Maharashtra “appropriate government” to consider remission application, Gujarat acted in tandem with convict: Supreme Court in Bilkis Bano case

NEW DELHI: While setting aside the remission order granted to the 11 convicts in the Bilkis Bano gangrape, the Supreme Court stated that the State of Gujarat acted in tandem and was complicit with a convict who had earlier approached the Supreme Court seeking premature release. 

“Instead, the State of Gujarat has acted in tandem and was complicit with what the petitioner-respondent No.3 herein had sought before this Court. This is exactly what this Court had apprehended at the previous stages of this case and had intervened on three earlier occasions in the interest of truth and justice by transferring the investigation of the case to the CBI and the trial to the Special Court at Mumbai”, a Bench of Justices BV Nagarathna and Ujjal Bhuyal. 

In the 251 page-judgement, the Court expressed that it would be relevant to refer to one aspect of abuse of discretion—usurpation of power. Usurpation of power arises when a particular discretion vested in a particular authority is exercised by some other authority in whom such power does not lie. In such a case, the question whether the authority which exercised discretion was competent to do so arises, the Court explained. 

“Applying the said principle to the instant case, we note that having regard to the definition of “appropriate Government” and the answer given by us to Point No.3, the exercise of discretion and the passing of the impugned orders of remission in the case of respondent Nos.3 to 13 herein was an instance of usurpation of power”, the High Court observed. 

Gujarat or Maharashtra – Which is the appropriate government? 

On May 13, 2022, the Supreme Court had directed the State of Gujarat to consider the case of Respondent 3 [convict] under the 1992 Policy of the State of Gujarat, by setting aside the order of the High Court of Gujarat dated July 17, 2019. Interestingly, in the said writ petition, the State of Gujarat had correctly submitted that the appropriate Government was the State of Maharashtra and not the State of Gujarat. The said contention was in accordance with the definition of appropriate Government under clause (b) of Section 432 of the CrPC. 

However, this was rejected by the Court though contrary to Constitution Bench decisions. 
But the State of Gujarat failed to file a review petition seeking correction of the order of this Court dated 13.05.2022, (particularly when we have now held that the said order is a nullity), the Bench noted. 

“Complying with the said order can also be said to be an instance of usurpation of power when the provision, namely, clause (b) of sub-section (7) of Section 432 states otherwise”, the Bench observed. 

The State government should have filed a review petition against this order, the Bench opined. 

“We fail to understand as to, why, the State of Gujarat, first respondent herein, did not file a review petition seeking correction of the order dated 13.05.2022 passed by this Court in Writ Petition No.135 of 2022 in the case of respondent No.3 herein. Had the State of Gujarat filed an application seeking review of the said order and impressed upon this Court that it was not the “appropriate Government” but the State of Maharashtra was the “appropriate Government”, ensuing litigation would not have arisen at all”. 

On these aspects, the Bench opined that it was the State of Maharashtra which was the appropriate Government which had to consider the appellant for remission of respondent Nos.3 to 13. 

Taking advantage of this Court’s May, 2022 order, all other convicts also sought consideration of their case by the Government of Gujarat for remission even in the absence of any such direction in their cases by this Court. 

“Thus, the State of Gujarat has acted on the basis of the direction issued by this Court but contrary to the letter and spirit of law. We have already said that the State of Gujarat never sought for the review of the order of this Court dated 13.05.2022 by bringing to the notice of this Court that it was contrary to Section 432 (7) and judgments of this Court.”

Speaking on the conduct of Respondent 3, the Court observed that he had “surreptitiously filed the writ petition” before the Top Court seeking to consider his case for remission without disclosing the full and material facts before this Court. 

“Relief was granted by this Court by conferring jurisdiction on State of Gujarat which it did not possess as per Section 432 (7) of the CrPC, in the guise of consideration for remission on the basis of the 09.07.1992 policy, which had also stood cancelled in the year 2013. Taking advantage of this Court’s order dated 13.05.2022, all other convicts also sought consideration of their case by the Government of Gujarat for remission even in the absence of any such direction in their cases by this Court. Thus, the State of Gujarat has acted on the basis of the direction issued by this Court but contrary to the letter and spirit of law. 

We have already said that the State of Gujarat never sought for the review of the order of this Court dated 13.05.2022 by bringing to the notice of this Court that it was contrary to Section 432 (7) and judgments of this Court”. 

The Bench further observed that the May, 2022 order was per incuriam and not a binding precedent, as it didn’t follow nine-judge bench decision of the Court in Naresh Shridhar Mirajkar vs. State of Maharashtra.