Monday, Dec 05, 2022

Bilkis Bano Case: Convict Questions Maintainability Of Plea In Supreme Court Challenging Remission

Bilkis Bano Case: Convict Questions Maintainability Of Plea In Supreme Court Challenging Remission

Multiple petitions have been filed in the Supreme Court against the release of convicted of gangraping Bilkis Bano and killing her family members.

Protest against convicts of Bilkis Banos case
Protest against convicts of Bilkis Banos case Photo: PTI/Bikas Das

One of the convicts in the Bilkis Bano gangrape case has challenged the maintainability of petitions in the Supreme Court against his and fellow convicts' remission of sentence.

Eleven men were convicted and sentenced to life for raping Bano and murdering seven of her family members. All of them were released on August 15 after the Government of Gujarat remitted their sentence. The remission of their sentence drew widespread condemnation from activists and politicians. 

Petitions have been filed against the remission in the Supreme Court, following which Radhey Shyam, one of the released convicts, has questioned the locus standi of the petitioners, saying they are "complete strangers" in the matter. 

Shyam said that none of the petitioners are related to the case and are either political activists or "third party stranger". questioning the maintainability of the petitions, he said if such petitions are entertained by the court, it would be an open invitation for any member of the public to "jump in any criminal matter before any court of law".

"That at the very outset the answering respondent seriously questions the locus as well as maintainability of the instant writ petition which has been filed by a political activist or in other words, a complete stranger to the instant case," said Shyam.

Shyam pointed out that the in the PIL questioning his release, petitioner number one, CPI(M) leader Subhashini Ali, claims to be a former parliamentarian and Vice President of the All India Democratic Women’s Association. He noted that petitioner no 2, Revati Laul,  claims to be an independent journalist, whereas petitioner no 3, Roop Rekha Verma, claims to be a former Vice Chancellor of Lucknow University.

Shyam's counter-affidavit said, "That with great respect and humility, the answering respondent submits that if such types of third party petitions are entertained by this court, it would not only unsettle the settled position of law but would also open flood gates and would be an open invitation for any member of the public to jump in any criminal matter before any court of law."

Shyam said that the Supreme Court has categorically held in earlier cases that a total stranger in a criminal case cannot be permitted to question the correctness of a decision and if that was to be permitted, any and every person could challenge a criminal prosecution/ proceedings recorded day in and day out by courts even if the person convicted does not desire to do so and is inclined to acquiesce in the decision.

"Thus, it was further held that unless an aggrieved party was under some disability recognised by law, it would be unsafe and hazardous to allow any third party to question the decision against him," said Shyam in his affidavit filed through advocate Rishi Malhotra.

Shyam said that since the 1992 verdict in "Janata Dal versus HS Chowdhary", a view which was reiterated and followed in "Subramanian Swamy versus Raju" in 2013, the top court has consistently held in clear terms that a third party who is a total stranger to the prosecution has no ‘locus standi’ in criminal matters and has no right whatsoever in filing a petition under Article 32 of the Constitution.

The affidavit said that in this present writ petition, the petitioners seek to challenge the remission order of the State of Gujarat whereby 11 accused persons including the answering respondent were released.

"In Para 1B the writ petitioner has pleaded that she has no personal interest in the matter and does not stand to gain anything from the filing of the same. It is further submitted that the writ petition has been filed purely in the public interest and according to the petitioner the release of such persons has shocked the consciousness of the society which has prompted the petitioner to file this Public Interest Litigation," it said.

The affidavit said that interestingly enough, neither the state nor the victim nor even the complainant has approached this Court and thus, it is respectfully submitted that if such cases are sought to be entertained by this court, "a settled position of law would certainly become an unsettled position of law".

On March 3, 2002, Bano was fleeing with his family, including her toddler daugher during the 2002 Gujarat Riots when they were attacked by 20-30 armed people in a field. Bano was gangraped while seven members of her family were killed. The Supreme Court ordered a Central Bureau of Investigation (CBI) probe into the incident after public outrage emerged. The Special CBI court convicted the accused and sentenced them to life in 2008. Their conviction was later upheld by the Bombay High Court and the Supreme Court.

After being in jail for over 15 years, the convicts approached the Supreme Court seeking release. The Supreme Court asked the Gujarat government to look into their remission according to the policy that existed at the time of their conviction. Following the SC order, the Gujarat government formed a panel to look into the remission, which recommended their release. Following the recommendation, the convicts' sentences were remitted and they were released.

(With PTI inputs)