Summary
The Supreme Court quashed Gujarat’s remission orders releasing eleven convicts in the Bilkis Bano case because Maharashtra, where they were tried and sentenced, was the appropriate Government. The earlier Supreme Court order directing Gujarat to consider remission was obtained by suppression and misrepresentation and was a nullity; the convicts were directed to return to jail within two weeks.
Issues
- Whether the victim could challenge the remission orders directly under Article 32, and whether the connected public interest petitions were maintainable.
- Whether Gujarat or Maharashtra was the appropriate Government under Section 432(7) CrPC after the trial was transferred to Maharashtra.
- Whether the Supreme Court order dated 13 May 2022 could sustain the remission orders despite suppression of material facts and conflict with binding larger-Bench decisions.
- Whether the remission process complied with the mandatory judicial-opinion requirement and considered the unpaid fines.
- Whether Article 142 should protect the convicts’ continued liberty after the remission orders were quashed.
Provisions considered
- Article 32, Constitution of IndiaThe victim’s petition enforcing her fundamental rights was maintainable despite the alternative remedy under Article 226, particularly because the earlier Supreme Court direction would have constrained the High Court. The Court also reiterated that a High Court’s judicial order cannot be set aside in Article 32 proceedings. (¶¶ 22.2, 22.3, 39, 39.2, 56)
- Section 432(1), (2) and (7)(b), Code of Criminal Procedure, 1973The State where the offender was tried and sentenced is the appropriate Government, including after an interstate transfer of trial. Maharashtra alone had jurisdiction here; the place of the crime or subsequent imprisonment did not confer remission jurisdiction on Gujarat. (¶¶ 32, 33.4, 33.5, 33.6, 33.8, 46, 56)
- Section 432(2), Code of Criminal Procedure, 1973Obtaining the reasoned opinion of the Presiding Judge of the convicting or confirming court, supported by the trial record, is mandatory. Gujarat could not substitute the local Sessions Judge’s opinion for that of the Special Court in Mumbai or brush the latter aside. (¶¶ 51, 52.1, 52.2, 52.3, 52.4, 52.5, 52.6, 53)
- Section 432(5), proviso, Code of Criminal Procedure, 1973The Court noted the statutory requirement that the described remission petition concerning an adult male prisoner, other than a fine sentence, cannot be entertained unless he is in jail. The convicts had to return to prison before seeking remission in accordance with law. (¶¶ 32, 32.1, 69)
- Section 433A, Code of Criminal Procedure, 1973The minimum fourteen-year incarceration requirement is a substantive check on remission in the life-sentence cases covered by this provision. Completion of fourteen years does not itself confer an indefeasible right to release. (¶¶ 32, 32.3, 48.6, 55)
- Section 435, Code of Criminal Procedure, 1973The Court included consultation with the Central Government, wherever required, among the safeguards for considering remission; the concurrence obtained in this case did not cure Gujarat’s lack of jurisdiction. (¶¶ 32, 32.5, 46, 55, 56)
- Article 142, Constitution of IndiaThe Court declined to preserve the convicts’ liberty under Article 142 after quashing the remission orders, since doing so on this record would sustain the consequences of unlawful orders and defeat the rule of law. (¶¶ 59, 69, 70)
Held
- The victim’s Article 32 petition was maintainable to enforce her fundamental rights. Availability of Article 226 relief did not require dismissal, especially because the Gujarat High Court could not properly question the earlier Supreme Court direction identifying Gujarat as competent. Whether third-party PILs challenging remission are maintainable was left open. (¶¶ 22.2, 22.3, 27, 56)
- Under Section 432(7)(b), read with subsections (1) and (2), the appropriate Government is the Government of the State where the offender was tried and sentenced, even where the trial was transferred there from another State. Maharashtra therefore had remission jurisdiction; Gujarat’s orders were without jurisdiction and a nullity. Its exercise of Maharashtra’s power also constituted usurpation of power. (¶¶ 33.4, 33.5, 33.6, 33.8, 33.10, 46, 50.5, 56)
- Respondent No.3 obtained the order dated 13 May 2022 by suppressing his Maharashtra remission application and adverse recommendations and by misleading the Court about the High Court proceedings. Fraud vitiated that order and the consequential proceedings. The order was also per incuriam for departing from binding larger-Bench decisions on the appropriate Government and the bar against setting aside a High Court’s judicial order under Article 32. It could not bind the victim, who had not been a party. (¶¶ 36.4, 36.5, 37, 38, 39, 41, 43.1, 44, 45, 46, 56)
- The reasoned opinion required by Section 432(2) is mandatory, not optional. It must address the remission request with reasons related to the facts and trial record and be accompanied by the prescribed certified record. A deficient opinion may be referred back for fresh consideration; it need not be followed mechanically. Here Gujarat brushed aside the Special Court, Mumbai’s adverse opinion and relied on an opinion from a court that had not tried the case. (¶¶ 52.1, 52.2, 52.3, 52.4, 52.6, 53)
- The judge who must independently give the statutory opinion cannot also sit on the Jail Advisory Committee. The Court directed that the Committee should not include the District Judge, who might otherwise have to render that independent opinion. (¶¶ 52.5, 55)
- Imprisonment in default of payment of fine is a penalty distinct from substantive imprisonment for the offence. The unpaid fines and resulting default-imprisonment question were relevant considerations omitted in granting remission. The convicts’ subsequent payment during these proceedings did not cure that earlier non-application of mind; remission reducing imprisonment did not dispense with payment of the fines. (¶¶ 54.3, 54.4, 56)
- Remission requires individual consideration by the competent Government, compliance with statutory safeguards and a reasoned order. The applicable policy is that of the appropriate State, ordinarily the policy at conviction, subject to the Court’s stated qualification for a more benevolent policy. Relevant considerations include the offence’s societal impact, risk of recurrence, the convict’s remaining capacity for crime, the purpose of continued confinement and the family’s socio-economic condition. Gujarat’s 1992 policy could not govern these convicts. (¶¶ 48.6, 55, 56)
- Article 142 could not be used on these facts to preserve liberty obtained under the invalid remission orders. Their quashing required restoration of the prior position; the eleven convicts had to report to jail within two weeks and be in prison if they wished to seek remission in accordance with law. (¶¶ 69, 70, 71)
Result
Writ Petition (Crl.) No.491 of 2022 allowed. Gujarat’s remission orders dated 10 August 2022 in favour of respondents Nos.3–13 quashed; all eleven directed to report to the concerned jail authorities within two weeks. The order dated 13 May 2022 held a nullity and non est. Other writ petitions and pending applications disposed of; PIL maintainability left open.