"Absolutely Misconceived": Apex Court Dismisses Writ Petitions Of Two Convicts In Bilkis Bano Case Seeking Reconsideration Of Its Earlier Verdict On Remission

The Supreme Court has dismissed a Writ Petition filed by two convicts, Radheyshaym Bhagwandas Shah and Rajubhai Babulal Soni, in the Bilkis Bano case seeking a review of the Court's earlier decision to cancel their remission.

The Bench of Justice Sanjiv Khanna and Justice Sanjay Kumar termed the petition "absolutely misconceived" and declined to entertain it, asserting that they cannot review an order issued by another bench of the Apex Court.

At the outset, Justice Khanna said, "How is this Writ Petition maintainable? This is absolutely misconceived."

To this, the Counsel appearing for the two convicts submitted, "I will explain; what has happened is, I moved the Gujarat High Court."

"We are aware of that; you may not start from the beginning," Justice Khanna said.

The Counsel then submitted, that there are now two judgments.

Justice Khanna pointed out that the second judgment considers the first judgment.

"How can an Article 32 petition be filed? We are not sitting in appeal; the second judgment will prevail. That's it. Article 32 is not an apparent jurisdiction first, Secondly, when the earlier judgment has been considered in the second judgment, a Writ under Art. 32 will not be maintainable," Justice Khanna said.

The Counsel requested the Bench to refer the matter to a larger bench. "Will your Lordships, will allow me to at least file a review of the judgment," he further submitted.

"Please, I am sorry, we are not going to re-examine this. You want to withdraw, you can withdraw. We are not going to say anything on the review etc.," the Court said.

The Counsel agreed to withdraw the Petition.

However, the Court stuck to its stance that the plea under Article 32 of the Constitution was not maintainable for challenging the previous bench's order, highlighting that it cannot function as an appellate authority over its own judgments. "All that we are permitting is you withdraw it...the Counsel for the petitioner seeks to withdraw the petition. Dismissed as withdrawn," the Bench ordered.

Pertinently, in January 2024, the Court had dismissed applications preferred by the 11 convicts in Bilkis Bano's rape case seeking more time to surrender before jail authorities, as the bench did not find any reason in the applications to allow it. The bench had quashed the remission granted to the 11 convicts in Bilkis Bano’s plea challenging their pre mature release in the rape-murder case by the Gujarat Government.

Earlier, on January 8, 2024, while quashing the remission granted to the 11 convicts in Bilkis Bano’s plea the Court had observed that its order dated May 17, 2022, was a nullity and non-est in law (bad in law) as a result of being per incuriam (lacking due regard to the fact or law).

On December 13, 2022, Justice Bela M Trivedi recused from hearing the writ plea filed by Bilkis Bano. The Court said that the writ petition may be listed before a Bench of which Justice Bela M Trivedi is not a member. In her plea against the grant of remission which had led to the release of the convicts on August 15, Bilkis Bano has said the state government passed a mechanical order completely ignoring the requirement of law as laid down by the Supreme Court.

Bilkis Bano was 21 years old and five months pregnant when she was gang-raped while fleeing the riots that broke out after the Godhra train burning incident. Her three-year-old daughter was among the seven family members killed.

The investigation in the case was handed over to the CBI and the trial was transferred to a Maharashtra court by the Supreme Court. A special CBI court in Mumbai had on January 21, 2008 sentenced the 11 to life imprisonment. Their conviction was later upheld by the Bombay High Court and the Supreme Court. The 11 men convicted in the case walked out of the Godhra sub-jail on August 15 after the Gujarat government allowed their release under its remission policy. They had completed more than 15 years in jail.

Cause Title: Radheshyam Bhagwandas Shah @ LalaVakil and Anr V. Union of India and Anr. [Diary No. 9861 / 2024]