2024 Supreme(SC) 23

SUPREME COURT OF INDIA
B.V. NAGARATHNA, UJJAL BHUYAN, JJ.
Bilkis Yakub Rasool - Petitioner
Versus
Union Of India & Others - Respondents
Writ Petition (Crl.) Nos. 491, 319, 326, 352, 403, 422 of 2022
Decided On : 08-01-2024

IMPORTANT POINTS
(1) Right to file petition under Article 32 of Constitution is also a Fundamental Right.
(2) Remission in sentence – Power to grant remission on an application filed by convict or on his behalf, is ultimately an exercise of discretion by appropriate Government.
(3) Clemency and remission in sentence – While grant of remission is exclusive prerogative of executive, Court cannot supplant its view – Court can direct authorities to reconsider representation of convict.
(4) Remission in sentence – Even in a case where trial has been transferred by Supreme Court from a court of competent jurisdiction of a State to a court in another State, it is still Government of State within which offender was sentenced which is appropriate Government which has jurisdiction as well as competency to pass order of remission under Section 432 of Cr.P.C.
(5) Sentence of imprisonment awarded to a person for committing an offence is distinct than imprisonment ordered to be undergone in default of payment of fine.
(6) Remission in sentence – Policy of remission applicable would be Policy of State which is appropriate Government and which has jurisdiction to consider that application – Policy of remission applicable at the time of conviction could apply and only if for any reason, said policy cannot be made applicable a more benevolent policy, if in vogue, could apply.

Headnote:

(A) Constitution of India – Article 32 – Writ Petition – Maintainability – Article 32 of the Constitution is a part of Part-III of Constitution of India which deals with Fundamental Rights – Right to file petition under Article 32 of Constitution is also a Fundamental Right – In instant case, petitioner has filed her writ petition under Article 32 of Constitution in order to enforce her Fundamental Rights under Article 21 of Constitution which speaks of right to life and liberty and Article 14 which deals with right to equality and equal protection of laws – Object and purpose of Article 32 of Constitution is for enforcement of other Fundamental Rights in Part-III of Constitution – Writ Petition filed by petitioner cannot be dismissed on the ground of availability of alternative remedy under Article 226 of Constitution or on the ground of its maintainability under Article 32 of Constitution before this Court – Writ Petition (Crl.) No.491 of 2022 filed under Article 32 of Constitution is clearly maintainable. (Paras 22.2 and 22.3)

(B) Constitution of India – Article 32 – Criminal Procedure Code, 1973 – Section 432 – Public Interest Litigation – Maintainability – Challenge to remission of life sentence – One of victims has also filed a writ petition invoking Article 32 of Constitution assailing orders of remission – Consideration of that petition on its merits would suffice in instant case – Question of maintainability of PILs challenging orders of remission in instant case would not call for an answer from Court – Consideration of point on maintainability of PILs has been rendered wholly academic – Question regarding maintainability of a PIL challenging orders of remission is kept open to be considered in any other appropriate case. (Para 27)

(C) Criminal Procedure Code, 1973 – Sections 432, 433 and 433-A and 435 – Constitution of India – Articles 72 and 161 – Remission/commutation of sentence – Section 433-A is a restriction on powers of remission or commutation in certain cases – Necessity for State Government to act in consultation with Central Government in certain cases is mandated in Section 435 – Powers conferred by Sections 432 and 433 upon State Government to remit or commute a sentence, in any case where sentence is for an offence (a) which was investigated by Delhi Special Police Establishment constituted under Delhi Special Police Establishment Act, 1946, or by any other agency empowered to make investigation into an offence under any Central Act other than Cr.P.C., or (b) which involved misappropriation or destruction of, or damage to, any property belonging to Central Government, or (c) which was committed by a person in service of Central Government while acting or purporting to act in discharge of his official duty, shall not be exercised by State Government except after consultation with Central Government. (Paras 32.3 and 32.5)

(D) Criminal Procedure Code, 1973 – Sections 432, 433 and 433-A and 435 – Constitution of India – Articles 72 and 161 – Remission in sentence – Appropriate Government – Government of State within which offender is sentenced or said order is passed is appropriate Government – Conviction and sentence of Court which had tried case assumes significance and appropriate Government may have to seek opinion of Presiding Judge of Court before which conviction took place, before passing order of remission – It is only Government of State within which offender was sentenced which is competent to consider application for remission and pass order remitting sentence of a convict – Place of occurrence of incident or place of imprisonment of convict are not relevant considerations – There may be various reasons for transferring of a trial from a competent Court within territorial jurisdiction of one State to a Court of equivalent jurisdiction in another State – Even in a case where trial has been transferred by this Court from a court of competent jurisdiction of a State to a court in another State, it is still Government of State within which offender was sentenced which is appropriate Government which has jurisdiction as well as competency to pass order of remission under Section 432 of Cr.P.C. – It is not Government of State within whose territory offence occurred or convict is imprisoned which can assume power of remission – It is State of Maharashtra which had jurisdiction to consider application for remission vis-à-vis respondents as they were sentenced by Special Court, Mumbai – Government of Gujarat is not appropriate Government within meaning of Section 432(7) of Cr. P.C. – When an authority does not have jurisdiction to deal with a matter or it is not within powers of authority i.e. State of Gujarat in instant case, to be appropriate Government to pass orders of remission under Section 432 of the Cr.P.C., orders of remission would have no legs to stand – Just as an order passed by a Court without jurisdiction is a nullity, in same vein, an order passed or action taken by an authority lacking in jurisdiction is a nullity and is non est in eye of law – On that short ground alone orders of remission have to be quashed. (Paras 33.4, 33.5, 33.6, 33.8 and 33.9 and 33.10)

(E) Fraud – Implications – Fraud vitiates everything – Fraud avoids all judicial acts, ecclesiastical or temporal – 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 – Fraud and justice never dwell together (fraus et jus nunquam cohabitant) – Any litigant who is guilty of inhibition before Court should not bear fruit and benefit of court’s orders – Once it is held that there was a fraud in judicial proceedings all advantages gained as a result of it have to be withdrawn – In such an eventuality, doctrine of res judicata or doctrine of binding precedent would not be attracted since an order obtained by fraud is non est in eye of law. (Paras 42, 43 and 43.1)

(F) Constitution of India – Article 32/226 – Writ Jurisdiction – Writ jurisdiction is discretionary in nature and that discretion must be exercised equitably for promotion of good faith – It is imperative that petitioner approaching Writ Court must come with clean hands and put forward all facts before Court without concealing or suppressing anything and seek an appropriate relief – If there is no candid disclosure of relevant and material facts or petitioner is guilty of misleading Court, his petition may be dismissed at threshold without considering merits of claim. (Paras 43 and 43.2)

(G) Precedent – Rule of Per Incuriam – Although it is ratio decidendi which is a precedent and not the final order in the judgment, however, there are certain exceptions to rule of precedents which are expressed by doctrines of per incuriam and sub silentio – A decision rendered by ignorance of a previous binding decision of its own or of a court of coordinate or higher jurisdiction or in ignorance of terms of a statute or of a rule having force of law is per incuriam – Such a per incuriam decision would not have a precedential value – If a decision has been rendered per in curium, it cannot be said that it lays down good law, even if it has not been expressly overruled – A decision is passed sub-silentio when particular point of law in a decision is not perceived by court or not present to its mind or is not consciously determined by court and it does not form part of ratio decidendi it is not binding. (Paras 44.1 and 44.2)

(H) Constitution of India – Articles 72 and 161 – Criminal Procedure Code, 1973 – Sections 432, 433 and 433-A and 435 – Clemency and remission in sentence – While grant of remission is exclusive prerogative of executive, Court cannot supplant its view – Court can direct authorities to reconsider representation of convict – Judicial review of exercise or non-exercise of power of pardon by President or Governor is available in law – Function of determining whether act of a constitutional or statutory functionary falls within constitutional or legislative conferment of power or is vitiated by self-denial or an erroneous appreciation of full amplitude of power, is a matter for Court to decide – Rule of law cannot be compromised on the grounds of political expediency – Exercise of power depends upon facts and circumstances of each case and has to be judged from case to case – Rule of law should be overarching conditional justification for judicial review – Punishment should not be regarded as end but only a means to an end – Executive power of clemency gives opportunity to convict to reintegrate into society – However, power of clemency must be pressed into service only in appropriate cases. (Para 48.7)

(I) Criminal Procedure Code, 1973 – Sections 432, 433 and 433-A and 435 – Remission in sentence – Power to grant remission on an application filed by convict or on his behalf, is ultimately an exercise of discretion by appropriate Government – Where there is exercise of legal power coupled with discretion by administrative authorities, test is, whether, authority concerned was acting within scope of its powers – There can be abuse of discretion when administrative order or exercise of discretion smacks of mala fides – Usurpation of power arises when a particular discretion vested in a particular authority is exercised by some other authority in whom such power does not lie – Expression “may” has to be interpreted as “shall” and as a mandatory requirement under sub-section (2) of Section 432 of Cr.P.C. – Suo motu power of remission cannot be exercised under Section 432(1) of Cr.P.C. and it can only be initiated based on application of person convicted under Section 432(2) of Cr.P.C. and ultimate order of remission should be guided by opinion to be rendered by Presiding Officer of Court concerned – Presiding Judge of Court before which conviction happens can never be a Member of Jail Advisory Committee, inasmuch he is an independent authority who should give his opinion on application seeking remission which is a mandatory requirement. (Paras 49, 50, 52.2 and 52.5)

(J) Criminal Procedure Code, 1973 – Sections 30 and 432 – Default sentence – A person is required to undergo imprisonment for default in payment of fine either because he is unable to pay amount of fine or refuses to pay such amount – Sentence of imprisonment awarded to a person for committing an offence is distinct than imprisonment ordered to be undergone in default of payment of fine – Latter is not a substantive sentence for commission of offence but is in nature of penalty for default in payment of fine – There can only be reduction in substantive sentence to be undergone by way of imprisonment for which application seeking remission is filed – Remission of sentence, which is for reduction of period of imprisonment, cannot relate to payment of fine at all – Since there was non-application of mind in this regard, impugned orders of remission are contrary to law and are liable to be quashed on this count as well. (Paras 54.2, 54.3 and 54.4)

(K) Criminal Procedure Code, 1973 – Section 432 – Remission in sentence – Policy of remission applicable would be Policy of State which is appropriate Government and which has jurisdiction to consider that application – Policy of remission applicable at the time of conviction could apply and only if for any reason, said policy cannot be made applicable a more benevolent policy, if in vogue, could apply – While considering application for remission, there cannot be any abuse of discretion – Reasons for grant or refusal of remission should be clearly delineated in order by passing a speaking order – Impugned orders of remission passed by respondent-State of Gujarat in favour of respondent Nos.3 to 13 are not in accordance with law – Government of State of Gujarat had usurped powers of State of Maharashtra which only could have considered applications seeking remission – If ultimately rule of law is to prevail and impugned orders of remission are set-aside, then natural consequences must follow – Status quo ante must be restored. (Paras 55, 69 and 70)

(L) Constitution of India – Articles 14 and 21 – Rule of Law – In a democracy where rule of law is its essence, it has to be preserved and enforced particularly by courts of law – Compassion and sympathy have no role to play where rule of law is required to be enforced – If rule of law has to be preserved as essence of democracy, it is duty of courts to enforce the same without fear or favour, affection or ill-will – It is primary duty and highest responsibility of this Court to correct arbitrary orders at the earliest and maintain confidence of litigant public in purity of the fountain of justice and thereby respect rule of law – Deprivation of liberty’ vis-à-vis respondent Nos.3 to 13 herein is justified. (Paras 64 and 69)

Facts of the case:

These writ petitions have been filed assailing the Orders dated 10.08.2022, granting remission and early release of respondent Nos.3 to 13 in Writ Petition (Crl.) No.491 of 2022 (which petition shall be considered to be the lead petition), who were all convicted, having been found guilty of committing heinous crimes during the large-scale riots in Gujarat on 28.02.2002 and a few days thereafter which occurred in the aftermath of the burning of train incident in Godhra in the State of Gujarat on 27.02.2002.

Whatever faith she may follow or any creed she may belong to. Can heinous crimes, inter alia, against women permit remission of the convicts by a reduction in their sentence and by granting them liberty? These are the issues which arise in these writ petitions.

Findings of Court:

In instant case rule of law must prevail. If ultimately rule of law is to prevail and impugned orders of remission are set-aside by us, then the natural consequences must follow. Therefore, respondent Nos.3 to 13 are directed to report to the concerned jail authorities within two weeks from today.

Result : Writ Petition (Crl.) No.491 of 2022 allowed.