Supreme Court Of India
W.P.(Crl.) No. 491/2022 – D.No. 38741 / 2022
IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION
WRIT PETITION (CRL.) NO.491 OF 2022
BILKIS YAKUB RASOOL …PETITIONER
VERSUS
UNION OF INDIA & OTHERS …RESPONDENTS
Maharastra is the appropriate authority to grant remission to the accused persons.
Dated 08-Jan-2024
The accused persons have undergone 14 years 5 months and 6 days of their sentence
Since all the accused were tried and convicted in Mumbai, i.e., the State of Maharashtra, therefore the state of Maharastra is the appropriate authority to grant remission to the accused persons.
Read the original Judgment
Summary of Conclusions:
56- On the basis of the aforesaid discussion, we arrive at the following summary of conclusions:
a) We hold that the Writ Petition (Crl.) No.491 of 2022 filed under Article 32 of the Constitution before this Court is maintainable and that it was not mandatory for the petitioner therein to have Writ Petition (Crl.) No.491 of 2022 Etc. filed a writ petition under Article 226 of the Constitution before the Gujarat High Court.
b) Since Writ Petition (Crl.) No.491 of 2022 has been filed by one of the victims invoking Article 32 of the Constitution before this Court which has been entertained by us, the question, whether, the writ petitions filed as public interest litigation assailing the impugned orders of remission dated 10.08.2022 are maintainable, is kept open to be raised in any other appropriate case.
c) In view of Section 432 (7) read with Section 432 (1) and (2) of the CrPC, we hold that the Government of the State of Gujarat had no jurisdiction to entertain the prayers seeking remission of respondent Nos.3 to 13 herein as it was not the appropriate Government within the meaning of the aforesaid provisions.
Hence, the orders of remission dated 10.08.2022 made in favour of respondent Nos.3 to 13 herein are illegal, vitiated and therefore, quashed.
d) While holding as above, we also hold that the judgment dated 13.05.2022 passed by this Court is a nullity and is non est in law since the said order was sought by suppression of material facts as well as by misrepresentation of facts (suppressio veri, Writ Petition (Crl.) No.491 of 2022 Etc. suggestio falsi) and therefore, fraudulently obtained at the hands of this Court.
i) Further, the petitioner in Writ Petition (Crl.) No.491 of 2022 not being a party to the said writ proceeding, the same is not binding on her and she is entitled in law to question the orders of remission dated 10.08.2022 from all angles including the correctness of the order dated 13.05.2022.
ii) In addition to the above, the said order, being contrary to the larger bench decisions of this Court, (holding that it is the Government of the State within which the offender is sentenced which is the appropriate Government which can consider an application seeking remission of a sentence) is
per incuriam and is not a binding precedent. Hence, the impugned orders of remission dated 10.08.2022 are quashed on the above grounds.
e) Without prejudice to the aforesaid conclusions, we further hold that the impugned orders of remission dated 10.08.2022 passed by the respondent-State of Gujarat in favour of respondent Nos.3 to 13 are not in accordance with law for the following reasons:
Writ Petition (Crl.) No.491 of 2022 Etc.
i) That the Government of the State of Gujarat had usurped the powers of the State of Maharashtra which only could have considered the applications seeking remission. Hence, the doctrine of usurpation of powers applies in the instant case.
ii) Consequently, the Policy dated 09.07.1992 of the State of Gujarat was not applicable to the case of respondent Nos.3 to 13 herein.
iii) That opinion of the Presiding Judge of the Court before which the conviction of respondent Nos.3
to 13 was made in the instant case i.e. Special Court, Mumbai (Maharashtra) was rendered ineffective by the Government of the State of Gujarat which in any case had no jurisdiction to entertain the plea for remission of respondent Nos.3 to 13 herein. The opinion of the Sessions Judge at Dahod was wholly
without jurisdiction as the same was in breach of sub-section (2) of the Section 432 of the CrPC.
Writ Petition (Crl.) No.491 of 2022 Etc.
iv) That while considering the applications seeking remission, the Jail Advisory Committee, Dahod and the other authorities had lost sight of the fact that respondent Nos.3 to 13 herein had not yet paid the fine ordered by the Special Court, Mumbai which had been confirmed by the Bombay High Court. Ignoring this relevant consideration also vitiated exercise of discretion in the instant case.
56.1. Having declared and held as such, we now move to point No.5. Point No.5: What Order?
57. Respondent Nos.4 to 13, who had made applications to the first respondent-State of Gujarat seeking remission of their sentences, have been granted remission by the impugned orders dated 10.08.2022, while it is not known whether respondent No.3 had made any application to seek remission to the State of Gujarat as the same is not adverted to in the counter affidavit. The application seeking remission by respondent No.3 before the State of Gujarat has not been brought on record as he had filed his
application before the State of Maharashtra. Respondent Nos.3 to13 have been released pursuant to the orders of remission dated Writ Petition (Crl.) No.491 of 2022 Etc. 10.08.2022 and set at liberty.
We have now quashed the orders of remission. Since 10.08.2022, respondent Nos.3 to 13 have been the
beneficiaries of the orders passed by an incompetent authority inasmuch as the impugned orders are not passed by the appropriate Government within the meaning of Section 432 of the CrPC. So long as the said orders impugned were not set-aside, they had carried the stamp of validity and hence till date the impugned orders of remission were deemed to have been valid. Respondent Nos.3 to 13 are out of jail. Since we have quashed the orders of remission, what follows?
58. In our view, the most important constitutional value is personal liberty which is a fundamental right enshrined in Article 21 of our Constitution. It is in fact an inalienable right of man and which can be deprived of or taken away only in accordance with law. That is the quintessence of Article 21. But, this is a case where respondent Nos.3 to 13 have been granted liberty and have been released from imprisonment by virtue of the impugned orders of remission dated 10.08.2022 which we have declared and quashed as wholly without jurisdiction and non est. Having quashed the orders of remission made in favour of respondent Nos.3 to 13, should they be sent back to prison? Whether respondent No.3 to 13 Writ Petition (Crl.) No.491 of 2022 Etc. must have the benefit of their liberty despite obtaining the same from an incompetent authority with the aid of an order of this Court obtained fraudulently and therefore, the same being illegal and carry a stamp of being a nullity and non est in the eye of law? This has been a delicate question for consideration before us.
59. Learned counsel for the petitioner in Writ Petition (Crl.) No.491 of 2022 has vehemently contended that there being failure of rule of law in the instant case, justice would be done by this Court only when respondent Nos.3 to 13 are returned to the prison. They can be granted remission only in accordance with law. On the other hand, respective learned senior counsel and counsel for the respondents Nos.3 to 13 who have appeared have pleaded that they have been enjoying liberty since 10.08.2022 and in spite of there being any error in the orders of remission, although the orders of remission may be quashed, by exercising jurisdiction under Article 142 of the Constitution, these respondents may not be subjected to imprisonment once again and they may remain out of jail as free persons. In other words, their liberty may be protected.
60. We have given our anxious thought to the aforesaid divergent contentions. The primary question that now arises for our consideration is this: when is liberty of a person protected? Article Writ Petition (Crl.) No.491 of 2022 Etc. 21 of the Constitution states that no person shall be deprived of his liberty except in accordance with law. Conversely, we think that a person is entitled to protection of his liberty only in accordance with law. When a person’s liberty cannot be violated in breach of a law, can a person’s liberty be protected even in the face of a breach or violation of law? In other words, should rule of law prevail over personal liberty of a person or vice-versa? Further, should this Court weigh in favour of a person’s freedom and liberty even when it has been established that the same was granted in violation of law? Should the scales of justice tilt against rule of law?
In upholding rule of law are we depriving respondent Nos.3 to 13 their right to freedom and liberty? We wish to make it clear that only when rule of law prevails will liberty and all other fundamental rights would prevail under our Constitution including the right to equality and equal protection of law as enshrined in Article 14 thereof. In other words, whether liberty of a person would have any meaning at all under our Constitution in the absence of rule of law or the same being ignored or turned a blind eye? Can rule of law surrender to liberty earned as a consequence of its breach? Can breach of rule of law be ignored in order to protect a person’s liberty that he is not entitled to?
Writ Petition (Crl.) No.491 of 2022 Etc.
61. Before we proceed further, we wish to reiterate what this Court has spoken on the concept of rule of law through its various judgments.
62. Rule of law means wherever and whenever the State fails to perform its duties, the Court would step in to ensure that the rule of law prevails over the abuse of the process of law. Such abuse may result from, inter alia, inaction or even arbitrary action of protecting the true offenders or failure by different authorities in discharging statutory or other obligations in consonance with the procedural and penal statutes. Breach of the rule of law, amounts to negation of equality under Article 14 of the Constitution.
63. More importantly, rule of law means, no one, howsoever high or low, is above the law; it is the basic rule of governance and democratic polity. It is only through the courts that rule of law unfolds its contours and establishes its concept. The concept of rule of law is closely intertwined with adjudication by courts of law and also with the consequences of decisions taken by courts. Therefore, the judiciary has to carry out its obligations effectively and true to the spirit with which it is sacredly entrusted the task and always in favour of rule of law. There can be no rule of law if there is no equality before the law; and rule of law and equality before the law Writ Petition (Crl.) No.491 of 2022 Etc. would be empty words if their violation is not a matter of judicial scrutiny or judicial review and relief and all these features would
lose their significance if the courts don’t step in to enforce the rule of law. Thus, the judiciary is the guardian of the rule of law and the central pillar of a democratic State. Therefore, the judiciary has to
perform its duties and function effectively and remain true to the spirit with which they are sacredly entrusted to it.
In our view, this Court must be a beacon in upholding rule of law failing which it would give rise to an impression that this Court is not serious about rule of law and, therefore, all Courts in the country could apply it selectively and thereby lead to a situation where the judiciary is unmindful of rule of law. This would result in a dangerous state of affairs in our democracy and democratic polity.
64. Further, 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 the rule of law has to be preserved as the essence of democracy, it is the duty of the courts to enforce the same without fear or favour, affection or ill-will.
Writ Petition (Crl.) No.491 of 2022 Etc.
65. The manner of functioning of the court in accord with the rule of law has to be dispassionate, objective and analytical. Thus, everyone within the framework of the rule of law must accept the
system, render due obedience to orders made and in the event of failure of compliance, the rod of justice must descend down to punish. It is mainly through the power of judicial review conferred on an independent institutional authority such as the High Court or the Supreme Court that the rule of law is maintained and every organ of the State is kept within the limits of the law.
Thus, those concerned with the rule of law must remain unmindful and unruffled by the ripples caused by it. Rule of law does not mean protection to a fortunate few. The very existence of the rule of law and the fear of being brought to book operates as a deterrent to those who have no scruples in killing others if it suits their ends. In the words of Krishna Iyer, J., “the finest hour of the rule of law is when law disciplines life and matches promise with performance”. In ADM, Jabalpur vs. Shivakant Shukla, H.R. Khanna, J. in his
dissenting judgment said, “rule of law is the antithesis of arbitrariness”.
66. In this context, it would also be useful to refer to the notion of justice in the present case. It is said that justice should remain loyal to the rule of law. In our view, justice cannot be done without Writ Petition (Crl.) No.491 of 2022 Etc. adherence to rule of law. This Court has observed “the concept of “justice” encompasses not just the rights of the convict, but also of the victims of crime as well as of the law abiding section of society who look towards the courts as vital instruments for preservation of peace and the curtailment or containment of crime by punishing those who transgress the law. If the convicts can circumvent the consequences of their conviction, peace, tranquility and harmony in society will be reduced to chimera.” (vide Surya Baksh Singh vs. State of UP, (2014) 14 SCC 222)
67. This Court has further observed that the principle of justice is an inbuilt requirement of the justice delivery system and indulgence and laxity on the part of the law courts would be an unauthorized exercise of jurisdiction and thereby, put a premium on illegal acts. Courts have to be mindful of not only the spelling of the word “justice” but also the content of the concept. Courts have to dispense justice and not justice being dispensed with. In fact, the strength and authority of courts in India are because they are
involved in dispensing justice. It should be their life aim.
68. The faith of the people in the efficacy of law is the saviour and succour for the sustenance of the rule of law. Justice is supreme and justice ought to be beneficial for the society. Law courts exist Writ Petition (Crl.) No.491 of 2022 Etc. for the society and ought to rise to the occasion to do the needful in the matter. Respect for law is one of the cardinal principles for an effective operation of the Constitution, law and the popular Government. The faith of the people is the source to invigorate justice intertwined with the efficacy of law. Therefore, it is the primary duty and the highest responsibility of this Court to correct arbitrary orders at the earliest and maintain the confidence of the litigant public in the purity of the fountain of justice and thereby respect the rule of law.
69. In the same vein, we say that Article 142 of the Constitution cannot be invoked by us in favour of respondent Nos.3 to 13 to allow them to remain out of jail as that would be an instance of this Court’s imprimatur to ignore rule of law and instead aid persons who are beneficiaries of orders which in our view, are null and void and therefore non est in the eye of law. Further, we cannot be unmindful of the conduct of respondent Nos.3 to 13, particularly respondent No.3 who has abused the process of law and the court in obtaining remission. In such a situation, arguments with an emotional appeal though may sound attractive become hollow and without substance when placed in juxtaposition with our reasoning
on the facts and circumstances of this case.
Therefore, in complying Writ Petition (Crl.) No.491 of 2022 Etc. with the principles of rule of law which encompasses the principle of equal protection of law as enshrined in Article 14 of the Constitution, we hold that ‘deprivation of liberty’ vis-à-vis respondent Nos.3 to 13 herein is justified in as much as the said
respondents have erroneously and contrary to law been set at liberty.
One cannot lose sight of the fact that the said respondents were all in prison for a little over fourteen years (with liberal paroles and furloughs granted to them from time to time). They had lost their right to liberty once they were convicted and were imprisoned. But, they were released pursuant to the impugned remission orders which have been quashed by us. Consequently, the status quo ante must be restored. We say so for another reason in the event respondent Nos.3 to 13 are inclined to seek remission in accordance with law, they have to be in prison as they cannot seek remission when on bail or outside the jail. Therefore, for these reasons we hold that the plea of ‘protection of the liberty’ of respondent Nos.3 to 13 cannot be accepted by us.
70. We wish to emphasize that in the instant case rule of law must prevail. If ultimately rule of law is to prevail and the impugned orders of remission are set-aside by us, then the natural consequences must follow. Therefore, respondent Nos.3 to 13 are Writ Petition (Crl.) No.491 of 2022 Etc. directed to report to the concerned jail authorities within two weeks from today.
Conclusion:
71. Consequently, we pass the following orders:
a. Writ Petition (Crl.) No.491 of 2022 is allowed in the aforesaid terms.
b. Other Writ Petitions stand disposed of.
c. Pending applications, if any, stand disposed of.
72. Before parting, we place on record our appreciation of all learned senior counsel, learned ASG and learned counsel appearing for the respective parties for their effective assistance in the matter.
(B.V. NAGARATHNA)
(UJJAL BHUYAN)
New Delhi;
January 08, 2024.
