This Report is covered by Krishna Parihar, a first year law student from Tamil Nadu National Law University, Tiruchirappalli.
The individuals convicted in this case were granted clemency through the challenged order issued by the “state of Gujarat” resulting in the filing of numerous writ petitions.
On the outset of 2002 Gujarat riots, an FIR was lodged against the convicts, but the initial closure of the case led to a legal challenge by Bilkis Yakub Rasool. The investigation was then transferred to the Central Bureau of Investigation (CBI). The petitioner-victim then petitioned the court for the relocation of the trial to a neutral venue, which further became the bone of contention about the determination of “appropriate government.”
Shoba Gupta, the petitioner counsel contended that the state of Maharashtra is to be considered as the “appropriate government” because accused were tried and convicted under the same and therefore, the order passed by Gujarat government is liable to be quashed as it lacks jurisdiction and the order failed to follow the procedure as it did not take into account the opinion of preceding judge of the convicting court.
The respondent counsel rebuts the petitioner’s claim and contended that while the Gujarat government in accordance with section 433 of CrPC rejected state of Maharashtra for being the appropriate government holding that crime in this case was committed in the state of Gujarat and after the conclusion of trial and on conviction, the case stood transferred to the State where the crime was committed therefore the State of Gujarat retained its status as the appropriate government for the purposes outlined in Section 432(7) of the CrPC. Additionally they contended that the appropriate government ‘may require’ the Presiding Judge’s opinion, hence obtaining such an opinion is discretionary and not mandatory.
The matter of concern also extended to the policy governing premature release for the convicts as while granting remission the state adhered to the 1992 policy wherein an individual can be released if he had attained 14 years of imprisonment as it was applicable on the date of conviction. It was contended by the counsel of petitioner that the remission policy dated 09.07.1992 of the State of Gujarat policy had been annulled through a Circular dated 08.05.2014 and was not even in existence as on the date for consideration of the remission applications.
Learned counsel, Ms. Shoba Gupta has also contended that the convicts have not paid the fine, therefore the respondents should undergo the default sentence as well. In response to this the counsel of respondent stated that the grant of remission could not be restricted on the grounds of incapability of a person to bear the fine.
The court’s final verdict highlights that the remission order lacked careful consideration, raising concerns about jurisdiction. The convicts’ behaviour in jail, unpaid fines, and the inapplicability of the 1992 Gujarat policy were overlooked. The court deems the opinion of the Presiding Judge ineffective, asserting that the Gujarat government disregarded it. The opinion of the Sessions Judge at Dahod is considered jurisdictionally flawed, breaching Section 432(2) of the CrPC. Furthermore the convicts’ unpaid fines when considering remission applications were also not looked upon.
In its ruling the SC stated that “article 142 cannot be invoked by us in favor of the convicts to remain out of the jail” and hold the plea of protection of liberty of respondent Nos.3 to 13 and further emphasized that in the present case the rule of law must prevail, and impugned order of remission are set aside. Additionally the court ordered respondent nos.3 to 13 to report to the concerned jail authorities within two weeks and further disposed of the number of petitions and applications filed and only allowed Writ Petition (Crl.) No.491 of 2022, filed by BILKIS YAKUB RASOOL.