Bilkis Bano gangrape: In May, SC had asked Gujarat govt to decide remission of convicts

By an order dated May 13, 2022, a bench of Justices Ajay Rastogi and Vikram Nath clarified that the government of Gujarat, where the offence was committed, and not Maharashtra, where the trial was shifted “in exceptional circumstances…for limited purpose for trial and disposal”, was the “appropriate government” to decide convict Radheshyam Bhagwandas Shah’s prayer for premature release as per applicable remission policy.

The ruling also said that “it has been settled by this Court in” the 2010 ruling in “State of Haryana Vs. Jagdish that the application for grant of premature release will have to be considered on the basis of the policy which stood on the date of conviction”. Accordingly, the court said the “policy (for remission) with which the petitioner has to be governed, applicable in the State of Gujarat on the date of conviction, indeed is” the one “dated 9th July 1992”.

Eleven convicts serving life imprisonment in the gangrape case were freed from Godhra sub-jail on Monday after a Gujarat government panel approved their application for remission of sentence, according to senior officials.

Shah had moved SC by way of a writ petition, seeking directions to the Gujarat government to consider his application for premature release under the 1992 policy. He pointed out that Gujarat HC had rejected his prayer on July 17, 2019, on the premise that since the trial has been concluded in Maharashtra, the application for premature release has to be filed in Maharashtra, and not in Gujarat.

Bilkis Bano case: 11 lifers convicted for Gujarat riots gangrape, murder set free in Godhra; Congress calls BJP govt order ‘unprecedented’ pic.twitter.com/b6bY503sC3

In August 2013, Bombay High Court had dismissed another convict Ramesh Rupabhai’s plea for remission taking the opposite view — the Bombay HC said it must be examined and decided as per policy applicable in Gujarat.

Setting aside the Gujarat HC judgement, the SC said, “In our considered view…the crime in the instant case was admittedly committed in 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 Gujarat, but the instant case was transferred in exceptional circumstances by this Court for limited purpose for trial and disposal to the neighbouring State (Maharashtra) by an order dated 6th August, 2004.”

The apex court said, “after conclusion of trial and the prisoner being convicted, [the case] stood transferred to the State where the crime was committed”, which remains the “appropriate Government for the purpose of Section 432(7) CrPC”.

Section 432 of the Code of Criminal Procedure deals with the power to remit sentences, and clause 7 explains the appropriate government concerned.

“Indisputedly, in the instant case, the crime was committed in Gujarat, which is the appropriate Government competent to examine the application filed for premature release and that is the reason for which the High Court of Bombay in Criminal Writ Petition…filed at the instance of co-accused Ramesh Rupabhai under its Order dated 5th August, 2013 declined his request to consider the application for premature release and left the application to be examined according to the policy applicable in Gujarat…” the top court said.

The SC ruling said that “in the instant case, once the crime was committed in Gujarat, after the trial been concluded and judgment of conviction came to be passed, all further proceedings have to be considered, including remission or premature release, as the case may be, in terms of the policy which is applicable in Gujarat where the crime was committed, and not the State where the trial stands transferred and concluded for exceptional reasons under orders of this Court”.

The court noted in the order that as per custody certificate placed on record, Shah had undergone a sentence of more than 15 years and 4 months without remission, as on April 1, 2022.