Facts and Procedural Background

• Bilkis Yakub Rasool, the Petitioner in Writ Petition (Crl.) No. 491 of 2022 was gang-raped by 12 convicts during the communal riots in Gujarat on February 28, 2002, following the Godhra train burning incident.
• The Petitioner's mother and cousin sister were brutally raped and murdered, and 14 other family members were killed as well.
• Initially, an FIR was filed on 04.03.2002 against the unidentified accused. Thereafter, the investigation agency filed a closure report stating they could not trace the accused. This report was accepted by the Judicial Magistrate on 25.03.2003.
• However, Bilkis Yakub Rasool, the victim and Petitioner, challenged this closure report in Writ Petition (Crl.) No.118 of 2003 before the Supreme Court led to reopening the case and transferred the investigation to the Central Bureau of Investigation (CBI).
• A fresh investigation was conducted, and the CBI filed a chargesheet on 19.04.2004 against 20 individuals who had been accused. Charges of gang rape, murder, and rioting were filed against 12 individuals, including 6 police personnel and 2 doctors.
• The Petitioner filed the transfer petition before the Supreme Court seeking transfer of the trial from the state of Gujarat to a neutral venue; considering it appropriate, the case was transferred to Mumbai via order dated 06.08.2004.
• The Special Judge, Greater Mumbai, convicted 11 of the accused (Respondent no. 3 to 13) on 21.01.2008, sentencing them to life imprisonment for gang rape, murder and 1 police personnel for deliberately recording the FIR incorrectly. However, 5 police officers and 2 doctors were acquitted.
• The convicts and the State filed appeals before the Bombay High Court against the Trial Court's judgment dated 21.01.2008. The convicts challenged their conviction while the State appealed against the acquittal of police officials and doctors.
• The Bombay High Court upheld the convictions of the 11 accused on 04.05.2017 while overturning the acquittals of 5 police officers and 2 doctors. The court criticised the Gujarat police for conducting a dishonest investigation to shield the culprits.
• The Supreme Court rejected the Special Leave Petitions (SLPs) filed by the convicts, thereby upholding their convictions as affirmed by the High Court's judgment dated 04.05.2017.
• The Petitioner in Criminal Appeal Nos. 727-733 of 2019 sought compensation for her suffering. On 23.04.2019, the Supreme Court acknowledged her trauma from the post-Godhra riots and directed the State to pay ₹50 lakhs within 2 weeks, noting she was left orphaned, living as a nomad and dependent on charity.
• Radheshyam Bhagwandas Shah (Respondent no. 3), after serving 14 years, sought premature release before the Gujarat High Court. The High Court ruled that the State of Maharashtra was the appropriate government for this case and directed him to seek remedy within Maharashtra.
• Later, On 01.08.2019, Respondent No.3 sent an application to the Secretary, Department of Home Affairs, Maharashtra, for premature release, citing the Gujarat High Court's 17.07.2019 order allowing him to approach Maharashtra.
• However, the authorities in Maharashtra, including the CBI, the Special CBI Court Superintendent of Police, Dahod and the Office of the Collector and District Magistrate, Dahod, opposed his release, citing the heinous nature of the crimes and the threat posed to the victim’s family.
• Respondent No.3 again sought remission via Criminal Miscellaneous Application No. 1 of 2019 before the Gujarat High Court, but on 13.03.2020, the Court ruled that only the State of Maharashtra had the authority to grant it. The Respondent was granted permission to approach the Bombay High Court, and that order remained unchallenged.
• The Gujarat Jail Advisory Committee reviewed Respondent No.3's case on 20.07.2021. At the same time, the Sessions Judge opposed his early release due to the potential threat to society, whereas other members supported it based on his good conduct and 15 years served.
• On 18.08.2021, the Additional Director General of Police, Gujarat, recommended against the premature release of respondent No.3 based on the opinions of the Jail Advisory Committee and other authorities.
• Respondents Nos. 4 to 13 applied for remission to the Superintendent of Godhra Sub-Jail on February 2021. The CBI and Special Judge (CBI), Greater Mumbai, gave negative opinions, stating that the Maharashtra Government Resolution applied since the trial occurred in Mumbai and mandated an eligibility minimum imprisonment period of 28 years for remission.
• However, the Superintendent of Police and the District Magistrate, Dahod, gave positive opinions about their premature release.
• In the middle of these proceedings, Respondent No.3 filed a Writ Petition (Crl.) No.135 of 2022 in the Supreme Court seeking a mandamus for the State of Gujarat to consider his application for premature release under the 09.07.1992 policy in effect at the time of his crime and conviction.
• The Supreme Court on 13.05.2022 affirmed that the relevant policy at the time of Respondent No.3's conviction was the 09.07.1992 policy issued by the State of Gujarat and directed the State of Gujarat to consider the application for premature release in accordance with this policy.
• After the Court's judgment on 13.05.2022, the Gujarat Jail Advisory Committee recommended remission of Respondent Nos. 3 to 13, noting their good behaviour and substantial years of life remaining.
• After receiving divergent opinions from various authorities, the Ministry of Home Affairs approved the premature release of all 11 convicts, leading to the State of Gujarat issuing impugned orders on 10.08.2022.
• Aggrieved by the decision of the State of Gujarat, the present writ petitions were filed.
  

Cases clubbed with the Present suit

Lead Petition - Writ Petition (Crl.) No. 491 of 2022
Bilkis Yakub Rasool vs. State of Gujarat and Respondent Nos. 3 to 13

This petition filed under Article 32 challenges the 10.08.2022 remission and early release of convicts involved in the Gujarat riots of 2002. The convicts, including Respondent Nos. 3 to 13 were found guilty of gang-raping the Petitioner, who was pregnant, and brutally murdering several members of her family. The Petitioner seeks to quash the remission orders due to the heinous nature of the crimes.

Writ Petition (Crl.) No. 352 of 2022
Dr. Meeran Chadha Borwankar (former woman police officer) vs. State of Gujarat

The Petitioners seek to set aside the remission orders dated 10.08.2022 and request the formulation of guidelines for Jail Advisory Committees to include a composition that reflects the diversity of society. This writ petition emphasises the need for fair representation in decisions involving the remission of convicts.

Writ Petition (Crl.) No. 319 of 2022
Subhashini Ali (former parliamentarian and Vice-President of the All India Democratic Women’s Association), Revati Laul (independent journalist), and Roop Rekha Verma (former Vice-Chancellor of Lucknow University) vs. the State of Gujarat

The petitioners challenge the remission orders dated 10.08.2022. The primary contention is that releasing the convicts undermines justice and violates the principles of fairness and equity, especially given the nature of the crimes.


Writ Petition (Crl.) No. 326 of 2022
Mahua Moitra (Member of Parliament, Krishnanagar constituency, West Bengal) vs. State of Gujarat

Mahua Moitra seeks quashing of the remission orders and requests the framing of guidelines for granting remission. The petitioner argues that remission should be based on equitable and justifiable grounds, preventing the misuse of discretion in granting early release to convicts.


Writ Petition (Crl.) No. 403 of 2022
National Federation of Indian Women (NFIW) vs. State of Gujarat

NFIW, a women-centric organisation established to secure women's rights, sought a writ of mandamus directing the State of Gujarat to revoke the remission granted to the convicts. The Petitioners also demanded the re-arrest of the released convicts and challenged the remission policy dated 09.07.1992, under which the release was granted.


Writ Petition (Crl.) No. 422 of 2022
Asma Shafique Shaikh (lawyer and social activist) vs. State of Gujarat

This writ petition challenged the remission orders dated 10.08.2022 and sought their quashing. The Petitioner, representing social and legal concerns, requested appropriate relief from the court.

Relevant sections:

Indian Penal Code, 1860

• Section 40 - Offence
• Section 42 - Local Law
• Section 63 - Amount of Fine
• Section 70 - Fine leviable within six years, or during imprisonment – Death not to discharge property from liability
• Section 143 - Punisment
• Section 147 - Punishment for Rioting
• Section 302 -Punishment for Murder
• Section 376 - Punishment for Rape
• Sections 217 - Public servant disobeying direction of law with intent to save person from punishment or property from forfeiture
• Section 218 - Public servant framing incorrect record or writing with intent to save person from punishment or property from forfeiture
  
  
  

Code of Criminal Procedure,1973

• Section 30 - Sentence of imprisonment in default of fine.
• Section 432 - Power to suspend or remit sentences.
• Section 433A - Restriction on powers of remission or commutation in certain cases.
• Section 435 - State Government to act after consultation with Central Government in certain cases.