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Gulshan Prakash v. State of Haryana (2010) 1 SCC477

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Gulshan Prakash v. State of Haryana (2010) 1 SCC 477||Case Summary  Introduction  In this appeal, the Court has interpreted Article 15(4) of the Fundamental Right. It has been added by the 1st Amendment Act, of 1951. Facts The State of Haryana instructed Maharshi Dayanand University (MDU), Rohtak to conduct entrance examination for MD/MS/PG courses for the Session 2008-2009. The appellant made a representation to the Health Secretary for providing reservation for SC and ST in the Post Graduate courses, Since there was no response from the Health Secretary the Appellant filed a petition in the High Court.  The High Court dismissed the petition of the appellant therefore the appellant approached the Supreme Court by Special Leave Petition under Article 136. Appellant Contentions  MDU, Rohtak has provided 20% reservation for the graduate level courses or undergraduate courses therefore the said University should also provide reservation in for the PG courses.  The Government o
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Bilkis Yakoob Rasul v. UoI & others, AIR 2022

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Bilkis Bano Case|Bilkis Bano Update|Bilkis Bano Judgement 

This case brief/ summary is written after a detailed analysis of the judgement/ order dated 8.01.2024 of the SC.


Overview 

These appeal arises after a Order of the Government of Gujarat remitted the life sentence of all the convicts after completing 14 years of the sentence. All the convicts were convicted, in the famous case popularly known Bilkis Bano Case, for committing gangrape and murder. This case has dealt the meaning , scope and extent of the power of remission. Constitutional positions of remission under Article 72 and 161 and also remission provided under Section 432 read with Section 433A of Code of Criminal Procedure, 1973 has been interpreted here. 

Introduction 

These writ petitions filed against the Order of Sate of Gujarat which remitted the life sentence of respondents no. 3 to 13 and released them earlier, who were all convicted in committing heinous crime under various sections of Criminal Code during and few days after the communal riots in Gujarat on February 28, 2002. All the convicts were sentenced for the offences of committing gang rape of the plaintiff, Bilkis Yakub Rasul/ Bilkis Bano who was pregnant at that time and gangrape and murder of her mother and her cousin who had just delivered a baby. They also murdered plaintiff's minor daughters and sisters and others. The recent Order of the Government of Gujarat dated Aug 10, 2022 remitting the sentence resulted in filling these writs. 

Facts

After the aforementioned unfortunate and grave incident, FIR was filed against unknown accused which got closed as the accused were not traced. The SC in a writ petition filed by petitioner ,Bilkis Yakub Rasul/ Bilkis Bano, challenging the closure of FIR accepted and order made for reopening of the case also the case was transferred to CBI. CBI after investigation made chargesheet against 20 accused persons including 6 police personnel and 2 doctors. The SC transferred the trial to Mumbai Court by an Order in a Transfer petition filed by petitioner, Bilkis Yakub Rasul/ Bilkis Bano. The Special Judge judgement convicted 11 accused and sentenced them to life imprisonment for the offences of gangrape and murder. In a criminal appeal filed by the convicts before the HC of Bombay, judgement of trial Court was upheld. Also a SLP filed against the order of HC of Bombay dismissed. After undergoing more than 14 years of their sentence, the convicts tried to escape the sentence through remissions by the State Government of Gujarat under Section 432 and 433 of CrPC. In a petition filed by one of the convicts before SC, the Court Order dated 13.05.2022, held for the consideration of premature release of the convicts. Accordingly an Order was passed by the State Government of Gujarat after obtaining positive opinion of various authorities (though earlier rejected by CBI, Trial Court and others) and getting approval from the Ministry of Home Affairs, GoI for the premature release of all the 11 convicts. Therefore these writ petitions have been filed for quashing the Order.

Issues

  1. Whether the writ petitions filed as Public Interest Litigation (PIL) assailing the impugned orders of remission dated 10.08.2022 are maintainable?
  2. Whether the Government of State of Gujarat was competent to pass the impugned orders of remission?
  3. 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?

Decisions

  1. Writ 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. 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 are illegal, vitiated and therefore, quashed.
  4. 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. 
    1.  Also, since the petitioner was not a party in Writ Petition of 2022  the same is not binding on her and she is entitled in law to question the orders of remission dated 10.08.2022 from all angles including the correctness of the order dated 13.05.2022.
    2. Also the said order, 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.
  5. The impugned orders of remission dated 10.08.2022 passed by the respondent-State of Gujarat in favour of respondent Nos.3 to 13 are not in accordance with law for the following reasons: 
    1. That the 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 in the instant case.
    2. That opinion of the Presiding Judge of the Court before which the conviction of respondent Nos.3 to 13 was made in the instant case i.e. Special 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. The opinion of the Sessions Judge at Dahod was wholly without jurisdiction as the same was in breach of sub-section (2) of the Section 432 of the CrPC. 
    3. That while considering the applications seeking remission, the Jail Advisory Committee, Dahod and the other authorities had lost sight of the fact that respondent Nos.3 to 13 herein had not yet paid the fine ordered by the Special Court, Mumbai which had been confirmed by the Bombay High Court. Ignoring this relevant consideration also vitiated exercise of discretion in the instant case.

Remission- Scope and Extent 

Constitutional position 
  • Article 72 & 161 of the Constitution provides power to the President of India and Gov. Of State respectively to grant pardons, reprieve, respite or remission of punishment or to suspend, remit or commute the sentence. 
  • The power under Article 72 and 161 are absolute and can't be fettered by any statutory provisions or by any rule.
  • Remission is a reduction of sentence without changing its character. 
  • Neither the offence nor the sentence get dissolved by an order of remission rather it just prevent the execution of the sentence.
  • It also doesn't affect any order of the court. It just prevent the execution otherwise the court order remain intact.
  • It is an executive power and doesn't have the effect like the order of a court have.
  • It is a legal right of the convicts arising from Prison Act and Rules.
  • Remission vests no right to release when the sentence is life imprisonment. 
  • Remission limited a time, helps computation but does not ipso jure operate as release of the prison
Code of Criminal Procedure 
  • Section 433A is supreme over the remission rules and short-sentencing statutes made by various States
  • 433-A does not permit parole or other related release within a span of fourteen years
  • S. 432(1) empowers the appropriate Government, to remit or suspend the execution of sentence, with or without conditions.
  • Under S. 432(2), the application may be referred by the appropriate Government to the presiding judge or court who made conviction order, before granting order of remission.
  • Under S. 432(3), Appropriate Government may cancel the suspension or remission if the conditions are not fulfilled by the convicts.
  • S. 432(4)- The conditions may be one that can be fulfilled by the convicts and one can be against his will 
  • Proviso to S. 432(5)- No remission petitions shall be entertained if the convict is above 18 years of age unless the person is in jail.
  • S. 432(6)- Above mentioned provisions are also applicable to any criminal order passed by any provision of this Code or any other law, which restrict the liberty of any person.
  • 432(7)- It defines the meaning of appropriate Government as Central Government and State Government within which the sentence was passed.
  • S. 433A- It restricts the power to grant remission by appropriate Government by placing a condition that the sentence must be completed at least for 14 years.
  • S. 435- State Government have to act in consultation of Central Government in cases where the sentence is for an offence which is investigated by Delhi Special Police Establishment Act, 1946 or any other central agency empowered to investigate. 
  • Ratan Singh case- Test to determine the appropriate Government is to locate the State where the accused was convicted and sentenced and the Government of that State would be the appropriate Government within the meaning of Section 401 of the CrPC


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