Case Title: Bilkis Yakub Rasool vs Union of India & Ors.
Case No: WP (CRL.) NO.491 OF 2022
Decided on: 08.01.2024
Coram: Hon’ble Mrs. Justice B.V. Nagarathna
Facts of the Case
In the wake of the 2002 Gujarat riots, Bilkis Yakub Rasool, a young pregnant woman, endured the unimaginable – a brutal gang rape fueled by communal hatred and the tragic loss of her entire family. The Central Bureau of Investigation took over the case, leading to charges against 20 individuals – including police personnel and doctors – for gang rape, murder, and rioting. The trial was eventually transferred to a neutral location due to safety concerns. Ultimately, 11 individuals were convicted and sentenced to life imprisonment. Now, she challenges the early release of 11 convicts, arguing for justice both for herself and all victims of the riots. Citing the gravity of the crimes, her own lasting trauma, and concerns for her safety, Ms. Rasool’s writ petition seeks to ensure continued imprisonment for the perpetrators and uphold the principles of accountability in the face of heinous communal violence.
After the petitioner- victim filed a transfer petition, the trial was transferred from Ahmedabad to the competent and neutral court in Mumbai. Even after the Special judge convicted the 11 accused and sentenced them to life imprisonment, the trial court thereafter acquitted the remaining 5 police personnel and 2 doctors. Against the trial court when the state filed criminal appeals before the Bombay High Court it upheld the conviction of 11 persons accused. The high court further claimed the improper investigation by the Gujrat Police.
Respondent no. 3 filed a criminal application before the Gujrat High Court challenging the non-consideration of his application for premature release under Sections 433 and 433A of CrPC. The Ministry of Home Affairs, Government of India conveyed its approval under Section 435 of the CrPC for the premature release of all 11 convicts.
This present writ has been filed to quash the orders of acquittal.
Legal Provision
Section 432 of CrPC –
Power to suspend or remit sentences.
When any person has been sentenced to punishment for an offence, the appropriate Government may, at any time, without Conditions or upon any conditions 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.
- Whenever an application is made to the appropriate Government for the suspension or 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 as to whether the application should be granted or refused, together with his reasons for such opinion and also to forward with the statement of such opinion a certified copy of the record of the trial or of such record thereof as exists.
- In this section and in section 433, the expression” appropriate Government” means,-
- in cases where the sentence is for an offence against, or the order referred to in sub- section (6) is passed under, any law relating to a matter to which the executive power of the Union extends, the Central Government;
- in other cases, the Government of the State within which the offender is sentenced or the said order is passed.
Section 433 in CrPC –
Power to commute sentence —
The appropriate Government may, without the consent of the person sentenced commute
(a) a sentence of death, for any other punishment provided by the Indian Penal Code (45 of 1860);
(b) a sentence of imprisonment for life, for imprisonment for a term not exceeding fourteen years or for a fine;
(c) a sentence of rigorous imprisonment, for simple imprisonment for any term to which that person might have been sentenced, or for a fine;
(d) a sentence of simple imprisonment, for a fine.
Section 435 of CrPC states the powers conferred by sections 432 and 433 upon the State Government to remit or commute a sentence, in any case where the sentence is for an offence
Issue
- Whether the writ petition filed under Article 32 of the constitution, is maintainable?
- Whether the State of Gujrat had jurisdiction to entertain the prayers seeking remission of respondents?
Court Decision and Analysis
The Apex court held that the writ petition filed under Article 32 of the constitution, is maintainable and that the petitioner therein didn’t need to have filed a writ petition under Article 226 of the Constitution before the Gujarat High Court.
In view of Section 432 (7) read with Section 432 (1) and (2) of the CrPC, the court held 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. Subsequently, the remission orders are illegal and therefore quashed.
The court further ruled that the May 13, 2022 judgment was null and void due to the party seeking it concealing and misrepresenting crucial information.
The Gujarat remission orders for the 11 convicts (10.08.2022) were unlawful due to:
- Usurpation of power: Gujarat lacked authority, Maharashtra governed.
- Inapplicable policy: Gujarat’s remission policy didn’t apply to convicts.
- Ignored opinion: The Mumbai court’s opinion (required) was disregarded.
- Unpaid fine: The fine imposed by the Mumbai court and confirmed by Bombay HC remained unpaid, invalidating remission.
The court held that the plea of ‘protection of liberty’ of the 11 respondents cannot be accepted and that the Rule of Law must prevail.
Hence, the present writ petition was allowed in the aforesaid terms, and all other pending applications were disposed off.
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Written by- Bhawana Bahety
