2024 (1) TMI 1318 - SC - Indian Laws

Maintainability of petition filed by one of the victims under Article 32 of the Constitution - Grant of remission and early release of respondent Nos.3 to 13 - guilty of committing heinous crimes during the large-scale riots in Gujarat. Whether the petition filed by one of the victims in Writ Petition (Crl.) No.491 of 2022 under Article 32 of the Constitution is maintainable? - HELD THAT - The contention regarding the State of Gujarat not being the competent State to consider the validity of the orders of remission in a petition filed under Article 226 of the Constitution, particularly, when the question of competency was raised, could not have been dealt with by the Gujarat High Court on the principle of judicial propriety. Therefore, for this reason also the petitioner in Writ Petition has, rightly approached this Court challenging the orders of remission. The contentions of learned Senior Counsel, Sri S. Guru Krishna Kumar and Sri Chidambaresh are hence, rejected. Thus, Writ Petition (Crl.) No.491 of 2022 filed under Article 32 of the Constitution is clearly maintainable. Whether the writ petitions filed as Public Interest Litigation (PIL) assailing the impugned orders of remission dated 10.08.2022 are maintainable? - HELD THAT - It is not necessary to answer the point regarding maintainability of the PILs in this case inasmuch as one of the victims, namely, Bilkis Bano has also filed a writ petition invoking Article 32 of the Constitution assailing the orders of remission which is held to be maintainable. The consideration of that petition on its merits would suffice in the instant case. Hence, the question of maintainability of the PILs challenging the orders of remission in the instant case would not call for an answer owing to the aforesaid reason. As a result, we hold that consideration of the point on the maintainability of the PILs has been rendered wholly academic and not requiring an answer in this case. Therefore, the question regarding maintainability of a PIL challenging orders of remission is kept open to be considered in any other appropriate case. Whether the Government of State of Gujarat was competent to pass the impugned orders of remission? - HELD THAT - The Government of State of Gujarat (Respondent No. 1 herein) had no jurisdiction to entertain the applications for remission or pass the orders of remission on 10.08.2022 in favour of Respondent No. 3 to 13 herein as it was not the appropriate Government within the meaning of Sub-section (7) of Section 432 of the Code of Criminal Procedure - this Court's order dated 13.05.2022 being vitiated and obtained by fraud is therefore a nullity and non est in law. All proceedings taken pursuant to the said order also stand vitiated and are non est in the eye of law. Whether the impugned order of remission passed by the Respondent - State of Gujarat in favour of Respondent Nos. 3 to 13 are in accordance with law? - HELD THAT - It is difficult understand as to, why, the State of Gujarat, first Respondent herein, did not file a review petition seeking correction of the order dated 13.05.2022 passed by this Court in Writ Petition No. 135 of 2022 in the case of Respondent No. 3 herein. Had the State of Gujarat filed an application seeking review of the said order and impressed upon this Court that it was not the appropriate Government but the State of Maharashtra was the appropriate Government , ensuing litigation would not have arisen at all. On the other hand, in the absence of filing any review petition seeking a correction of the order passed by this Court dated 13.05.2022, the first Respondent-State of Gujarat herein has usurped the power of the State of Maharashtra and has passed the impugned orders of remission on the basis of an order of this Court dated 13.05.2022 which is a nullity in law. The first Respondent State of Gujarat was not at all the appropriate Government, therefore, the proceedings of the Jail Advisory Committee of Dahod Jail, which had recommended remission is itself vitiated and further, there is no compliance of Sub-section (2) of Section 432 of the Code of Criminal Procedure in the instant case in as much as the said opinion was not considered by the appropriate Government. On that score also, the orders of remission dated 10.08.2022 are vitiated. Petition allowed.

Summary

Issues Involved:
1. Maintainability of the petition filed by one of the victims under Article 32 of the Constitution.
2. Maintainability of the writ petitions filed as Public Interest Litigation (PIL) assailing the impugned orders of remission.
3. Competency of the Government of the State of Gujarat to pass the impugned orders of remission.
4. Legality of the impugned orders of remission passed by the respondent-State of Gujarat in favor of respondent Nos.3 to 13.
5. Final Order.

Issue-wise Detailed Analysis:

1. Maintainability of the petition filed by one of the victims under Article 32 of the Constitution:
The Supreme Court held that the petition filed by the victim under Article 32 is maintainable. The right to file a petition under Article 32 is a Fundamental Right, and the petitioner sought to enforce her Fundamental Rights under Articles 21 and 14 of the Constitution. The Court emphasized that Article 32 is a constitutional remedy for enforcing other Fundamental Rights and is not barred by the availability of an alternative remedy under Article 226. The Court also noted that the victim approached the Supreme Court because the Gujarat High Court would not have been in a position to entertain the contention regarding the competency of the State of Gujarat to pass the remission orders due to the Supreme Court's earlier direction in Writ Petition (Crl.) No.135 of 2022.

2. Maintainability of the writ petitions filed as Public Interest Litigation (PIL) assailing the impugned orders of remission:
The Court did not provide a definitive answer on the maintainability of the PILs challenging the remission orders. It held that since the petition filed by the victim under Article 32 is maintainable and has been entertained, the question of maintainability of the PILs is kept open to be raised in any other appropriate case.

3. Competency of the Government of the State of Gujarat to pass the impugned orders of remission:
The Supreme Court held that the Government of the State of Gujarat was not the appropriate Government to pass the orders of remission under Section 432 of the CrPC. The Court emphasized that the appropriate Government is the one within whose territorial jurisdiction the offender was sentenced, not where the offense occurred or the convict is imprisoned. The Court referred to earlier judgments, including Ratan Singh, Hanumant Dass, M.T. Khan, and V. Sriharan, to support this interpretation. The Court also noted that the order dated 13.05.2022, which directed the State of Gujarat to consider the remission application, was obtained by fraud and is a nullity.

4. Legality of the impugned orders of remission passed by the respondent-State of Gujarat in favor of respondent Nos.3 to 13:
The Supreme Court held that the orders of remission dated 10.08.2022 are illegal and vitiated for multiple reasons:
- The Government of the State of Gujarat had no jurisdiction to entertain the applications for remission as it was not the appropriate Government.
- The orders of remission were passed without considering the mandatory opinion of the Presiding Judge of the convicting court, as required under Section 432(2) of the CrPC.
- The Jail Advisory Committee and other authorities ignored the fact that the convicts had not paid the fine ordered by the Special Court, Mumbai.
- The orders of remission were passed in a mechanical and arbitrary manner without application of mind.

5. Final Order:
The Supreme Court quashed the orders of remission dated 10.08.2022 passed by the State of Gujarat in favor of respondent Nos.3 to 13. The Court directed respondent Nos.3 to 13 to report to the concerned jail authorities within two weeks from the date of the judgment. The Court emphasized that Rule of law must prevail and that the liberty of the respondents, obtained through illegal orders, cannot be protected. The Court also highlighted the importance of Rule of law and the judiciary's role in upholding it.