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Sunday, February 25, 2024

Bilkis Bano Gangrape: SC sets aside remission of 11 convicts by Guj govt

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The Supreme Court on Monday set aside the Gujarat government’s decision to grant remission (premature release) to 11 convicts sentenced to life term for the gang rape of Bilkis Bano and killing her family members during the 2002 Gujarat communal riots.

A bench comprising Justice BV Nagarathna and Justice Ujjal Bhuvan held that it was not Gujarat but the Maharashtra government that was competent to pass orders as the trial was conducted there.

The bench said that for passing the remission orders, it is not important to see the place of occurrence or the place of imprisonment of the accused, but it is important to see in which state the case was tried and the sentence was pronounced.

Ruling that since the trial was conducted in Maharashtra, the Gujarat government was not empowered to make such a decision. The court said it is apparent that the appropriate government had to obtain permission from the court before passing remission orders, which means the place of occurrence or the place of imprisonment of convicts is not relevant for remission.

The Court said, “The definition of appropriate government is otherwise. The government intends that the state under whom the convict was tried and sentenced is the appropriate government.

“This emphasises the place of trial rather than where the crime took place,” the court said.

It is not the government of the state within whose territory the offense has occurred that can pass the remission, and thus, the order by the Gujarat government has to be quashed,” the bench held.

The Gujarat government had granted remission to 11 accused, following a Supreme Court order passed in May 2022 by which the top court had allowed remission to an accused Radhyesham under the same terms and conditions.

The Supreme Court strongly came down upon the convict, Radhyesham, for playing fraud upon the Court by suppressing material facts and getting a favorable order from the top court in May 2022, which eventually led to the release of all the eleven convicts.

The Court said that the May 2022 judgment was obtained by fraud and therefore is not good in the eyes of the law.

The Supreme Court order came on a batch of petitions filed by Bilkis Bano and others challenging the remission granted to the convicts in the 2002 Gujarat communal riots. The 11 convicts who were granted remission are Jaswant Nai, Govind Nai, Shailesh Bhatt, Radhyesham Shah, Bipin Chandra Joshi, Kesarbhai Vohania, Pradeep Mordhiya, Bakabhai Vohania, Rajubhai Soni, Mitesh Bhatt, and Ramesh Chandana.

The Gujarat government had applied its remission policy to release the convicts, though the trial in the case had taken place in Maharashtra. The state government and the convicts had argued that the remission was considered after the May 2022 judgment by the Supreme Court, which directed the Gujarat government to decide the remission of one of the convicts, Radheshyam Bhagwandas Shah, under the 1992 remission plea within two months.

But the top court, in its verdict on Monday, noted that the May 2022 judgment came in an Article 32 petition filed by Radhey Shyam, one of the convicts (respondent no. 3), after his petition was dismissed by the Gujarat High Court, which said that the Maharashtra government will have to consider the plea for remission.

He then filed a remission application in Maharashtra, and the presiding judge of the trial and DGP Maharashtra gave their opinions on it.

Meanwhile, he moved the Supreme Court to suppress these facts, and the Supreme Court passed a judgment in his favour opining that the Gujarat government was the appropriate government.

The case pertains to the Special Court in Mumbai, which found the 11 accused guilty of charges of gang rape, rioting, and other charges and sentenced them to life imprisonment in 2008. This decision was upheld by a division bench of the Bombay High Court in 2017. The allegations against the 11 accused are that during the 2002 Gujarat riots, the convict gang raped Bano and also killed seven members of her family, including her three-year-old daughter.

The trial of the case was shifted from Gujarat to Mumbai, and the investigation was handed over to the Central Bureau of Investigation (CBI). Bano was 21 years old and was five months pregnant when she was gang raped.

A public interest litigation was also filed by former Communist Party of India MP Subhashini Ali, Trinamool Congress MP Mahua Moitra, and others challenging the remission.

All the convicts who were granted remission have already been out of jail for a year now, Senior Advocate Sidharth Luthra, appearing for the convicts, told the Supreme Court.

The convicts had already undergone 14 years of minimum prescribed imprisonment, and their conduct in jail was good, which can be considered for release, Luthra contended.

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