Pradesh the State of Madhya Pradesh would be the appropriate Government to exercise the discretion for remission of the sentence under s. 401(1) of the Code of Criminal Procedure.” 

2.      Hanumant Dass v. Vinay Kumar & Ors. (1982) 2 SCC 177

In this case, the Supreme Court observed that according to section 432(7) of the CrPC the appropriate Government is the Government of the State of conviction and not the Government of the State where the offence was committed. It also relied upon the Ratan Singh judgement and held that in Ratan singh the case was based on Section 401 (High Court’s powers of revision) of CrPC but “the Code of Criminal Procedure, 1973 has put the matter completely beyond any controversy and reiterated the provisions of section 402(3) in sub-section (7) of section 432”. 

3.      Union of India v. V. Sriharan alias Murugan & Ors. (2016) 7 SCC 1

In this case, the constitution bench of the court while answering a question framed as to “Whether there can be two Appropriate Governments in a given case  under Section 432(7) of the Code?” stated thus,

“52.5… In other words,  cases  which  fall  within  the four corners of Section 432(7)(a) by  virtue  of  specific  Executive  Power conferred on the Centre, the same  will  clothe  the  Union  Government  the primacy with the status of Appropriate Government.   Barring  cases  falling under Section 432(7)(a), in all other cases where the offender is  sentenced or the sentence order is passed within the territorial jurisdiction  of  the concerned State, the State Government would be the Appropriate Government.”

Cirtique

An editorial piece in The Hindu noted that the bench’s view “goes against a statutory provision”. It further points out that the transfer of the trial from Gujarat to Maharashtra as noted by the court under “exceptional circumstances” was only because a fair trial was not possible in Gujarat.

Manu Sebastian also wrote in LiveLaw that the distinction made by the bench citing “exceptional circumstances” as the reason, cannot qualify as a logical explanation since the section 432(7) itself does not have any room for such an exception, it is clearly unequivocal in its language.

“The trial from one state will be transferred to another state only in exceptional and extraordinary circumstances. Also, there appears to be a sound logic behind this provision. Because, if free and fair trial is not possible in one state due to various factors, then the government of that State is also unlikely to take an independent decision regarding remission. So, the legislative intention behind this provision appears to be to ensure that remission is decided by the outside state free of political compulsions,” he added.

He further writes that there is no basis for the Court to invent an artificial ground of “exceptional reasons” for not following the statute and the binding precedents.

The Supreme Court’s May 13, 2022 judgement may be read here:

The Supreme Court’s December 13, 2022 order may be read here:

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