New Delhi, Jan 8.
The Supreme Court on Monday quashed twin top court and Gujarat government orders which set the stage for releasing 11 gangrape case convicts in the Bilkis Bano case in 2022 and sent them back to jail to complete the rest of their life terms.
Bilkis Bano was gangraped and several other members of her family were killed during the 2002 riots. This case was transferred by the apex court to the CBI for an independent probe and trial was held in neighbouring Maharashtra.
The Gujarat government released them in 2022 on the basis of a top court judgement granting jurisdiction to the state government to take a call on their remission.
Today, a two-judge bench of the top court, said that the state government had acting “in tandem” and was “complicit” with what one of the convicts had wanted in the top court.
“We wish to emphasize that in the instant case rule of law must prevail.”
“If ultimately rule of law is to prevail and the impugned orders of remission are set-aside by us, then the natural consequences must follow. Therefore, respondent Nos 3 to 13 are directed to report to the concerned jail authorities within two weeks from today,” it said.
Justices B.V. Nagarathna and Ujjal Bhuyan said that the earlier bench was not told the fact that investigation and trial in the case had been transferred by the court itself.
Only the Maharashtra government could have exercised this jurisdiction, the bench said today.
Facts had been both “supressed” and “misrepresented” before the 2022 bench, it said.
The order was obtained by fraud and hence the convicts cannot be allowed to stay outside, the bench said, asking them to surrender to the jail authorities within 2 weeks.
The top court noted that they had spent 14 odd years in jail and must return surrender to complete their jail terms. The court has said earlier that a life term means the whole natural term of a person’s life and not 14 years.
The court faulted the state decision to release them under its remission policy on many counts – for usurping jurisdiction, for acting in tandem with a convict and for ignoring the negative opinions of the CBI and the presiding judge who convicted them on their release plea.
It also flayed the state government for ordering their en masse release without due application of mind through mechanical, cyclostyled orders. The convicts had not paid the fines they had to pay Bilkis Rasool and had to spend an additional six years in jail for default of fines.
That showed lack of remorse on the part of the culprits, it said.
There was nothing else to show that they had behaved well while in custody. One of them even had a fresh case filed against him while on parole, the court said while alluding to the frequent paroles and furloughs granted to them, the bench noted.
The heinousness of the crimes committed by them, the communal motivation of the crimes and the context in which those took place are contended to have not been considered by the state while granting remission, it said.
“Thus, the orders of remission are vitiated by the vice of arbitrariness for non-consideration of relevant facts and factors.” The court also dubbed the central government decision to back the state move without independently applying its mind to the remission pleas as “no consultation”.
The 11 convicts are Radheshyam Shah, Jaswant Nai, Govind Nai, Kesar Vohania, Baka Vohania, Raju Soni, Ramesh Chandana, Shailesh Bhatt, Bipin Joshi, Pradip Modhiya and Mitesh Bhatt.
They were sentenced to life terms in jail for raping and murdering other members of Bilkis Bano’s family. Bilkis, then 21, was pregnant when she was raped.
Her mother was gang raped and murdered and her cousin who had just delivered a baby was gang raped and murdered.
Eight minors including her cousin’s two-day-old infant were also murdered. Her three-year-old daughter was murdered by smashing her head on a rock, her two minor brothers, two minor sisters, her phupha, phupi, mama and three cousins were all murdered.