A convict in the Bilkis Bano gangrape case has questioned the locus standi of the petitioners who have challenged in the Supreme Court the remission given to him and 10 other convicts in the case, saying they are "complete strangers" in the matter.
In his counter-affidavit, Radhey Shyam, who was recently released by the Gujarat government on remission, said that none of the petitioners are related to the case and are either political activists or "third party stranger".
Questioning the maintainability of the petition, he said if such petitions are entertained by the court, it would be an open invitation for any member of the public to "jump in any criminal matter before any court of law".
"That at the very outset the answering respondent seriously questions the locus as well as maintainability of the instant writ petition which has been filed by a political activist or in other words, a complete stranger to the instant case," he said.
He pointed out that the in the PIL questioning his release petitioner number one, Communist Party of India-Marxist leader Subhashini Ali, claims to be a former parliamentarian and vice president of the All India Democratic Women's Association,
He noted that petitioner no 2, Revati Laul, claims to be an independent journalist, whereas petitioner no 3, Roop Rekha Verma, claims to be a former Vice Chancellor, Lucknow University.
The affidavit said, "That with great respect and humility, the answering respondent submits that if such types of third party petitions are entertained by this court, it would not only unsettle the settled position of law but would also open flood gates and would be an open invitation for any member of the public to jump in any criminal matter before any court of law".
Shyam said that the top court has categorically held in earlier cases that a total stranger in a criminal case cannot be permitted to question the correctness of a decision and if that was to be permitted, any and every person could challenge a criminal prosecution/ proceedings recorded day in and day out by courts even if the person convicted does not desire to do so and is inclined to acquiesce in the decision.
"Thus, it was further held that unless an aggrieved party was under some disability recognised by law, it would be unsafe and hazardous to allow any third party to question the decision against him," he said in his affidavit filed through advocate Rishi Malhotra.
He said that since the 1992 verdict in "Janata Dal versus HS Chowdhary", a view which was reiterated and followed in "Subramanian Swamy versus Raju" in 2013, the top court has consistently held in clear terms that a third party who is a total stranger to the prosecution has no ‘locus standi' in criminal matters and has no right whatsoever in filing a petition under Article 32 of the Constitution.
“Accordingly, this court while considering the fact that the conviction in this present case by the trial court had occurred in the year 2008 and by that time the State of Gujarat's premature policy dated July 9, 1992 was in operation, the State Government was directed to consider the application for premature release in terms of the policy dated July 9, 1992," it said.
The affidavit said that in this present writ petition, the petitioners seek to challenge the remission order of the State of Gujarat whereby 11 accused persons including the answering respondent were released.
“In Para 1B the writ petitioner has pleaded that she has no personal interest in the matter and does not stand to gain anything from the filing of the same. It is further submitted that the writ petition has been filed purely in the public interest and according to the petitioner the release of such persons has shocked the consciousness of the society which has prompted the petitioner to file this Public Interest Litigation", it said.
The affidavit said that interestingly enough, neither the State nor the victim nor even the complainant has approached this court and thus, it is respectfully submitted that if such cases are sought to be entertained by this court, "a settled position of law would certainly become an unsettled position of law".
The remission and consequent release of 11 convicts on August 15 this year from Godhra sub-jail under the Gujarat government's remission policy has sparked a debate on the issue of such relief in heinous cases. The convicts had completed more than 15 years in jail.
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 11 convicted persons, who have been granted remission, as parties in the matter.
Trinamool Congress 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 Central Bureau of Investigation 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.