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Criminal law expert Rebecca M John, senior advocate, opined that the Supreme Court erred in holding that the state of Gujarat has the jurisdiction to decide the commutation of the sentence of 11 convicts in the Bilkis Bano case.
Speaking in an interview with LiveLaw, John said that under section 432 (7) of the Code of Criminal Procedure, the state where the trial was held and where the sentence was passed would have jurisdiction to hear applications for clemency. She explained that this position has been reiterated in several Supreme Court decisions, including the Constitutional Chamber’s 2015 decision in the case Union of India Vs V Sriharan @ Murugan.
As the Bilkis Bano case trial was transferred to the state of Maharashtra by the Supreme Court and the sentence was delivered by a sessions court in Mumbai, the Government of Maharashtra is the “appropriate government” to consider commutation of the sentence and not the Government of Gujarat. The text of the statute is very clear in this regard, as section 432 (7) says that the “appropriate Government” is “the Government of the State in which the offender is convicted or the said order is made”.
In May 2022, while allowing a petition filed by one of the convicts in the Bilkis Bano case, a two-judge bench of the Supreme Court ruled on the case Radheshyam Bhagwandas Shah @ Lala Vakil Vs State of Gujarat that the plea of pardon should be decided by the Government of Gujarat as the offense was committed in the State of Gujarat. Earlier the High Court of Gujarat relying on V Sriharan Decision, had dismissed the convict’s petition, holding that the remission should be decided by the Maharashtra government. The Supreme Court refused to accept the opinion of the Supreme Court. It said the case was transferred to Maharashtra due to “exceptional circumstances” for the “limited purpose of the trial”. The trial would ordinarily have been held in Gujarat and since the convicts were shifted to Gujarat jail after the trial, the Government of Gujarat would have jurisdiction.
The exact passage from the judgment handed down by a panel of judges Justices Ajay Rastogi and Vikram Nath is as follows :
“In our considered opinion, the submission made by learned counsel for the respondents is not sustainable for the reason that the offense in the present case was committed on cognizance in the State of Gujarat and ordinarily the trial should have ended in the same State and in terms of Section 432(7 ) of the CrPC, the appropriate Government would ordinarily be the State of Gujarat, but the present case was transferred in exceptional circumstances by this Court for limited purpose of trial and transfer to the neighboring State (State of Maharashtra ) vide order dated 06.08.2004, but after the trial and conviction of the prisoner transferred to the State where the offense was committed remains the appropriate Government for the purposes of Section 432 (7) CrPC”.
The Supreme Court misinterpreted the law
John said the Supreme Court’s opinion was based on a “misinterpretation of the law.”
“I respectfully disagree with this part of the Supreme Court’s decision and believe that a review should be filed,” she said. She pointed out that in the almost concurring judgment of Justice Lalit in Sriharan (Justice Lalit dissented from the majority on some other points), this same issue was discussed. She read the relevant part as follows:
“As far as the definition of appropriate government is concerned, Section 432(7) of the Cr.PC takes a slightly different approach. It designates the Central Government as the appropriate Government in cases where the conviction is for an offense against any law relating to a matter to which the executive power of the Union extends. In this sense, the same principle as in Article 73 of the Constitution and Section 55A of the IPC applies. The residuary area is then left to the State Government and it is further stated that in cases other than where the Central Government is the appropriate Government, the Government of the State in which the offender is convicted shall be the appropriate Government. In other words, it carries same gist and in no way different from the principle in Article 73 read with Article 162 on the one hand and Section 55A of the IPC on the other. Specifying the State in which the offender is convicted serves an entirely different purpose and helps in finding mongst more than one State Government which is the appropriate Government as laid down in State of Madhya Pradesh v. Ratan Singh and others, State of Madhya Pradesh v. Ajit Singh and others, Hanumant Das v. Vinay Kumar and others and Prav. of AP and others vs. MT Khan. According to this provision, even if a crime is committed in country A, but if the trial takes place and the sentence is passed in country B, the latter country is the appropriate government“. (Emphasis added, Para 23 of Justice Lalit’s Sriharan judgment)
She added that the same sentence had been stated in earlier precedents such as State of Madhya Pradesh Vs. Ratan Singh (1976) 3 SCC 470 and Hanumant Dass v. Vinay Kumar and others (1982) 2 SCC 177.
The Gujarat government should not take any decision as the trial has been transferred due to extraordinary circumstances
The senior counsel further said that the case was transferred due to extraordinary circumstances and hence apprehension of bias on the part of the Gujarat government would arise.
“In fact, the circumstances of the transfer were extraordinary and therefore give rise to allegations of bias,” she said. The Gujarat government would not have been able to accept the remission pleas as the process had been completed in Maharashtra.
The “appropriate government” in this case under Section 432(7)(a) CrPC is the Government of Maharashtra, she added. According to her, the view of the Gujarat High Court based on the decision in the Sriharan case was correct and the High Court erred in overruling it.
“I am afraid that the reasoning given by the 2-judge bench of the Supreme Court is not sustainable,” she stated.
“It doesn’t matter where the crime was committed. The appropriate Government is the Government in whose State the Court convicted the person,’ she repeated.
Pardon is not legally granted if the judge’s opinion is disregarded
Referring to some media reports that the prison advisory committee had ignored the opinion of the presiding judge of the trial court – which was against the granting of a pardon – John said that if that was the case, then the decision was not legal.
Section 433(2) CrPC states that the government may require the presiding judge of the trial court to give an opinion on the grant of remission. Although the provision uses the word “may”, the Supreme Court held that it is a mandatory requirement. Sriharan case.
“If the opinion was requested and not taken into account, then there must be sufficient grounds for disregard. It does not appear that there was.” she said.
The requirement to seek the judge’s opinion is due to the fact that the judge has seen the defendants’ conduct at trial, seen the evidence in the record, and considered the aggravating and mitigating circumstances at sentencing. Therefore, the sentencing judge’s opinion is extremely important, she explained.
“Disregarding the sentencing judge’s opinion, which according to media reports was a negative opinion, then I think that’s a breach of law that can be challenged. This is illegal,” she said.
Mandate to seek the consent of the Centre
She further pointed out that under Section 435 CrPC, the Central Government must be consulted by the State Government before granting clemency in a case investigated by the CBI. In this case, it is not publicly available whether such an opinion was requested from the Center.
“If it was sought, what was the nature of the opinion? Did the CBI consent to the release. If it was not sought, it is again irregularity and illegality.” she added.
The release of convicts sends a worrying message
She also said that the release of convicts sends an alarming message to society. There are also facts giving rise to a feeling of partiality on the part of the state administration.
“One poor person cannot be allowed to remain in prison without parole for 30 years while these people who were accused of gang-raping and murdering people, including the murder of two children, can get out. There must be consistency in the application of the law. To that extent there is a systemic failure because there is no consistency. It all depends on the hunch of the advisory board. Some people are released after 14 years, some lie for 30-40 years. It’s terribly unfair.” she expressed an opinion.
Referring to the plight of Bilquis Bano, she said: “The facts of this case shake you up. They are very brutal. What this woman went through…to see her little child ripped from her arms and then whipped in front of her eyes. Then she herself was gang-raped. When she wakes up, she sees the corpses of her family around her. These are all facts. The courts have accepted these facts as true. I am disappointed that when this country wept for blood and celebrated the execution of the Nirbhaya killers, saying their collective conscience was satisfied, they did not seem to sympathize with Bilquis Bano who suffered an equally brutal and heinous assault not only with respect to her, but also to her family members, including her young child. While I believe that reformation should be central to sentencing, I also believe that by the lack of consistency in the application of the law, you are really sending a message that some criminals are more important than others.”
You can watch the video of the interview here.
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