A man convicted in Bilkis Bano case suppressed material and presented misleading facts to elicit a favourable order from the country’s apex court that led to premature remission of sentence. Ten others, convicted along with him, did not have to do even that. The state of Gujarat exuberantly gave them the remission. The Supreme Court verdict which quashed the orders issued for the release of the 11 convicts in the Bilkis Bano case, and declared the May 2022 SC judgement that directed the Gujarat government to consider the remission application of a convict as legally invalid, lays bare the manner in which the apex court in the country was scammed by a convict. The court without mincing words said that the order was “obtained by fraud” and all proceedings pursuant to the May 2022 order stand vitiated.
A bench of Justices BV Nagarathna and Ujjal Bhuyan directed the 11 convicts to surrender back to prison within two weeks. All of them were granted remission by the Gujarat government on August 15, 2022, based on a Supreme Court order of May 2022. This order that was passed by an SC bench comprising Justices Ajay Rastogi and Vikram Nath, the court said, was obtained by “suppressing material aspects” and “misleading” the apex court.
Suppression of facts
Radheshyam’s petition
One of the convicts in the case - Radheshyam Bhagwandas Shah alias Lala Vakil – approached the Supreme Court in 2022 and filed a petition under Article 32 of the Constitution (Right to constitutional remedies). He sought the court to direct the Gujarat government to consider his application for his premature release under the remission policy of 1992, contending that it was this policy that existed at the time of his conviction.
In his petition, Radheshyam pointed out two court orders. One was pronounced in the case of his co-accused Ramesh Rupabhai, when he approached the Bombay HC in 2013. The HC court had then clarified that the undertrials in this case were lodged in Maharashtra jail only because the trial was transferred from Gujarat to Maharashtra by the SC. Bombay HC had further said that after the conviction, the appropriate prison would be the state of Gujarat and they were transferred.
The second order was passed in 2019 by the Gujarat HC, when Radeshyam himself went to the court seeking premature release. The HC had held that since the trial was held at Maharashtra, his case for premature release had to be considered by that state and not by Gujarat. Pointing out that these were “diametrically opposite views” taken by the court, he approached the SC.
So the question before the SC in 2022 was which was the appropriate government to grant remission – the state where the crime was committed or where the trial was held. The court ruled that remission or premature release of a convict should be considered in terms of policies that were applicable in the state where the crime was committed and not where the trial was held. The apex court also directed the State of Gujarat to consider Radeshyam’s application for premature release.
The SC bench of Justices Nagarathna and Bhuyan ruled that this 2022 order was per incuriam (bad in law) and contrary to the judgements of this Court.
What Radheshyam did not say
In their judgement, Justices Nagarathna and Bhuyan noted that Radheshyam had suppressed multiple facts and made misleading statements, in order to persuade the 2022 bench to rule in his favour. The counsel of Bilkis informed the court of how Radheshyam approached the court and got the remission order, the contentions which were found to be true by the top court.
According to the judgement, these are the omissions made by him:
> In 2019, Radeshyam had approached the Gujarat HC to consider his plea for remission by the Gujarat government. The court observed that the appropriate government would be that of Maharashtra and dismissed his petition.
> He then approached the Maharashtra government, within two weeks of the dismissal. The Central Bureau of Investigation (CBI) - which conducted the probe, the Mumbai special court - that convicted him, SP and district magistrate of Dahod, Gujarat had all given negative opinions for his remission.
> He once again filed a similar petition at the Gujarat HC in 2020, which was also dismissed.
Apart from this, when he approached the SC in 2022, he made a misleading statement about “divergence of opinion” between the Gujarat and Bombay HC, and that he approached the SC because of this. However, what he failed to disclose was that, the court noted, the Bombay HC’s 2013 order was pertaining to transfer of the convicts from Maharashtra to Gujarat. The Gujarat HC’s 2019 order was regarding his premature release.
"In 2013, the issue of remission had not arisen at all. But the writ petitioner projected as if the two high courts had contradicted themselves in their orders and therefore, he was constrained to file a writ petition invoking the jurisdiction of this court under Article 32 of the Constitution," the petitioners challenging the remission submitted at the court.
The court noted that the 2019 Gujarat HC order was not challenged by Radeshyam in his petition to the Supreme Court. The court observed, “Curiously… the order dated 17.07.2019 has been set aside even in the absence of there being any prayer thereto nor any discussion of the same.”
No other convicts approached the SC
The court also noted that only Radeshyam approached the SC seeking a direction to the Gujarat government to consider his premature release, and none of the other convicts in the case did so. “Therefore, in so far these respondents are concerned, there was no direction of this court or any court to the state of Gujarat to consider their premature release,” the court observed.
The bench ruled that that remission order for the 11 convicts obtained by “fraud played on this court” and hence was “hit by fraud and is a nullity and non est in the eye of law”.
The court also came down heavily on the Gujarat government for “usurpation of powers” and “abuse of discretion”.
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