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SC order direction regarding early release states remission of the sentence was as per July 1992 policy made their way

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The Supreme Court’s order directing the Gujarat government to consider the remission of sentence as per the July 1992 policy paved the way for the premature release of 11 convicts in the 2002 Bilkis Bano case, lawyers said on Tuesday.

As per the current policy formulated in 2014, a person convicted for both gangrape and murder can not be released prematurely, but the 1992 policy had no such bar, a lawyer pointed out.

The BJP government in the state has come under fire for the premature release of 11 men sentenced to life imprisonment for the gangrape of Bilkis Bano and the murder of seven members of her family during the 2002 post-Godhra Gujarat riots.

The convicted men walked out of the Godhra sub-jail on Monday. One of them, Radheshyam Shah, had moved the Supreme Court seeking a direction to the Gujarat government to consider his application for premature release as per the government resolution or order dated July 9, 1992, said Godhra-based lawyer Parimal Pathak who represented some of the convicts.

This facilitated their release, he said. Had the government been asked to consider their pleas as per the current remission policy, their release would not have been possible, said advocate Mihir Joshi, another lawyer.

“The Supreme Court said that the policy at the time of conviction (2008) should be taken into account. Also, the apex court relied on an earlier judgement saying that the policy of the state where the crime was committed should be applied. These are the two things that have been taken into consideration,” Joshi said.

While the crime in this case took place in Gujarat, the trial had been transferred to Maharashtra. “Had the government applied today’s policy, they would not have been released,” advocate Joshi added.

The state government’s order of July 8, 1992 did not mention any classification of crime while deciding on remission pleas. A prisoner sentenced for life should have completed 14 years in jail to be eligible for remission, said advocate Pathak, adding that the opinion of the Inspector General of Prisons (IGP), District Magistrate, Jail Superintendent and an advisory board committee is also taken into consideration, “Relying on its earlier judgment, the Supreme Court said in its order dated May 13, 2022, that the policy which was existing on the date of conviction should be taken into account,” said advocate Joshi.

Hence the 1992 policy will apply here, not the latest one formulated in 2014, he said. Advocate P S Champaneri said the the current policy bars the release of a convict who has committed both gang-rape and murder. “It is the usual policy of the government to exercise the power of remission on August 15, January 26, and October 2, the birth anniversary of Mahatma Gandhi….As per the existing policy, a convict who has committed both gang rape and murder cannot be released,” he said.

In its judgment dated May 13, 2022, the SC bench of Justices Ajay Rastogi and Vikram Nath had said that in this case after the conclusion of trial and passing of judgment, all further proceedings have to be considered “in terms of the policy which is applicable in the State of Gujarat where the crime was committed and not the State where the trial stands transferred and concluded for exceptional reasons under the orders of this court.”

The apex court then directed the respondents (state government) to consider the application of the petitioner for premature release “in terms of its policy dated 9th July, 1992.” A special CBI court in Mumbai had on January 21, 2008, sentenced the eleven accused to life imprisonment. In its 2018 order upholding the conviction of the accused persons, the Bombay High Court also set aside the acquittal of seven others.

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