Published on: 01 December 2022 at 13:01 IST
Aggrieved Bilkis Bano approached Supreme Court challenging the Gujarat Govt. decision of premature release of the 11 convicts sentenced to life for gang rape and murder during 2002 Gujarat riots.
The review petition had been filed by prosecutrix against the Supreme Court’s decision to allow the Gujarat Governmnet to decide on the remission of the convicts.
The appellant submits that Supreme Court’s direction to the Gujarat Government to consider the remission application was passed in a writ petition filed by one convict Radheshyam Bhagwandas Shah.
Since a judgment of a High Court cannot be challenged in a writ petition filed under Article 32, the apex court’s judgement dated May 13, 2022 suffers from an error apparent on record, argues the review petition filed through Advocate Shobha Gupta.
As per the review petition, the convict fails to mention the nature of crime for which he was sentenced. This was done with an intention to mislead court proceedings in order to receive favourable order. The name of prosecutrix was concealed intentionally, which has become synonymous with the brutality of Gujarat Riots.
The petition further adds that the application of the convicts remains concealed the fact that the Gujarat HC had dismissed their remission application with a specific observation that the appropriate government to exercise the powers of remission would be the State of Maharashtra and not the State of Gujarat.
The SC decision according to aggrieved would have been different if the convict had disclosed all the facts in his writ petition.
The review petition also claims that Section 432(7)(b) of the CrPC, which mandates that the government of the state in which the offender is sentenced must take the remission into consideration, conflicts with the Supreme Court’s decision that the Gujarat Government is the “appropriate government” to consider the remission.
The State of Maharashtra, where the trial was held, is required to take the remission application into consideration due to the unambiguous language of the statute. This principle has been established in precedents, such as the decision rendered by the Constitution Bench in V. Sriharan v. UOI (2016). Therefore, it is claimed in the review petition that the May 13, 2022, verdict was rendered “per incuriam”.
The petition further claims that the prosecutrix Bilkis Bano was not even designated a party respondent in the remission case and that as a result, she was completely unaware of the filing or status of the writ petition until the inmates were released early on August 15, 2022.
In order to challenge the remission orders giving premature release to all 11 convicts, Bano has filed a review petition together with an application for the listing of the review case in an open court for a hearing on merit.
Earlier this year, Justice Rastogi led bench ruled that Gujarat Govt. has jurisdiction to consider the remission plea of the offence as it took place in Gujarat. The Gujarat HC had earlier held the remission had to be considered by the Maharashtra Government, as the trial was held in Mumbai, upon transfer from Gujarat.
All the eleven convicts were released on August 15, 2022.
Later, on August 15, 2022, all the eleven convicts were released. Visuals of the recently released prisoners went viral on digital platform receiving heroic welcomes leads to outrage among several Sections.
Responding the petitions, the Gujarat Government has told the Supreme Court in an affidavit that the decision was taken after the approval of the Central Government, considering the good behaviour of the convicts and the completion of 14 years sentence by them. The State’s affidavit revealed that the CBI and the Presiding Judge of the Trial Court (Special CBI Court at Mumbai) objected to the release of the convicts on the ground that the offence was grave and heinous.
Now, the victim of the crime herself has approached the Court questioning the decision to release the convicts.