Bilkis Bano gang rape case: Petitioners challenging bail of 11 convicts are 'interloper', Gujarat govt tells SC

New Delhi: The Gujarat government on Monday told the Supreme Court that petitioners challenging the remission given to 11 convicts in the Bilkis Bano gang rape case are nothing but an "interloper" and a "busybody". It also said that since the investigation in the case was carried out by the CBI, it had obtained "suitable orders" for the grant of remission of the convicts from the Centre. The state government filed its reply on a PIL filed by CPI(M) leader Subhashini Ali, Revati Laul, an independent journalist, and Roop Rekha Verma, who is a former vice chancellor of Lucknow University.

The affidavit filed by Mayursinh Metubha Vaghela, an under-secretary in the home department of the Gujarat government said, "I respectfully state and submit that a bare perusal of the circumstances in which the present petition is filed manifest that the petitioner is not an aggrieved person but a mere interloper, who has invoked Articles 32 jurisdiction vested with this court under the Constitution of India, for extraneous purpose".

Referring to the 1976 verdict of the apex court, the state government said that a "person aggrieved" should be one who has the personal and individual right in the subject matter and that there is an infringement of the said legal right or prejudice to some legal interest.

It said that to invoke the extraordinary jurisdiction of this court and to seek a writ under Article 32 of the Constitution, it is clear that the person has to be a "person aggrieved", meaning the decision of the authority ought to be materially averse to the said person.

"In the present case, there is not even a whisper in the pleadings as to how the petitioner is aggrieved by the order passed by the respondent granting remission to the 11 convicts who have already suffered incarceration for more than 14 years. Thus, on the ground also the present petition is liable to be dismissed," it said.

The affidavit said that the petitioner being a "third-party stranger", has no locus to challenge the remission orders passed by the competent authority as per applicable law in the instant case under the "garb of PIL".

"It is submitted that it is well settled that a PIL is not maintainable in a criminal matter. The petitioner is in no way connected to the proceedings which either convicted the accused in question nor with the proceedings which culminated in grant of remission to the convicts. Thus, a petition at the instance of a mere busybody which has political machinations is liable to be dismissed," it said.

The state government said that like a third party stranger either under the provisions of the CrPC or under any other statute is precluded to question the correctness of the grant or refusal of "sanction for prosecution or the conviction and sentence imposed by the court after a regular trial, similarly a third party stranger is precluded from questioning a remission order passed by the State".

It said that the petitioner in the PIL, who is admittedly a political functionary, has not even pleaded that how she has the locus to see a writ to quash the remission order of the 11 convicts in the case.

"The petitioner has nowhere in the writ petition has pleaded as to how her fundamental rights have been abridged and as to how she is aggrieved by the action of the state government. The mandatory pleadings of locus and infringement of fundamental rights is conspicuously missing from the writ petition", it said.

The state government said that its bonafide belief that the present petition is nothing but an abuse of PIL jurisdiction of this court and is motivated by "political intrigues and machinations".

The state further gave factual details of the 11 convicts and said that it has issued a circular in 1992 for early release of the prisoners, who have completed 14-years of imprisonment and were sentenced to life imprisonment.

It gave the procedure which had been adopted under 1992 circular and said, "The state government has considered the cases of all the 11 prisoners as per the policy of 1992 and remission were granted on August 10, 2022. It is pertinent to note that the remission was not granted under the circular governing grant of remission to prisoners as per the celebrations of "Azadi Ka Amrit Mahotsav".

On September 25, a convict Radhey Shyam has also questioned the locus standi of the petitioners challenging the remission given to him and the 10 other convicts in the case, saying they are "complete strangers" in the matter.

On August 25, the top court had sought responses from the Centre and the Gujarat government to the petition challenging the remission granted to the 11 convicts in the case.

It had asked the petitioners to implead the convicted persons, who have been granted remission, as parties in the matter.

TMC MP Mahua Moitra has also filed a separate plea in the top court challenging the grant of remission.

Bilkis Bano was 21 years old and five months pregnant when she was gang raped while fleeing the riots that broke out after the Godhra train burning incident. Her three-year-old daughter was among the seven family members killed.

The investigation in the case was handed over to the CBI and the trial was transferred to a Maharashtra court by the Supreme Court.

A special CBI court in Mumbai had on January 21, 2008, sentenced the 11 to life imprisonment on charges of gang rape of Bilkis Bano and murder of seven members of her family.

Their conviction was later upheld by the Bombay High Court and the Supreme Court.