8 Jan 2024 10:17 AM GMT
The Supreme Court on Monday (January 8), while setting aside the premature release of eleven life convicts in the Bilkis Bano case, declared its May 2022 judgement - which directed the Gujarat Government to consider the remission applications of the convicts- as a nullity since the petitioner (one of the convicts) was found to have "played fraud" by suppressing material facts and making misleading statements.
The May 2022 judgment delivered by a bench comprising Justices Ajay Rastogi and Vikram Nath, which held that the government of the State where the offence took place had the jurisdiction to decide the remission, was also found to be per incuriam (bad in law) for ignoring precedents and the statutory mandate.
In the judgment pronounced today, the bench of Justices BV Nagarathna and Ujjal Bhuyan noted that the May 2022 direction was issued in a writ petition filed by one of the convicts, Radheshyam Shah, who had suppressed material facts like an earlier decision of the Gujarat High Court and the opinion of the presiding judge and made misleading statements. During the hearing that spanned several months, the two-judge bench was informed that Shah had first approached the Gujarat High Court for a direction to the State of Gujarat to consider his remission plea. The high court had disposed of his petition by observing that he should approach the appropriate government, i.e., the State of Maharashtra. A second application was also dismissed by the Gujarat High Court.
When Shah invoked the writ jurisdiction of the Supreme Court under Article 32 of the Constitution two years ago, he not only failed to mention the Gujarat High Court's orders relating to his remission plea, but also did not disclose his application before the Maharashtra government, the negative opinions by the Central Bureau of Investigation to which the investigation had been transferred and the Mumbai special court that had handed out the convictions and sentences, and Dahod police superintendent's and district judge's adverse opinion on the question of remission.
The convict, to persuade the bench led by the now-retired Justice Ajay Rastogi to rule in his favour, had also made a 'misleading statement' that a divergence of opinion between the Bombay and Gujarat high courts had necessitated his writ petition. The Bombay High Court's order, passed in 2013, dealt only with the transfer of the convicts in the Maharashtra jail to their parent state, i.e., the State of Gujarat. "In 2013, the issue of remission had not arisen at all. But the writ petitioner projected as if the two high courts had contracted themselves in their orders and therefore, he was constrained to file a writ petition invoking the jurisdiction of this court under Article 32 of the Constitution," the petitioners challenging the remission orders had submitted. Accepting this contention, the bench today held -
Neither the 2019 order of the Gujarat High Court could have been challenged in a writ petition invoking Article 32 of the Constitution, nor could it have been set aside in writ proceedings, the Supreme Court clarified, pointing to the decision of a nine-judge bench in Naresh Shridhar Mirajkar (1967).
The writ proceedings and the order obtained as a result of that, the court concluded, was pursuant to suppression of material facts and misleading statements. The petitioner-convict being guilty of suppressio veri suggestio falsi, the May 2022 order was a 'nullity' and 'non-est' in the eyes of law. Referring to a catena of Supreme Court judgments on the consequences of fraudulent conduct by parties in judicial proceedings, the bench held -
May 2022 judgment per incuriam
Apart from this, the Justice Nagarathna-led bench also found the May 2022 order to be hit by the doctrine of per incuriam. By holding that the Gujarat government was competent to decide the remission pleas of the 11 convicts, the court had gone against the plain letter of the statute as well as binding precedents, it said. In this connection, the latest judgment, which was pronounced today, touched upon the consequences of finding that an earlier decision was delivered per incuriam or subsilentio, concluding that such a decision could not be said to bind any of the parties to the litigation -
Notably, the Supreme Court also slammed the Gujarat government for 'acting in tandem' with the convict who had moved the top court seeking a direction for the consideration of his premature release application, noting a conspicuous absence of any application by the Gujarat government seeking a review of this order -
It may be noted that the review petition filed by Bilkis Bano against the May 2022 judgment was dismissed in December 2022.
Then, turning to the case of the other convicts who had neither approached the Supreme Court or any high court for a similar relief as Radheshyam Shah, the bench remarked, "None of the other convicts 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 premature release."
After an 11-day-long hearing that began in August, a division bench of Justices BV Nagarathna and Ujjal Bhuyan had reserved its judgment in this case on October 12. Advocate Shobha Gupta appeared for Bilkis, while Senior Advocates Indira Jaising, and advocates Vrinda Grover, Aparna Bhat, Nizamuddin Pasha, and Pratik R Bombarde represented various public interest litigants. Additional Solicitor-General SV Raju appeared for both the State of Gujarat and the Union of India. The now-released convicts were represented by Senior advocates Sidharth Luthra, Rishi Malhotra, S Guru Krishnakumar, Advocate Sonia Mathur, and others.
The Supreme Court on Monday morning directed the 11 convicts to report to the concerned jail authorities within two weeks and surrender. "Rule of law must prevail. Since the remission orders are set aside, the natural consequences must follow."
Other reports about the judgment can be read here.
Case Title
Bilkis Yakub Rasool v. Union of India & Ors. | Writ Petition (Criminal) No. 491 of 2022
Citation : 2024 LiveLaw (SC) 22
Click here to read the judgment