One of the eleven convicts in Bilkis Bano gang rape and murder of her family members case has moved the Supreme Court, stating that the January 8, 2024, judgment quashing the August 10, 2022, Gujarat government’s order granting them reemission of sentence and directing 11 convicts to surrender before the concerned jail autoroutes, was judicially improper as two co-ordinate benches of strength of two judges each took “diametrically” opposite view in the issue of their premature release.

The convict Radheshyam Bhagwandas Shah in his petition has contended that “An anomalous situation has arisen in the instant matter wherein two different Coordinate Benches sitting in same combination of two Judges Bench have taken diametrically opposite views on the very same issue of premature release of the petitioner as well as which policy of the State Government would be applicable.”

The petitioner Radheshyam Bhagwandas Shah has stated that a two-judge bench comprising Justice Ajay Rastogi (since retired) and Justice Vikram Nath on May 13, 2022, had directed the Gujarat government to consider his application for premature release in terms of its July 8, 1992 remission policy, while other bench comprising Justice B.V. Nagarathna and Justice Ujjal Bhuyan by its January 8, 2024, judgment took a completely different position holding that Maharashtra government would be the appropriate government for considering the application for premature release.

Referring to an earlier constitutions bench judgment, the petitioner Shah has contended that if the latter two judge bench differed with the position taken by the earlier two judge bench, then the matter ought to have been referred to a larger bench.

“…, a fundamental issue arises for consideration as to whether a subsequent Co-ordinate Bench can be set aside … Judgment rendered by its earlier Co-ordinate Bench and pass contradictory orders/judgments overruling its earlier view or the proper course would have been to refer the matter to a larger Bench in case it felt that the earlier Judgment was passed in wrong appreciation of law and facts,” says the petition by Radheshyam Bhagwandas Shah.

A bench of Justice BV Nagarathna and Justice Ujjal Bhuyan on January 8, 2024, while quashing the August 10, 2022, Gujarat government’s order granting reemission of sentence and directing 11 convicts in Bilkis Bano case had ruled that it was not the Gujarat government but the Maharashtra government that was the appropriate government for the considering the application for premature release of the convicts.

The January 8 judgment by Justice Nagarathna had said that the the May 13, 2022, judgment of the top court, that formed the basis for the grant of remission to 11 convicts by the Gujarat government, was obtained by one of the convicts Radhedshyam Bhegwandas Shah alias Lala Vakil by “scrumptiously” approaching the top court in a writ jurisdiction and “committed fraud on this Court by misrepresenting” August 5, 2013, Bombay High Court judgment/order.

“,…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, suggestio falsi) and therefore, fraudulently obtained at the hands of this Court,” the judgment said.