Fraud played on court: SC on earlier order on rapists' remission

The Supreme Court on Monday held as nullity the May 13, 2022, judgment of another bench of the apex court, which had directed the Gujarat government to consider the remission applications of the 11 convicts in the Bilkis Bano gang-rape case and murder of seven of her family members, saying it was obtained by "playing fraud on court".

In its May 13, 2022, verdict, a bench comprising Justices Ajay Rastogi (now retired) and Vikram Nath had asked the Gujarat government to consider the plea of convict Radheshyam Shah for premature release in terms of its remission policy of July 9, 1992, holding that the government of the state where the offence had taken place has the jurisdiction to decide the application.

On Monday, the top court noted that Shah had initially approached the Gujarat high court in 2019 for a direction to consider his application for remission.

"By order dated July 17, 2019, the high court disposed of the criminal application by observing that he should approach the appropriate government being the state of Maharashtra. His second such application before the Gujarat high court was also dismissed in 2020," it said.

The Supreme Court said Shah later moved the SC but did not disclose that he had, within 14 days of the order dated July 17, 2019, approached the Maharashtra government with his application for remission, and that the CBI and the special judge (CBI), Mumbai, had given a negative recommendation in his case.

"Thus, by suppressing material aspects and by misleading this court, a direction was sought and issued to the respondent state of Gujarat to consider the premature release or remission of the writ petitioner, ie, respondent No.3 on the basis of the remission policy," the bench said.

The top court said Shah had, in order to persuade the bench in his favour in 2022, also made a "misleading statement" that a divergence of opinion between the Bombay and Gujarat high courts led to filing of the writ petition.

"At this stage, we may point out that if respondent No.3 (Shah) had felt aggrieved by the order of the Gujarat high court dated 17.07.2019, it was open to him to have challenged the said order before this court by filing a special leave petition, but he did not do so.

"Rather, he complied with the order of the Gujarat high court by filing remission application dated August 1, 2019, before the government of Maharashtra where not only the process for consideration of the remission prayer was initiated, but opinions of various authorities were also obtained," the bench said.

The apex court said when the opinions were found to be negative, Shah filed a  petition before the SC in 2022 seeking a direction to the state of Gujarat to consider his remission application suppressing the above material facts.

"This he could not have done, thereby misrepresenting and suppressing relevant facts, thus playing fraud on this court," the bench said.

"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 (the suppression of truth is the suggestion of falsehood). 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," the bench said.

The 11 convicts released prematurely were: Bakabhai Vohania, Bipin Chandra Joshi, Kesarbhai Vohania, Govind Nai, Jaswant Nai, Mitesh Bhatt, Pradeep Mordhiya, Radheshyam Shah, Rajubhai Soni, Ramesh Chandana and Shailesh Bhatt.

Besides the petition filed by Bilkis Bano contesting the remission, several other PILs, including one by CPI-M leader Subhashini Ali, independent journalist Revati Laul and former vice-chancellor of Lucknow University Roop Rekha Verma, challenged the relief. TMC leader Mahua Moitra also filed a PIL against the remission and the premature release of the convicts.

Bilkis Bano was only 21 years old and five months pregnant when she was gang-raped while fleeing the horror of the communal riots. Her three-year-old daughter was among the seven family members killed in the riots.

All 11 convicts in the case were granted remission by the Gujarat government and released on August 15, 2022.