Supreme Court rejects Gujarat plea for review of Bilkis case order, adverse remarks

The state government had sought a review stating that some of the comments in the January 8 judgment were “not only highly unwarranted and against the record of the case” but “caused serious prejudice to the State”.

The review petition termed as “extreme observation” the court’s remarks in the order that the state government “acted in tandem and was complicit with Respondent No 3/accused” Radheshyam Bhagwandas Shah, who was among the 11 men convicted of raping Bilkis Bano and killing seven of her family members during the 2002 riots.

The plea said the Supreme Court holding the State of  Gujarat guilty of “usurpation of power” and “abuse of discretion” in its order “is an error apparent on the face of the record”. The state said it was “only complying” with the May 13, 2022 “order of a Co-ordinate Bench of the SC”, which held it to be the “Appropriate Government” to take a call on the remission request of the convicts and also “issued a mandamus to it to decide the remission application of one of the convicts in accordance with the Remission Policy of 1992”.

The May 13, 2022 order of a two-judge bench had come on a plea by Shah. Sentenced to life imprisonment in the case by a CBI court in Mumbai in 2008, he had approached the apex court after completing 15 years and 4 months in jail.

Reversing the remission granted to the 11 convicts on January 8, the Supreme Court bench of Justices Nagarathna and Bhuyan had held that the May 13, 2022 judgment “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… and therefore, fraudulently obtained at the hands of this Court”.

The court also said: “We fail to understand as to why the State of Gujarat did not file a review petition seeking correction of the order dated May 13, 2022… 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… ensuing litigation would not have arisen at all.”

In its latest review petition, the state, however, said that “no adverse inference of ‘usurpation of power’ can be drawn against” it for not filing a review petition against the 2022 order.

It said that records would reveal that it “has consistently submitted before this Hon’ble Court as well as the Hon’ble High Court of Gujarat, that the State of Maharashtra is the ‘Appropriate Government’ under Section 432(7) of CrPC” to decide on the remission applications.

“A bare perusal of the judgement dated 13.05.2022… would show that a categorical submission was made by the State of Gujarat that since the trial has been concluded in the State of Maharashtra, the expression ‘Appropriate Government’ as referred to under Section 432(7) of CrPC would be the State of Maharashtra,” it said.

The Gujarat government said that although it did file the review petition against the 2022 order, the court “clearly erred in not considering the fact that a review petition” was filed by Bilkis Bano herself but it was dismissed “vide a speaking order” on December 13, 2022.

The plea said the top court “failed to appreciate that all the correct facts as well as the relevant judgements were placed before” it in the review petition and added that the state filing the review was “not only unnecessary”, and the order dated December 13, 2022 dismissing Bilkis Bano’s review petition “shows that no ‘fraud’ as held… has been committed on this… Court”.

It said “even otherwise, by no stretch of imagination, the State of Gujarat can be held to have ‘acted in tandem and complicit with Respondent No.3’ (Radheshyam Bhagwandas Shah) in perpetuating the… so-called fraud, by non-filing of a Review Petition, which in fact, as a matter of record was heard… and dismissed…”.