'We Understand You Don't Want This Bench To Hear' : Supreme Court To Convicts In Bilkis Bano Case While Adjourning Hearing Till July

The final hearing in Bilkis Bano's case could not take place in the Supreme Court as scheduled, after lawyers appearing for some of the convicts raised disputes against Bano's affidavit regarding service of notice. Bano has approached the Supreme Court challenging the decision of the Gujarat Government to allow the premature release of convicts who were sentenced to life for gang rapes and murders during the 2002 Gujarat riots.

Although a bench comprising Justices KM Joseph and BV Nagarathna had posted the matter for final hearing today at 2 PM, no effective hearing happened. Advocates appearing for some convicts took objection to an affidavit filed on behalf of Bano seeking to declare deemed service on the ground that some respondents had refused notice. They argued that Bano had made a false claim in the affidavit regarding the respondents refusing to accept service, as the postal records showed that service could not be completed as the parties were out of station. 

Claiming that Bano "played fraud on the court", the convicts' counsel sought criminal action against her. Bano's lawyer Advocate Shobha Gupta denied these allegations and stated that the affidavit was filed on the basis of postal endorsements.

Faced with these objections, the bench had to adjourn the hearing, in order to give time to the convicts' advocates to file a counter-affidavit to bring on record their objections. The bench was faced with another difficulty, as the service was not complete with respect to all respondents. Therefore, the bench directed the completion of service on the unserved respondents and allowed it to be served through the concerned police station. Since Justice Joseph is set to retire on June 16 (May 19 is his last working day before the vacation), he offered to sit during the vacation to hear the matter. Though the petitioners were agreeable to the suggestion, Solicitor General Tushar Mehta and the respondents' lawyers were not willing.

Ultimately, the bench decided to adjourn the hearing till July and to list the case after two weeks to ascertain the completion of service. 

During the proceedings, Justice Joseph expressed his anguish at the hearing getting delayed on procedural grounds. Addressing the respondents' lawyers, Justice Joseph said :

"It is clear what is being attempted here. I will retire on June 16. Since that is during the vacation, my last working day is Friday, May 19. It is obvious you do not want this bench to hear the matter. But, this is not fair to me. We had made it absolutely clear that the matter will be heard for disposal. You are officers of the court. Do not forget that role. You may win a case, or lose one. But, do not forget your duty to this court."

Bilkis Bano tried to play 'fraud' with court by making false statements in affidavit: Counsel for convicts

Right at the outset, it was alleged that even though two of the respondents were out of the station, an affidavit had been filed by Bano indicating that they had refused to accept the notice. "Bilkis Bano has played fraud with this court," the counsel furiously exclaimed. They strongly objected to letting the counsel for the petitioners begin their submissions, saying that they had not been given adequate time to file their responses.

"You are present today in court. Will you take notice or not?" asked Justice Nagarathna, noting that the counsel was appearing for the same convict in the connected PILs.

"I will take notice, but I will require time to file my response. The court should also take into account the fact that she has tried to mislead the court. I can show that this is not the first time that the petitioner is doing this," the counsel responded. He also insisted that action under the Code of Criminal Procedure should be taken against Bano, the victim of the horrific crime.

However, Advocate Shobha Gupta, appearing on behalf of Bano, vehemently objected to this allegation. She stated that notice was served via e-mail as well to the advocates who were appearing for the convicts in the connected PILs.

"Was permission taken to serve them notice via email?" asked Justice Nagarathna. Gupta explained that the court had granted permission for the same, but had clarified that the respondents would have the discretion to accept notice served electronically. "Only two of the lawyers responded saying that they did not have instructions from their clients. But, everyone has filed responses in the connected matters."

"When did you file the vakalatnama?" Justice Joseph asked the arguing counsel. He responded that the vakalatnama with respect to Bilkis Bano's plea had not been filed.

"How did you know that this case was filed today, then?" Justice Joseph countered.

"Because the connected matters are listed today," the counsel replied.

Justice Joseph asked, "You are in court today with the awareness that the connected matters are listed today. However, you deny receiving notice of this particular petition. Correct?" the judge asked. The counsel responded, "Yes."

"Alright. We will hear you. You will get time to file a response," Justice Joseph said.

One counsel raised an objection that the envelope did not have the seal of the Supreme Court and hence the party cannot be faulted for not accepting the notice. However, Justice Nagarathna, after examining the postal records, found this claim to be not true. Pulling up the counsel for making a wrong statement, the judge said, "Before you make a statement, you should be responsible enough to verify them against the records, instead of wasting our time. The process has been initiated. They have all been dispatched. These are Supreme Court records, and yet, you have the gumption to say no process has been initiated and nothing has been done."

The bench also clarified that the matter would be taken up after two weeks only to ascertain service of notice, and it would continue hearing it only after the vacations.

Convicts attempting to wait out the period I have left in my tenure: Supreme Court Judge KM Joseph

Justice Joseph remarked in open court that he understood that this was a bald attempt to wait out the time he had left before retirement. "We understand that they do not want this bench to hear the matter," the top court judge said. The counsel for the petitioners, including Gupta, advocate Vrinda Grover, and senior advocate Indira Jaising also strongly objected to what they described as a blatant machination to interrupt justice.

Jaising suggested that the batch of petitions could be heard during the summer vacation, which will commence on Monday, May 22. "Your Lordship's term is till July. Hearings can be held during the vacations," she said.

"We are prepared to sit during the vacations," said Justice Joseph. However, this recommendation did not find favour with Solicitor-General Tushar Mehta(appearing for Union and State of Gujarat) and senior advocate Rishi Malhotra, who was appearing on behalf of one of the convicts. The solicitor-general quickly clarified, "It is not that we will be unavailable only with respect to this case, but all cases. Once I make an exception for one, I'll soon be making exceptions for all."

"We cannot compel them," Justice Joseph conceded.

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