Bilkis Bano Case | Gujarat Govt 'Acted In Tandem' With Convict, Breached Rule Of Law, Usurped Power : Supreme Court

Another ground on which the remission orders were found to be illegal was the 'usurpation of power' and 'abuse of discretion' by the Gujarat government, in exercising its discretion and directing the premature release of the 11 convicts. While acknowledging that by its May 2022 order, the top court had directed the State of Gujarat to consider the remission application of one of the convicts, Radheshyam Shah, under its 1992 remission policy, the bench today ruled that the order had been obtained by Radheshyam Shah, one of the convicts, by playing fraud on the court and misrepresenting or suppressing material facts.

This decision was a nullity, inasmuch as it was hit by fraud and the doctrine of per incuriam, the bench said. It also held that since this order was found to be 'non-est' and a 'nullity', compliance with it can be said to be an instance of usurpation of power rightfully belonging to the State of Maharashtra.

Significantly, the court noted the conspicuous absence of any application by the Gujarat government seeking a review of this order -

"What is interesting is that the Gujarat government had submitted before this court that the appropriate government was the State of Maharashtra, in accordance with the definition of 'appropriate government' in Section 432 of the Code of Criminal Procedure. This contention was rejected by this court, contrary to several binding precedents, including one by a constitution bench in V Sriharan. The State of Gujarat, however, failed to file a review petition seeking a correction of this court's order. Had the State of Gujarat filed an application seeking a review of the said order and impressed upon this court that it was not the appropriate government but the State of Maharashtra was, ensuing litigation would not have arisen at all. On the other hand, in the absence of any review petition, the State of Gujarat has usurped State of Maharashtra's power and passed the remission orders."

The State of Gujarat has acted on the basis of this court's direction, but contrary to the letter and spirit of law, Justice Nagarathna reasoned. Pointing to previous orders of the court which had deemed it necessary to transfer the investigation and trial of the case to the Central Bureau of Investigation and the State of Maharashtra respectively, the judge slammed the Gujarat government for not filing a review of its May 2022 order, accusing it of 'acting in tandem' with the convict who had approached this court and being complicit with what he sought. This is exactly what this court had apprehended at the previous stages of this case, which had, in the interest of truth and justice, led to their intervention on three earlier occasions, she said -

"Previous orders clearly indicate why this court had transferred the investigation and the trial. The State of Gujarat never sought a review of this court's May 2022 order by bringing to its notice that it was contrary to Section 432 CrPC and earlier judgments. Instead, the State of Gujarat has acted in tandem and was complicit with what Radheshyam Shah 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 case to the Central Bureau of Investigation and the trial to a special court at Mumbai. In our view, when no intervention was called for in the writ petition filed by one of the convicts, this court was misled to issue directions contrary to law on the basis of suppressions and misstatements made by the convict-petitioner. We have held this order to be a nullity and non-est in the eyes of law.

Consequently, the exercise of discretion by the State of Gujarat is nothing but an instance of usurpation of jurisdiction and an instance of abuse of discretion. If really the State of Gujarat had in mind the provisions of law and the judgments of this court and had adhered to the rule of law, it would have filed a review petition before this court. By failing to do so, not only have the earlier orders by this court in the matter been vindicated, but more importantly, the rule of law has been breached in usurping power not vested in it and aiding the convicts. This is a classic case where the May 2022 order has been used for violating the rule of law while passing orders of remission in favour of the convicts, in the absence of any jurisdiction by the respondent state."

On the issue of whether the remission orders were in accordance with law, the bench concluded, "Therefore, without going into the manner in which the power of remission has been exercised, we strike down the remission on the ground of usurpation by the State of Gujarat of power not vested in it. The orders of remission are hence quashed on this ground also."

Bilkis Yakub Rasool v. Union of India & Ors. | Writ Petition (Criminal) No. 491 of 2022

Citation : 2024 LiveLaw (SC) 22

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