BILKIS YAKUB RASOOL   (PETITIONER) Vs.  UNION OF INDIA & OTHERS     (RESPONDENTS)

WRIT PETITION (CRL.) NO.491 OF 2022

(2JB, B.V. NAGARATHNA and UJJAL BHUYAN JJ., delivered by B.V. NAGARATHNA J.)

Facts: The present writ petitions have been filed assailing the Orders dated 10.08.2022, granting remission and early release of respondent Nos.3 to 13 in Writ Petition (Crl.) No.491 of 2022 (which petition shall be considered to be the lead petition), who were all convicted, having been found guilty of committing heinous crimes during the large-scale riots in Gujarat on 28.02.2002 and a few days thereafter which occurred in the aftermath of the burning of the train incident in Godhra in the State of Gujarat on 27.02.2002.

Issue(s):

1. Whether the petition filed by one of the victims under Article 32 of the Constitution is maintainable?
2. Whether the writ petitions filed as Public Interest Litigation (PIL) assailing the impugned orders of remission dated 10.08.2022 are maintainable?
3. Whether the Government of State of Gujarat was competent to pass the impugned orders of remission?
4. Whether the impugned orders of remission passed by the respondent – State of Gujarat in favour of respondent Nos.3 to 13 are in accordance with law?

Arguments on behalf of counsel for petitioner: Ms. Shobha Gupta

Learned counsel for the petitioner submitted that the en-masse remission granted to respondent Nos.3 to 13 by Orders dated 10.08.2022 has not only shattered the victim-petitioner and her family but has also shocked the collective conscience of the Indian society. That in the present case, the right of the victim and the cry of the society at large have been ignored by the State and Central Governments while recommending the grant of remission to all convicts in the case. It was asserted that though the crime was committed in the State of Gujarat, the investigation and trial were carried out in the State of Maharashtra pursuant to the orders of this Court. Hence, in view of the unambiguous language of Section 432(7)(b), only the State of Maharashtra would be the appropriate government which could have considered the applications filed by respondent Nos.3 to 13 seeking remission of their sentences. According to learned counsel, once a competent Court in the State of Maharashtra had tried and convicted the accused then that State is the ‘appropriate Government’. Therefore, the Orders of remission passed by the State of Gujarat in respect of respondent Writ Petition (Crl.) No.491 of 2022 is without jurisdiction and a nullity and thus, are liable to be quashed.

Arguments on behalf of counsel for respondents: Sri. S.V. Raju

Learned Additional Solicitor General of India, appearing on behalf of the State of Gujarat and Union of India, at the outset submitted that the writ petitions filed by persons other than the victim are not maintainable. That the said persons are strangers and have no locus-standi to challenge the remission orders passed by the State of Gujarat. The said petitioners are in no way connected with the proceedings which convicted the respondents herein nor the proceedings which culminated in the grant of remission to the convicts. Referring to Writ Petition (Crl.) No.319 of 2022, it was contended that nowhere has the petitioner therein, namely, Subhasini Ali pleaded as to how her fundamental rights had been abridged and as to how she was aggrieved by the action of the State Government. That the petitioner therein was nothing but an interloper and a busybody and not a ‘person aggrieved’ as per the dicta of this Court in M. V. Dabholkar and Jasbhai Motibhai. Thus, the PIL filed by such a person is nothing but an abuse of the PIL jurisdiction of this Court and against the principles laid down in Tehseen and Ashok Kumar. Therefore, learned ASG sought for dismissal of all the PILs challenging the impugned orders of remission on the ground of maintainability.

Held: The court allowed the present petition and held with respect to the above issues that:

1. The petition filed under Article 32 of the Constitution before this Court is maintainable and that it was not mandatory for the petitioner therein to have filed a writ petition under Article 226 of the Constitution before the Gujarat High Court.
2. Since Writ Petition (Crl.) No.491 of 2022 has been filed by one of the victims invoking Article 32 of the Constitution before this Court which has been entertained by us, the question, whether, the writ petitions filed as public interest litigation assailing the impugned orders of remission dated 10.08.2022 are maintainable, is kept open to be raised in any other appropriate case.
3. In view of Section 432 (7) read with Section 432 (1) and (2) of the CrPC, we hold that the Government of the State of Gujarat had no jurisdiction to entertain the prayers seeking remission of respondent Nos.3 to 13 herein as it was not the appropriate Government within the meaning of the aforesaid provisions. Hence, the orders of remission dated 10.08.2022 made in favour of respondent Nos.3 to 13 herein are illegal, vitiated and therefore, quashed.
4. While holding as above, we also hold that 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 (suppressio veri, suggestio falsi) and therefore, fraudulently obtained at the hands of this Court.

The court ordered that, “We wish to emphasize that in the instant case rule of law must prevail. If ultimately rule of law is to prevail and the impugned orders of remission are set-aside by us, then the natural consequences must follow. Therefore, respondent Nos.3 to 13 are directed to report to the concerned jail authorities within two weeks from today.”