Bilkis Yakub Rasool vs Union of India 2024 INSC 24 :: [2024] 1 S.C.R. 743 – S 432 CrPC – Remission – Article 32 Constitution

Code Of Criminal Procedure, 1973; Section 432 –In a case where the trial has been transferred by this Court from a court of competent jurisdiction of a State to a court in another State, Government of the State within which the offender was sentenced is the appropriate Government which has the jurisdiction as well as competency to pass an order of remission under Section 432 of the CrPC. Therefore, it is not the Government of the State within whose territory the offence occurred or the convict is imprisoned which can assume the power of remission. (Para 33.6)

Code Of Criminal Procedure, 1973; Section 432(2) -The expression “may” has to be interpreted as “shall” and as a mandatory requirement under sub-section (2) of Section 432 of the CrPC- It cannot be held that the expression “may” in the said provision is not mandatory nor can it be left to the whims and fancies of the appropriate Government either to seek or not to seek the opinion of the Presiding Judge or the Court before which the conviction had taken place.it cannot be held that the expression “may” in the said provision is not mandatory nor can it be left to the whims and fancies of the appropriate Government either to seek or not to seek the opinion of the Presiding Judge or the Court before which the conviction had taken place. (Para 52)

Code Of Criminal Procedure, 1973; Section 432 – Factors that must be taken into account while entertaining an application for remission under the provisions of the CrPC, which are however not exhaustive – (a) The application for remission under Section 432 of the CrPC could be only before the Government of the State within whose territorial jurisdiction the applicant was convicted (appropriate Government) and not before any other Government within whose territorial jurisdiction the applicant may have been transferred on conviction or where the offence has occurred. (b) A consideration for remission must be by way of an application under Section 432 of the CrPC which has to be made by the convict or on his behalf. In the first instance whether there is compliance of Section 433A of the CrPC must be noted inasmuch as a person serving a life sentence cannot seek remission unless fourteen years of imprisonment has been completed. (c) The guidelines under Section 432(2) with regard to the opinion to be sought from the Presiding Judge of the Court which had convicted the applicant must be complied with mandatorily. While doing so it is necessary to follow the requirements of the said Section which are highlighted by us, namely i) the opinion must state as to whether the application for remission should be granted or refused and for either of the said opinions, the reasons must be stated; (ii) the reasons must have a bearing on the facts and circumstances of the case; (iii)the opinion must have a nexus to the record of the trial or of such record thereof as exists; (iv) the Presiding Judge of the Court before or by which the conviction was had or confirmed, must also forward along with the statement of such opinion granting or refusing remission, a certified copy of the record of the trial or of such record thereof as exists. (d) The policy of remission applicable would therefore be the Policy of the State which is the appropriate Government and which has the jurisdiction to consider that application. The policy of remission applicable at the time of the conviction could apply and only if for any reason, the said policy cannot be made applicable a more benevolent policy, if in vogue, could apply. (e) While considering an application for remission, there cannot be any abuse of discretion. In this regard, it is necessary to bear in mind the following aspects as mentioned in Laxman Naskar, namely, – (i) Whether the offence is an individual act of crime without affecting the society at large? (ii) Whether there is any chance of future recurrence of committing crime? (iii) Whether the convict has lost his potentiality in committing crime? (iv) Whether there is any fruitful purpose of confining this convict any more? (v) Socio-economic condition of the convict’s family. (f) There has also to be consultation in accordance with Section 435 of the CrPC wherever the same is necessitated. (g) The Jail Advisory Committee which has to consider the application for remission may not have the District Judge as a Member inasmuch as the District Judge, being a Judicial Officer may coincidently be the very judge who may have to render an opinion independently in terms of sub-section (2) of Section 432 of the CrPC. (h) Reasons for grant or refusal of remission should be clearly delineated in the order by passing a speaking order. (i) When an application for remission is granted under the provisions of the Constitution, the following among other tests may apply to consider its legality by way of judicial review of the same. (i) that the order has been passed without application of mind; (ii) that the order is mala fide; (iii)that the order has been passed on extraneous or wholly irrelevant considerations; (iv) that relevant materials have been kept out of consideration; (v) that the order suffers from arbitrariness.

Constitution of India, 1950; Article 32- The right to file a petition under Article 32 of the Constitution is also a Fundamental Right. The object and purpose of Article 32 of the Constitution which is also recognised to be the “soul of the Constitution” and which is a Fundamental Right in itself is for the enforcement of other Fundamental Rights in Part-III of the Constitution – The aforesaid constitutional remedy is also to enforce the goals enshrined in the Preamble of the Constitution, which speak of justice, liberty, equality and fraternity. (Para 22.2)

Constitution of India, 1950; Article 32- Question regarding maintainability of a PIL challenging orders of remission is kept open to be considered in any other appropriate case. (Para 27)

Code Of Criminal Procedure, 1973; Section 432 –435 -Remission : Scope & Ambit discussed (Para 29-32)

Fraud – Fraud vitiates everything – fraud avoids all judicial acts – any litigant who is guilty of inhibition before the Court should not bear the fruit and benefit of the court’s orders. This Court has also held that fraud is an act of deliberation with a desir e to secure something which is otherwise not due. Fraud is practiced with an intention to secure undue advantage. Thus, an act of fraud on courts must be viewed seriously. – fraud can be established when a false representation has been made (i) knowingly, or (ii) without belief in its truth, or (iii), recklessly, being careless about whether it be true or false. While suppression of a material document would amount to a fraud on the Court, suppression of material facts vital to the decision to be rendered by a court of law is equally serious. Thus, once it is held that there was a fraud in judicial proceedings all advantages gained as a result of it have to be withdrawn. In such an eventuality, doctrine of res judicata or doctrine of binding precedent would not be attracted since an order obtained by fraud is non est in the eye of law. (Para 43)

Doctrines of per incurium and sub silentio -Although it is the ratio decidendi which is a precedent and not the final order in the judgment, however, there are certain exceptions to the rule of precedents which are expressed by the doctrines of per incurium and sub silentio. Incuria legally means carelessness and per incurium may be equated with per ignorantium. If a judgment is rendered in ignorantium of a statute or a binding authority, it becomes a decision per incurium. Thus, a decision rendered by ignorance of a previous binding decision of its own or of a court of coordinate or higher jurisdiction or in ignorance of the terms of a statute or of a rule having the force of law is per incurium. Such a per incurium decision would not have a precedential value. If a decision has been rendered per in curium, it cannot be said that it lays down good law, even if it has not been expressly overruled – a decision per incurium is not binding – A decision is passed sub-silentio when the particular point of law in a decision is not perceived by the court or not present to its mind or is not consciously determined by the court and it does not form part of the ratio decidendi it is not binding. (Para 44)

Constitution of India, 1950 ; Article 21 -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. (Para 58)

Constitution of India, 1950 ; Article 32 – An order of a High Court cannot be set aside in a proceeding under Article 32 of the Constitution – Referred to Naresh Shridhar Mirajkar vs. State of Maharashtra, AIR 1967 SC 1. (Para 39,44)

Rule of Law – 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 – 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. (Para 61-66)

Justice – 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. (Para 67)