SC refuses to entertain plea of two convicts in Bilkis Bano's case

The Supreme Court on Friday refused to entertain a petition by two convicts in the Bilkis Bano case for interim bail till a fresh decision is taken on their pleas challenging the apex court's January 8 verdict, which led to the cancellation of their remission (early release from prison) and re-imprisonment.

As a bench of Justices Sanjiv Khanna and PV Sanjay Kumar was not inclined to entertain their plea, counsel appearing for convicts withdrew the petition.

The bench asked counsel of convicts, "What is this plea? How is it even maintainable? Absolutely misconceived. How can, in Article 32, we sit over appeal?"

On January 8, the Supreme Court had struck down the Gujarat government's order granting remission to 11 convicts who had gangraped Bilkis Bano and murdered her family members during the 2002 Godhra riots.

In March, two accused -- Radheshyam Bhagwandas Shah and Rajubhai Babulal Soni--moved to the top court, urging the matter of their pre-mature release from jail be referred to a larger bench, as two different benches passed different orders.

They had said that the apex court's January 8 verdict, which led to cancellation of remission and re-imprisonment, was judicially improper.

In their plea, they have mentioned that two different co-ordinate benches of an equal number of judges have taken a different view of the case.

"Issue direction, clarifying and directing which judgement of its co-ordinate bench would be applicable in the facts and circumstances of the case, i.e., one that has been delivered in the case," it had said.

As per the plea, the January 8 judgment delivered by Justices BV Nagarathna and Ujjal Bhuyan was "not only judicial impropriety but creates uncertainty and chaos as to which precedence of law has to be applied in future."

It was incorrect in law for the two-judge bench led by Justice Nagarathna to overrule a judgement rendered by another two-judge bench of the Supreme Court, namely Justices Ajay Rastogi and Vikram Nath, said the plea.

It is to be noted that the May 13, 2022, judgement rendered by the Justice Rastogi-led bench had held that the State of Gujarat (and not the Maharashtra government) was the appropriate government to decide on remission applications filed by the rape convicts in the Bilkis Bano case.

Thereafter, the Gujarat government decided to allow the remission applications of convicts. The decision was challenged by Bilkis Bano and others in the top court.

The bench led by Justice Nagarathna had found that the May 2022 judgment was secured by Radheshyam after misleading the court and suppressing key facts.

It had held that the judgment of May 13, 2022, by which another bench of the apex court had directed the Gujarat government to consider remission of a convict as per the 1992 policy, was obtained by "playing fraud" on the court and by suppressing material facts.

Justice Nagarathna led-bench in January this year had held that Gujarat government was not competent to pass the remission orders but Maharashtra government. It had said the appropriate government to decide the remission was the State (in this case, Maharashtra) within whose territorial limits the accused are sentenced and not where the crime is committed or the accused are imprisoned.

"In view of conflicting judgment on the same issue by bench of equal numbers of judges, the matter must be referred to a larger bench for final adjudication and proper determination on law and merits of the case," the plea had stated.