NEW DELHI: The Gujarat government has asked the Supreme Court to reconsider its January 8, 2024 judgement in the Bilkis Bano case for making "highly unwarranted" and "extreme observations" in quashing premature release of 11 life term convicts.
In its petition, the state government cited several errors on the face of record, besides contending that the observation that the Gujarat government had "acted in tandem and was complicit with the accused" caused serious prejudice to it.
It questioned the observation by the court holding the Gujarat government guilty of “usurpation of power” and “abuse of discretion” for complying with the previous order of this court.
The state government said another co-ordinate bench of this court on May 13, 2022 held the State of Gujarat to be the “appropriate government” under Section 432(7) of CrPC, and issued a mandamus to decide the remission application of the one of the accused in accordance with the remission Policy of 1992 which was in existence at the time of conviction.
"This court failed to appreciate that the direction passed in the judgment of May 13, 2022 being a “mandamus”, the state being a party to the said proceedings, was bound to comply with the direction," it said.
While directing all 11 convicts to surrender within two weeks, the court had on January 8, 2024 declared the previous judgment as "nullity and non est in the eyes of law" on the ground that it was obtained by playing fraud upon the court and non disclosure and misrepresentation of facts.
With regard to remarks on “usurpation of power”, the state government said as a matter of record, it has consistently submitted before this court as well as the High Court of Gujarat, that the State of Maharashtra is the “appropriate government” for the purpose.
"Non-filing of the review petition by the state government was not only unnecessary, the order of December 13, 2022 passed by this court dismissing the review petition by the victim, shows that no “fraud” as held by this court has been committed," it said.
"Even otherwise, by no stretch of imagination, the State of Gujarat can be held to have “acted in tandem and complicit with Respondent No 3” in perpetuating the so-called fraud, by non-filing of a review petition, which in fact, as a matter was record was heard by this court and dismissed by way of a speaking order," it added.
On application of remission policy of July 09, 1992, the state government said, "It is settled law that it is the policy in existence at the time of conviction or if a more liberal policy is in existence at the time of consideration of the application, which would be applicable in deciding the application of pre-mature release. The position of law qua the applicability of policy is being invariably followed by this court in a catena of judgements/orders".
A bench of Justices B V Nagarathna and Ujjal Bhuyan had on January 8, 2024 had held the order of remission passed on August 10, 2022 was without jurisdiction and an act of usurpation of competence by the Gujarat government. The court had directed the convicts to surrender within two weeks.
The court had said the SC's May 13, 2022 order, is per incuriam and is not a binding precedent for it was contrary to the larger bench decisions of this Court, which held that it is the government of the State within which the offender is
sentenced, is the appropriate government that can consider an application seeking remission of a sentence.
In November, 2022, Bilkis Bano, the victim of gang rape during the 2002 Gujarat riots, herself approached the court against the state government's decision of premature release of 11 men.
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