The Supreme Court on Friday refused to entertain a plea of two of the 11 convicts in the Bilkis Bano case challenging the January 8 verdict cancelling their remission.
A bench of Justices Sanjiv Khanna and Sanjay Kumar termed the plea as "absolutely misconceived" and said how can it sit in appeal over an order passed by another bench of the apex court.
"What is this plea? How is this plea maintainable? This is absolutely misconceived. How can an Article 32 petition be filed? We can't sit in appeal over an order passed by another bench," the bench said.
Advocate Rishi Malhotra appearing for convicts Radheyshaym Bhagwandas Shah and Rajubhai Babulal Soni sought permission to withdraw the plea.
The bench allowed the counsel to withdraw the plea.
Shah has also applied for interim bail.
In March, both the convicts moved the top court contending that its January 8 verdict cancelling remission of their sentence was "in teeth of" a 2002 constitution bench order and sought the issue to be referred to a larger bench for "final" adjudication.
Shah and Soni, both lodged in Godhra sub-jail after the apex court verdict, said an "anomalous" situation has arisen wherein two different coordinate benches (benches of the same strength) have taken diametrically opposite views on the same issue of premature release as well as on which policy of the state government would apply to the petitioners for remission.
The plea, filed through Malhotra, said while one bench on May 13, 2022, categorically ordered the Gujarat government to consider Shah's application for premature release in terms of the state government's remission policy of July 9, 1992, the bench that pronounced the verdict on January 8, 2024, concluded that it was Maharashtra and not the Gujarat government that was competent to grant remission.
"That with greatest respect the judgment rendered on January 8, 2024, is directly in teeth of the constitution bench decision in Rupa Ashok Hurra's case of 2002 and the same needs to be set aside, as if the same is permitted then it would lead to not only judicial impropriety but to uncertainty and chaos as to which precedence (sic) of law has to be applied in future.
"In other words, if any party being not satisfied with the Supreme Court judgment on an issue, he would be entitled to file a writ petition challenging the said judgment by taking recourse to the law laid down in Bilkis Bano case," the plea said.
It said a fundamental issue arises for consideration as to whether a subsequent co-ordinate bench can set aside its judgment rendered by its earlier co-ordinate bench and pass contradictory orders/judgments overruling its earlier view or the proper course would have been to refer the matter to a larger bench in case it felt that the earlier judgment was passed in wrong appreciation of law and facts.
The plea sought a direction to the Centre to consider the case of the petitioners for premature release and clarify which judgment of its coordinate benches of May 13, 2022, or January 8, 2024, would apply to them.
It said since two benches of the apex court of the same strength have passed conflicting orders, the matter should be referred to a larger bench for final adjudication.
On January 8, in a massive setback to the Gujarat government, the top court quashed the remission it had granted to 11 convicts in the high-profile gang-rape case of Bilkis Bano and the killing of her seven family members while slamming the state for being "complicit" with the accused and abusing its discretion.
It ordered all the convicts, who were released prematurely on Independence Day in 2022, back to jail within two weeks.
Criticising the Gujarat government, the apex court said it "usurped" the power of the Maharashtra government to grant remission to the convicts.
It 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 case, saying it was obtained by "playing fraud on the court".
Bilkis Bano was 21 years old and five months pregnant when she was raped while fleeing the horror of the communal riots that broke out after the Godhra train burning incident in February 2002. Her three-year-old daughter was among the seven family members killed.
