'Centre gave consent for early release of convicts in Bilkis Bano case': Lawyer ahead of SC hearing

Under Section 435 of the Code Of Criminal Procedure (CrPC), a state government is required to act after consultation with the central government in certain cases.
Convicts of the Bilkis Bano gang rapecase of the 2002 post-Godhra riots, being welcomed as they come out of the Godhra sub-jail. (Photo | PTI)
Convicts of the Bilkis Bano gang rapecase of the 2002 post-Godhra riots, being welcomed as they come out of the Godhra sub-jail. (Photo | PTI)

AHMEDABAD: Senior Supreme Court lawyer Rishi Malhotra on Tuesday said the Centre had given its consent as per rules for the premature release from jail of 11 men convicted in the 2002 case of riot survivor Bilkis Bano's gang-rape and murder of her family members.

During a panel discussion on Mojo Story, a digital news platform, Malhotra, who represents these 11 convicts in the Supreme Court, where their release has been challenged, said the Centre had given its approval as per the Gujarat government's remission policy, under which they were set free after serving more than 15 years in jail.

All of them were awarded life sentences by the trial court.

"Yes, absolutely," replied Malhotra when the panel host asked him if the Centre had given its approval as mandated as per rules for remission of sentence.

"Absolutely. (approval) taken under the section 435 of CrPC. Please record my statement. I am saying this with full responsibility that the Centre government concurrence as required under the law was taken," Malhotra said.

Under Section 435 of the Code Of Criminal Procedure (CrPC), a state government is required to act after consultation with the central government in certain cases.

These include powers conferred by sections 432 and 433 of the CrPC upon the state government to remit or commute a sentence.

The lawyer said, "When both the Centre and the state government would file their affidavits (in the apex court) this (approval) will come on record."

While hearing a plea against the release of the convicts by the Gujarat government in August, the Supreme Court had issued notices to the Centre and the state government last month, seeking their response.

Bilkis Bano was 21 years old and five months pregnant when she was gang-raped while fleeing the riots that broke out in Gujarat after a compartment of the Sabarmati Express was torched by a mob near Godhra station on Febraury 27, 2002.

Her three-year-old daughter was among the seven family members killed in the riots at Randhikpur village in Limkheda taluka of Dahod district on March 3, 2002.

The 11 men convicted in the case walked out of the Godhra sub-jail on August 15 after the Gujarat government allowed their release under its remission policy.

They had completed more than 15 years in jail.

The plea against their release in the apex court has been filed by CPI(M) leader Subhashini Ali, journalist Revathy Laul and activist Roop Rekha Rani.

The Gujarat government had released all the 11 convicts after the SC directed it to consider their plea for relief under the 1992 remission policy.

A special CBI court in Mumbai had on January 21, 2008, sentenced to life imprisonment all the 11 accused in the case for murder and gang-rape.

Their conviction was later upheld by Bombay High Court.

The Supreme Court is scheduled to hear on Friday the two pleas challenging the release of 11 convicts in the 2002 case of Bilkis Bano's gang-rape and murder of her seven family members during the Gujarat riots.

According to the list of businesses uploaded on the apex court website, a bench of justices Ajay Rastogi and B V Nagarathna will hear the pleas filed by CPI(M) leader Subhashini Ali, journalist Revathy Laul and activist Roop Rekha Rani on September 9.

TMC MP Mahua Moitra has also filed a separate plea challenging the grant of remission to the convicts by the Gujarat government.

Earlier on August 25, a bench headed by then Chief Justice N V Ramana (since retired) had issued notices to the Centre and the Gujarat government on the pleas a day before demitting office.

The top court had also asked the petitioners to implead all 11, who have been granted remission, as parties.

Bilkis Bano was 21 years old and five-month 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 11 men convicted in the case walked out free from the Godhra sub-jail on August 15 after the Gujarat government allowed their release under its remission policy.

They had completed more than 15 years in jail.

Deliberating on the issue that has led to a divisive debate on relief in such heinous cases, the court had said the question is whether there was application of mind while considering remission and whether it was within the parameters of law.

"Day in day out, those who are convicted and complete their sentence, they are eligible for remission. What is the exception?" the bench had observed.

Is that sufficient to say they are not entitled for remission, it had asked.

On August 23, the apex court had agreed to consider listing the plea challenging the grant of remission by the state to the life convicts.

The plea referred to the sequence of events of the case recorded in judicial files and said, "It is submitted that on such facts, no right thinking authority applying any test under any extant policy would consider it fit to grant remission to persons who are found to have been involved in the commission of such gruesome acts."

"It is further submitted that it would appear that the constitution of members of the competent authority of the respondent No. 1 (state of Gujarat) also bore allegiance to a political party, and also was sitting MLAs. As such, it would appear that the competent authority was not an authority that was entirely independent, and one that could independently apply its mind to the facts at hand," it said and quoted media reports to buttress its contention.

The apex court had earlier asked the Gujarat government to consider the plea of remission.

TMC MP Mahua Moitra has also filed a separate petition in the Supreme Court against the release of the convicts in the case.

She alleged the remission "completely fails to bolster either social or human justice and does not constitute a valid exercise of the guided discretionary power of the State".

The Trinamool women's wing on Tuesday launched a 48-hour dharna in the city in protest against the release of 11 convicts in the Bilkis Bano gang rape case, calling it "shameful and unacceptable".

The protest leaders condemned the Centre for its alleged lax attitude in dealing with the safety and security of women, including the recent rape of a woman by Border Security Force personnel at Bagda in West Bengal's North 24 Parganas district.

"The law of the country says that when remission is considered for any prisoner those punished for rape and trafficking are not to be considered. We cannot understand how the covicts in the Bilkis Bano case were released. It is shameful and unacceptable," senior TMC leader and state Industry Minister Shashi Panja said.

Slamming the BJP-led governments at the Centre and in Gujarat for not taking any action to put the 11 men back in jail, Panja said, "The women of the country feel unsafe and humiliated by their action".

Referring to the National Crime Records Bureau data, she said New Delhi, whose law and order is under the jurisdiction of the union home ministry, is one of the most unsafe cities in the country for women.

"It is important to note that Delhi Police is under the Union Home Ministry, which has not said a word on the NCRB report," she said.

Speaking at the event, senior TMC leader and state minister Chandrima Bhattacharya lashed out at the Centre over the Bagda rape.

"The BSF is supposed to guard the country's borders, are committing heinous crimes. Will the union home minister seek a report on the incident and punish the BSF personnel accused of raping the woman? Why is he silent on the issue?" she said.

Two BSF personnel were arrested on the charge of raping a woman who was allegedly trying to illegally cross over to Bangladesh from West Bengal in August.

The release of the convicted in the Bilkis Bano incident and rape of a woman by BSF personnel reflects the "hypocrisy" of the BJP government at the Centre which speaks about "nari shakti and women empowerment", Bhattacharya said.

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