Code of Criminal Procedure, 1973 – ss. 432, 433, 433A and 435 – Grant of remission – Bilkis Bano matter – Order of State of Gujarat granting remission and early release of 11 convicts held guilty of committing heinous crimes of gangrape, murder and rioting armed with deadly weapons during the large-scale riots in Gujarat in the aftermath of the Godhra train burning incident – Challenge to:

Held: Government of State of Gujarat was not competent to pass the orders of remission in favour of the convicts as it was not the appropriate Government – State of Maharashtra, had the jurisdiction to consider the application for remission as the convicts were sentenced by the Special Court, Mumbai – Government of the State of Gujarat usurped the powers of the State of Maharashtra which only could have considered the applications seeking remission – Also the Remission Policy of 1992 of the State of Gujarat was not applicable to the convicts – Thus, the Orders of remission dated 10.08.2022 not being in accordance with law is illegal, vitiated and thus, quashed – Also the judgment dated 13.05.2022 passed by this Court directing the State of Gujarat to consider the application for premature release is a nullity and is non est in law since the said order was fraudulently obtained at the hands of this Court, and the said order being contrary to the larger bench decisions of this Court, is per incuriam – Thus, the rule of law is to prevail – 11 convicts to report to the concerned jail authorities within the stipulated period. [Paras 56, 70]

Constitution of India – Art. 32 – Bilkis Bano matter – Writ petition filed u/Art. 32 by one of the victims challenging the order of State of Gujarat granting remission and early release of 11 convicts held guilty of committing heinous crimes of gangrape, murder and rioting armed with deadly weapons during the large-scale riots in Gujarat in the aftermath of the Godhra train burning incident – Maintainability:

Held: Writ Petition filed u/Art. 32 is clearly maintainable – It was not mandatory for the petitioner to have filed a writ petition u/ Art. 226 before the Gujarat High Court – Petitioner-Bilkis Bano filed writ petition u/Art. 32 to enforce her fundamental rights u/ Art. 21 and Art. 14 – Access to justice includes speedy remedy, the petition could not be dismissed on the ground of availability of an alternative remedy u/Art. 226 – Furthermore, in view of the submission regarding the State of Gujarat not being the competent State to consider the validity of the orders of remission in a petition filed u/Art. 226, particularly, when the question of competency was raised, could not have been dealt with by the Gujarat High Court on the principle of judicial propriety. [Paras 22.2-22.3, 56]

Constitution of India – Art. 32 – Public interest litigation – Bilkis Bano matter – Writ petition filed as public interest litigation challenging the order of State of Gujarat granting remission in favour of convicts guilty of committing heinous crimes of gangrape, murder and rioting armed with deadly weapons during the large-scale riots in Gujarat in the aftermath of the Godhra train burning incident – Maintainability:

Held: Writ petitions filed as public interest litigation assailing the impugned orders of remission dated 10.08.2022 are maintainable or not, is kept open to be raised in any other appropriate case – It is not necessary to answer the point regarding maintainability of the PILs inasmuch as one of the victims, also filed a writ petition invoking Art. 32 assailing the orders of remission which has been held to be maintainable – Consideration of that petition on its merits would suffice in the instant case. [Paras 27, 56]

Code of Criminal Procedure, 1973 – ss. 432, 433, 433A and 435 – Bilkis Bano matter – Grant of remission – Investigation transferred to CBI by this Court – Thereafter, trial of the case pending before the Sessions Judge, Dahod, Ahmedabad transferred to the competent court in Mumbai – 11 accused convicted for offence of gangrape and murder by Mumbai court which was upheld by the High Court and this Court – One of the victims, respondent no. 3 challenged the non-consideration of his application for premature release u/ss.433 and 433A before the Gujarat High Court – High Court held that since the trial had taken place in the State of Maharashtra, the ‘appropriate government’ would be the State of Maharashtra and not the Government of Gujarat to grant remission – Application for remission moved before the Government of Maharashtra, who sought opinion of CBI and Special CBI court which opined against premature release in view of the remission policy, as also against other convicts remission applications – Thereafter, respondent no. 3 filed writ petition before this Court seeking direction to the State of Gujarat to consider his application for premature release under its policy of 1992 – Issuance of direction by this Court by order dated 13.05.2022, to the State of Gujarat to consider the application for premature release in terms of the policy of 1992, being the appropriate government – Subsequently, the State of Gujarat issued orders dated 10.08.22 granting remission and early release of 11 convicts – Government of State of Gujarat, if competent to pass the impugned orders of remission:

Held: When an authority does not have the jurisdiction to deal with a matter or it is not within the powers of the authority i.e. the State of Gujarat in the instant case, to be the appropriate Government to pass orders of remission u/s. 432 , the orders of remission would have no legs to stand – In view of s. 432 (7) read with s. 432 (1) and (2), the Government of State of Gujarat had no jurisdiction to entertain the applications for remission or pass the orders of remission on 10.08.2022 in favour of 11 convicts as it was not the appropriate Government within the meaning of the said provisions – It is the State of Maharashtra, which had the jurisdiction to consider the application for remission vis-à-vis 11 convicts as they were sentenced by the Special Court, Mumbai – Orders of remission dated 10.08.2022 made in favour of 11 convicts are illegal, vitiated and thus, quashed – Also the judgment dated 13.05.2022 passed by this Court is a nullity and is non est in law since the said order was sought by suppression of material facts as well as by misrepresentation of facts and thus, fraudulently obtained at the hands of this Court – Furthermore, the order dated 13.05.2022, being contrary to the larger bench decisions of this Court, (holding that it is the Government of the State within which the offender is sentenced which is the appropriate Government which can consider an application seeking remission of a sentence) is per incuriam and is not a binding precedent – Thus, the impugned orders of remission dated 10.08.2022 are quashed. [Paras 33.8, 33.9, 46, 56]

Code of Criminal Procedure, 1973 – ss. 432, 433, 433A and 435 – Bilkis Bano matter – Investigation transferred to CBI by this Court – Thereafter, trial of the case pending before the Sessions Judge, Dahod, Ahmedabad transferred to the competent court in Mumbai – 11 accused convicted for offence of gangrape and murder by Mumbai court which was upheld by the High Court and this Court – One of the victims, respondent no. 3 challenged the non-consideration of his application for premature release u/ss.433 and 433A before the Gujarat High Court – High Court held that since the trial had taken place in the State of Maharashtra, the ‘appropriate government’ would be the State of Maharashtra and not the Government of Gujarat to grant remission – Application for remission moved before the Government of Maharashtra, who sought opinion of CBI and Special CBI court which opined against premature release in view of the remission policy as also against other convicts remission applications – Thereafter, respondent no. 3 filed writ petition before this Court seeking direction to the State of Gujarat to consider his application for premature release under its policy of 1992 – Issuance of direction by this Court by order dated 13.05.2022, to the State of Gujarat to consider the application for premature release in terms of the policy of 1992, being the appropriate government – Subsequently, the State of Gujarat issued orders dated 10.08.22 granting remission and early release of 11 convicts – Order of remission dated 10.08.2022 passed by the State of Gujarat in favour of convicts, if in accordance with law:

Held: Order of remission dated 10.08.2022 passed by the State of Gujarat in favour of 11 convicts is not in accordance with law – Government of the State of Gujarat had usurped the powers of the State of Maharashtra which only could have considered the applications seeking remission – Hence, the doctrine of usurpation of powers applies – 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 s.432(7) and judgments of this Court – Policy of 1992 of the State of Gujarat was not applicable to the case of 11 convicts – Opinion of the Presiding Judge of the Court before which the conviction of 11 convicts was madeSpecial Court, Mumbai (Maharashtra) was rendered ineffective by the Government of the State of Gujarat which in any case had no jurisdiction to entertain the plea for remission of convicts – Opinion of the Sessions Judge at Dahod was wholly without jurisdiction as the same was in breach of s.432(2) – Furthermore, while considering the applications seeking remission, the Jail Advisory Committee, Dahod and the other authorities lost sight of the fact that 11 convicts had not yet paid the fine ordered by the Special Court, Mumbai which had been upheld by the Bombay High Court. [Paras 50.4, 56]

Code of Criminal Procedure, 1973 – s. 432(2) – Power to suspend or remit sentence – Application made to the appropriate Government for remission of a sentence – Requirement of the opinion of the Presiding Judge of the convicting court:

Held: s. 432(2) states that when an application is made to the appropriate Government, inter alia, for remission of a sentence, the appropriate Government may require the Presiding Judge of the Court before or by which the conviction was had or confirmed, to state his opinion – The opinion must state as to, whether, the application should be granted or refused, together with his reasons for such opinion which must have bearing on the facts and circumstances of the case and be in tandem with the record of the trial or of such record thereof as exists; and also must forward with the statement of such opinion a certified copy of the record of the trial or of such record thereof as exists – Having regard to the requirements which the Presiding Judge must comply with while stating his opinion to the appropriate Government on an application for remission of sentence made by a convict, the expression “may” has to be interpreted as “shall” and as a mandatory requirement u/s.432 – Furthermore, it cannot be left to the whims and fancies of the appropriate Government either to seek or not to seek the opinion of the Presiding Judge or the Court before which the conviction had taken place. [Paras 51, 52.2, 52.3]

Sentence/sentencing – Imprisonment undergone in default of payment of fine – Nature of:

Held: Sentence of imprisonment awarded to a person for committing an offence is distinct than the imprisonment ordered to be undergone in default of payment of fine – Latter is not a substantive sentence for commission of the offence but is in the nature of penalty for default in payment of fine – On facts, while considering the applications for remission, the Jail Advisory Committee did not take into consideration whether the convicts had tendered the fine imposed by the Special Court and affirmed by the High Court as well as by this Court – Had the State of Gujarat considered the opinion from the Presiding Judge of the Court which had convicted, the accused, the aspect regarding non-payment of fine would have surfaced – In the absence of non-compliance with the direction to pay fine, there would be default sentence which would be in the nature of penalty – Question whether the default sentence or penalty had to be undergone by these respondents, was a crucial consideration at the time of recommending remission to the State Government by the Jail Advisory Committee – This aspect of the matter has also not been taken into consideration by the State Government while passing the impugned orders of remission. [Paras 54.3-54.4]

Constitution of India – Art. 32 – Bilkis Bano matter – Remission order by the State of Gujarat granting remission and early release of 11 convicts held guilty of committing heinous crimes of gangrape, murder and rioting armed with deadly weapons during the large-scale riots in Gujarat in the aftermath of the Godhra train burning incident – 11 convicts granted liberty and released from imprisonment by virtue of the orders – Said order has been declared and quashed as wholly without jurisdiction and non est – Effect of, on the beneficiaries of the remission order:

Held: Rule of law means wherever and whenever the State fails to perform its duties, the Court would step in to ensure that the rule of law prevails over the abuse of the process of law – Such abuse may result from, inter alia, inaction or even arbitrary action of protecting the true offenders or failure by different authorities in discharging statutory or other obligations in consonance with the procedural and penal statutes – Breach of the rule of law, amounts to negation of equality u/Art. 14 – On facts, convicts have been the beneficiaries of the orders passed by an incompetent authority inasmuch as the impugned orders are not passed by the appropriate Government within the meaning of s. 432 – Art. 142 cannot be invoked in favour of the convicts to allow them to remain out of jail as that would be an instance of this Court’s imprimatur to ignore rule of law and instead aid persons who are beneficiaries of orders which are null and void and therefore non est in the eye of law – Furthermore, respondent No.3 abused the process of law and the court in obtaining remission – Thus, in complying with the principles of rule of law which encompasses the principle of equal protection of law as enshrined in Art. 14, ‘deprivation of liberty’ vis-à-vis 11 convicts is justified in as much as the said respondents have erroneously and contrary to law been set at liberty – They were released pursuant to the impugned remission orders which have been quashed – Impugned orders of remission having been set aside, the natural consequences must follow – Thus, 11 convicts directed to report to the concerned jail authorities within the stipulated period. [Paras 62, 70]

Code of Criminal Procedure, 1973 – ss. 432 and 433 – Expression ‘appropriate government’ – Meaning of – ‘Appropriate government’ when can assume power to grant remission:

Held: Expression “appropriate Government” used in s. 432 as well as in s. 433, is defined in sub-section (7) of s.432 – It clearly indicates that the Government of the State within which the offender is sentenced, is the appropriate Government to pass an order of remission – Expression “appropriate Government” also finds place in sub section (1) of s. 432 which states that when any person has been sentenced to punishment for an offence, the appropriate Government may, at any time, without conditions or upon any condition which the person sentenced accepts, suspend the execution of his sentence or remit the whole or any part of the punishment to which he has been sentenced – Sub-section (1) of s. 432 deals with a power vested with the appropriate Government which is an enabling power – Discretion vested with the appropriate Government has to be exercised judiciously in an appropriate case and not to abuse the same – However, when an application is made to the appropriate Government for the suspension or remission of a sentence, the appropriate Government may seek the opinion of the Presiding Judge of the Court before or by which the conviction was had or confirmed and on considering the reasons for such opinion, may consider the application for remission – In almost all cases, the court before which the offender was sentenced is located within the territory of a State Government wherein the offence occurred and, therefore, in such a case, there can be no further doubt about the meaning of the expression appropriate Government – Even in a case where the trial has been transferred by this Court from a court of competent jurisdiction of a State to a court in another State, it is still the Government of the State within which the offender was sentenced which is the appropriate Government which has the jurisdiction as well as competency to pass an order of remission u/s. 432 – Thus, it is not the Government of the State within whose territory the offence occurred or the convict is imprisoned which can assume the power of remission. [Paras 32.2, 33.2, 33.3, 33.5, 33.6]

Code of Criminal Procedure, 1973 – ss. 432, 433, 433A and 435 – Power to grant remission on an application filed by the convict or on his behalf – Exercise of:

Held: Is an exercise of discretion by the appropriate Government – Where there is exercise of legal power coupled with discretion by administrative authorities, the test is, whether, the authority concerned was acting within the scope of its powers – This would not only mean that the concerned authority and the appropriate Government had not only the jurisdiction and authority vested to exercise its powers but it exercised its powers in accordance with law i.e., not in an arbitrary or perverse manner without regard to the actual facts or unreasonably or which would lead to a conclusion in the mind of the Court that there has been an improper exercise of discretion – If there is improper exercise of discretion, it is an instance of an abuse of discretion – There can be abuse of discretion when the administrative order or exercise of discretion smacks of mala fides or when it is for any purpose based on irrelevant consideration by ignoring relevant consideration or it is due to a colourable exercise of power; it is unreasonable and there is absence of proportionality – There could also be an abuse of discretion where there is failure to apply discretion owing to mechanical exercise of power, non application of mind, acting under dictation or by seeking assistance or advice or there is any usurpation of power. [Para 49]

Code of Criminal Procedure, 1973 – ss. 432, 433A – Application for remission under – Factors to be taken into account:

Held: Application for remission u/s. 432 could be only before the Government of the State within whose territorial jurisdiction the applicant was convicted (appropriate Government) and not before any other Government within whose territorial jurisdiction the applicant may have been transferred on conviction or where the offence has occurred – Consideration for remission must be by way of an application u/s. 432 which has to be made by the convict or on his behalf – Whether there is compliance of s. 433A must be noted – Guidelines u/s. 432(2) with regard to the opinion to be sought from the Presiding Judge of the Court which had convicted the applicant must be complied with mandatorily – Policy of remission applicable would be the Policy of the State which is the appropriate Government and which has the jurisdiction to consider that application – Policy of remission applicable at the time of the conviction could apply and only if for any reason, the said policy cannot be made applicable a more benevolent policy, if in vogue, could apply – While considering an application for remission, there cannot be any abuse of discretion – Jail Advisory Committee which has to consider the application for remission may not have the District Judge as a Member inasmuch as the District Judge, being a Judicial Officer may coincidently be the very judge who may have to render an opinion independently in terms of s. 432(2) – Reasons for grant or refusal of remission should be clearly delineated in the order by passing a speaking order – Also, it is to be considered whether the order has been passed without application of mind; that the order is mala fide; that the order has been passed on extraneous or wholly irrelevant considerations; that relevant materials have been kept out of consideration; and that the order suffers from arbitrariness. [Para 55]

Code of Criminal Procedure, 1973 – ss. 432, 433, 433A and 435 – Remission – Grant of – Abuse of discretion by administrative authorities – Usurpation of power arises when:

Held: 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. [Para 50]

Code of Criminal Procedure, 1973 – ss. 432, 433, 433A and 435 – Remission – Scope and ambit of – Principles covering grant of remission – Distinction from the concepts of commutation, pardon and reprieve – Stated and discussed – Constitution of India – Arts 72 and 161. [Paras 30-32.5]

Rule of law – Meaning and concept of:

Held: Rule of law means, no one, howsoever high or low, is above the law; it is the basic rule of governance and democratic polity – It is only through the courts that rule of law unfolds its contours and establishes its concept – Concept of rule of law is closely intertwined with adjudication by courts of law and also with the consequences of decisions taken by courts – Therefore, the judiciary has to carry out its obligations effectively and true to the spirit with which it is sacredly entrusted the task and always in favour of rule of law – There can be no rule of law if there is no equality before the law; and rule of law and equality before the law would be empty words if their violation is not a matter of judicial scrutiny or judicial review and relief and all these features would lose their significance if the courts don’t step in to enforce the rule of law – Thus, the judiciary is the guardian of the rule of law and the central pillar of a democratic State – Judiciary has to perform its duties and function effectively and remain true to the spirit with which they are sacredly entrusted to it – This Court must be a beacon in upholding rule of law failing which it would give rise to an impression that this Court is not serious about rule of law and, therefore, all Courts in the country could apply it selectively and thereby lead to a situation where the judiciary is unmindful of rule of law – This would result in a dangerous state of affairs in our democracy and democratic polity – Therefore, it is the primary duty and the highest responsibility of this Court to correct arbitrary orders at the earliest and maintain the confidence of the litigant public in the purity of the fountain of justice and thereby respect rule of law. [Paras 63, 68]

Precedents – Rule of precedents – Exception to rule of precedents:

Held: Although it is the ratio decidendi which is a precedent and not the final order in the judgment, however, there are certain exceptions to the rule of precedents which are expressed by the doctrines of per incurium and sub silentio – A decision rendered by ignorance of a previous binding decision of its own or of a court of coordinate or higher jurisdiction or in ignorance of the terms of a statute or of a rule having the force of law is per incurium – A decision per incurium is not binding – A decision is passed sub-silentio when the particular point of law in a decision is not perceived by the court or not present to its mind or is not consciously determined by the court and it does not form part of the ratio decidendi it is not binding – On facts, the submission that since this Court in the order dated 13.05.2022 had directed that the State of Gujarat was the appropriate Government, the same was binding on the parties even though it may be contrary to the earlier decisions of this Court, cannot be accepted inasmuch as when a judgment has been delivered per incuriam or passed sub silentio, the same cannot bind either the parties to the judgment or be a binding precedent for the future even between the same parties. [Paras 44.1, 44.2, 45]

Per incuriam – Meaning of:

Held: Incuria legally means carelessness and per incurium may be equated with per ignorantium – If a judgment is rendered in ignorantium of a statute or a binding authority, it becomes a decision per incurium – Thus, a decision rendered by ignorance of a previous binding decision of its own or of a court of coordinate or higher jurisdiction or in ignorance of the terms of a statute or of a rule having the force of law is per incurium – Such a per incurium decision would not have a precedential value – If a decision has been rendered per incurium, it cannot be said that it lays down good law, even if it has not been expressly overruled – Thus, a decision per incurium is not binding. [Para 44.1]

Constitution of India – Art. 21 – Personal liberty – Protection of liberty – When:

Held: Personal liberty is the most important constitutional value which is a fundamental right enshrined in Art. 21 – It is an inalienable right of man and can be deprived of or taken away only in accordance with law – That is the quintessence of Art. 21 – Person is entitled to protection of his liberty only in accordance with law. [Paras 58, 60]

Words and phrases –Fraud – Meaning of – Stated. [Paras 42, 43, 43.1]