Bilkis Bano’s Case | Supreme Court Says Its Earlier Order Was Obtained By Fraud; Also Terms It 'Per Incuriam' [Read Judgment]

The court also added that the order was obtained by suppressing material facts and misleading the Court, and thus suppressio veri suggestio falsi. The bench was further of the opinion that it could not have set aside an order of the High Court in a petition under Article 32 of the Constitution of India.

The bench also noted that it was only Radheshyam Shah (convict and Respondent no. 3) who had approached the Court or any High Court seeking remission. Therefore, in regards with other 10 respondents, there was no direction of Supreme Court or any court to the State of Gujarat to consider their pre-mature release.

It is pertinent to note that the on Shah’s plea in the Supreme Court pleading that he had been in jail for 15 years and 4 months without remission as of April 1, 2022, the Apex Court In its order dated May 13, while setting aside an order of the Bombay High Court held that since the crime was committed in Gujarat, the state of Gujarat was the appropriate government to examine Shah's application.

The Court had then directed the Gujarat government to consider the application for premature release in terms of the policy dated July 9, 1992 and to be decided within two months.

Holding that a bench Justice B.V. Nagarathna and Justice Ujjal Bhuyan in the judgment consequentially while referring to Naresh Shridhar Mirajkar v. State of Maharashtra, AIR 1967 SC 1 was of the opinion that that neither the order of the Gujarat High Court dated July 17, 2019 could have been challenged by Shah or for that matter by anybody else before the Apex Court in a writ proceeding under Article 32 of the Constitution of India nor the said order of the High Court could have been set aside in a proceeding under Article 32.

While going on another angle as the bench referred to it, observed, “We wish to consider the case from another angle. The order of this Court dated 13.05.2022 is also per incuriam for the reason that it fails to follow the earlier binding judgments of this Court including that of the Constitution Bench in V. Sriharan vis-à-vis Writ Petition (Crl.) No.491 of 2022 Etc. Page 178 of 251 the appropriate Government which is vested with the power to consider an application for remission as per sub-section (7) of Section 432 of the CrPC and that of the nine Judge Bench decision in Naresh Shridhar Mirajkar that an order of a High Court cannot be set aside in a proceeding under Article 32 of the Constitution”.

On another contention raised pertaining to the May, 2022 order that since the Apex Court has directed that the State of Gujarat was the appropriate Government, therefore the same was binding on the parties even though it may be contrary to the earlier decisions of the Court, the bench observed, “We cannot accept such a submission having regard to what has been observed above in the case of Synthetics and Chemicals Ltd. v. State of U.P (1990) 1 SCC 109 which was also with regard to the application of the same doctrine between the very same parties inasmuch as when a judgment has been delivered per incuriam or passed sub-silentio, the same cannot bind either the parties to the judgment or be a binding precedent for the future even between the same parties. Therefore, for this reason also, the order dated 13.05.2022 would not bind the parties thereto and particularly, to the petitioner in Writ Petition (Crl.) No.491 of 2022 (Bilkis Bano’s plea) who was in any case not a party to the said writ proceeding”.

Further while referring to S.P. Chengalvaraya Naidu v. Jagannath (Dead) through LRs, (1994) 1 SCC 1 it has been observed that “fraud avoids all judicial acts, ecclesiastical or temporal. Further, no judgment of a court, no order of a minister would be allowed to stand if it has been obtained by fraud. Fraud unravels everything” vide Lazarus Estates Ltd. vs. Beasley, (1956) 1 ALL ER 341 (“Lazarus Estates Ltd.)”.

It is pertinent to note that on April 2019, the Apex Court had directed the Gujarat government to pay Rs. 50 lacs compensation, a job and a house to Bilkis Bano.

One of them, Radheshyam Shah, had approached the Gujarat High Court seeking remission of the sentence under sections 432 and 433 of the CrPC.

The High Court dismissed his plea while observing that the "appropriate government" to decide about his remission is Maharashtra and not Gujarat.

Shah then filed a plea in the Supreme Court pleading that he had been in jail for 15 years and 4 months without remission as of April 1, 2022. In its order dated May 13, the Apex Court held that since the crime was committed in Gujarat, the state of Gujarat was the appropriate government to examine Shah's application.

The Court directed the Gujarat government to consider the application for premature release in terms of the policy dated July 9, 1992 and may decide within two months.

Consequentially, the bench in the judgment observed, “We are of the considered view that the writ proceedings before this Court is pursuant to suppression and misleading of this Court and a result of suppressio veri suggestio falsi. Hence, in our view, the said order was obtained by fraud played on this Court and hence, is a nullity and non est in law. In view of the aforesaid discussion, we hold that consequently the order dated 13.05.2022 passed by this Court in Writ Petition (Crl.) No.135 of 2022 in the case of Radheshyam Bhagwandas Shah is hit by fraud and is a nullity and non est in the eye of law and therefore cannot be given effect to and hence, all proceedings pursuant to the said order are vitiated”.

Cause Title: Bilkis Yakub Rasool v. Union of India Others [Neutral Citation: 2024 INSC 24]

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