Heard the learned senior counsel appearing for both
the sides at length.
It is a fact that the conviction of the petitioner
has been confirmed by this Court and the Review Petition
as well as the Curative Petition filed by the petitioner
have also been dismissed by this Court. Moreover, His Excellency Hon'ble The President of India and His Excellency The Governor of Maharashtra have also
rejected applications for pardon made by the petitioner,
possibly because of the gravity of the offence committed
by the petitioner.
It has been submitted by the learned counsel
appearing for the petitioner that one more application
made to His Excellency The Governor of Maharashtra is
still pending.
If it is so, it would be open to His Excellency The
Governor of Maharashtra to dispose of the said
application before the date on which the sentence is to
be executed, if His Excellency wants to favour the
petitioner.
Submissions made about the Curative Petition do not
appeal to me as they are irrelevant and there is no
substance in them.
In these circumstances, the Writ Petition is
dismissed.
WRIT PETITION (CRIMINAL) No. 129 OF 2015
YAKUB ABDUL RAZAK MEMON Petitioner(s)
STATE OF MAHARASHTRA, THR. THE SECRETARY, HOME DEPARTMENT AND ORS. Respondent(s)
I regret my inability to agree with my learned
brother.
During the course of admission hearing of the
petition under Article 32 of the Constitution of India,
a question arose as to whether the Curative Petition in
this case has been decided in accordance with law. The matter was partly heard yesterday and the arguments were deferred for today on this issue.
Heard Mr. Raju Ramachandran, Mr. T.R.Andhyarujina
and Mr. Anand Grover, learned senior counsel and
Mr.Mukul Rohtagi, learned Attorney General, at length.
Article 21 of the Constitution of India guarantees
life to a person and the person shall be deprived of his
life only in accordance with the procedure established
by law. The Curative Petition in Order XLVIII of the
Supreme Court Rules, 2013 is one procedure regarding the
remedy available to a person even after the Review
Petition is dismissed.
The synopsis portion of the Curative Petition reads
as follows :-
“The present Curative Petition under
Article 142 of the Constitution of India
arises in an exceptional case as grave
injustice has been caused to the
petitioner whereby his fundamental rights
as guaranteed to him under Articles 14
and 21 of the Constitution of India have
been completely violated. Hence, the
petitioner most humbly beseeches this
Hon'ble Court to kindly reconsider its
order dated 9.4.2015, in terms whereof,
the Review Petition of the petitioner
seeking JUDGMENTreconsideration of its Order/Judgment dated 21.3.2013 in
Criminal Appeal No. 1728 of 2007
(reported in (2013) 13 SCC 1) was
dismissed.”
(emphasis supplied)
The prayers in the Curative Petition read as
follows:-
(a) Allow the present curative
petition filed against the order dated
9.4.2015 in Review Petition (Criminal)
No. 474 of 2013;
(b) Consequently, restore Criminal
Appeal No. 1728 of 2007 decided on
21.3.2013 for hearing; and
(c) Pass any other or further order(s)
as this Hon'ble Court may deem fit in the
facts and circumstances of the present
case and in the interest of justice and
equity.”
The order passed in the Curative Petition is made
available for perusal in the paperbook of the Writ
Petition. It is seen that the order dated 21.07.2015
dismissing the Curative Petition has been considered by
a Bench of three senior-most Judges of this Court.
Order XLVIIIJUDGMENTof the Supreme Court Rules, 2013 dealswith Curative Petition and Rule 4(1) and (2) read as
follows :-
“4(1) The curative petition shall be
first circulated to a Bench of the three
senior-most judges and the judges who
passed the judgment complained of, if
available.
(2) Unless otherwise ordered by the
Court, a curative petition shall be
disposed of by circulation, without any
oral arguments but the petitioner may
supplement his petition by additional
written arguments.”
(Emphasis supplied)
'Judgment' is defined under the Supreme Court Rules,
2013 under Order I Rule 2(k) as follows :-
“'judgment' includes decree, order,
sentence or determination of any Court,
Tribunal, Judge or Judicial Officer.”
Therefore, in terms of the Judgment as defined under
the Rules, a Curative Petition has to be circulated to a
Bench of three senior-most Judges of this Hon'ble Court
and the Judges who passed the Judgment complained of, if available. JUDGMENT In the instant case, the Judgment complained of (be
it the order passed in the Review Petition) is passed by
a Bench of three Judges comprising of Hon'ble Sh. Anil
R. Dave, J., Hon'ble Sh. J. Chelameswar, J. and myself,
but the Curative Petition is circulated only to the
three senior-most Judges.
It may not also be totally out of context to note
that the order dated 09.04.2015 in the Review Petition
is captioned as a Judgment, apparently, in terms of the
definition of 'judgment' under the Supreme Court Rules.
Thus, it is found that the procedure prescribed under
the law has been violated while dealing with the
Curative Petition and that too, dealing with life of a
person. There is an error apparent on the face of the
order in the Curative Petition. The mandatory procedure
prescribed under law has not been followed.
Though the learned senior counsel and the learned
Attorney General referred to various grounds available
in a Curative Petition, in the nature of the view I have
taken in the matter that the Curative Petition itself
has not been decided in accordance with the Rules
prescribed by this Court, that defect needs to be cured
first. Otherwise, there is a clear violation of Article
21 of the Constitution of India in the instant case.
The learned Attorney General, inter alia, contended that this is JUDGMENTnot an issue raised in the writproceedings. I do not think that such a technicality
should stand in the way of justice being done. When
this Court as the protector of the life of the persons
under the Constitution has come to take note of a
situation where a procedure established by law has not
been followed while depriving the life of a person, no
technicality shall stand in the way of justice being
done. After all, law is for man and law is never
helpless and the Court particularly the repository of
such high constitutional powers like Supreme Court shall
not be rendered powerless.
In the above circumstances, I find that the order
dated 21.07.2015 passed in the Curative Petition is not
as per the procedure prescribed under the Rules. Hence,
the Curative Petition has to be considered afresh in
terms of the mandatory requirement under Rule 4 of Order
XLVIII of the Supreme Court Rules, 2013.
In that view of the matter, the death warrant issued
pursuant to the Judgment of the TADA Court dated
12.09.2006, as confirmed by this Court by its Judgment
dated 21.03.2013, of which the Review Petition has been
dismissed on 09.04.2015, is stayed till a decision
afresh in accordance with law is taken in the Curative
Petition.
After a decision is taken on the matter, as abovesaid, the Writ Petition be placed for consideration before the Court.
WRIT PETITION (CRIMINAL) No. 129 OF 2015
YAKUB ABDUL RAZAK MEMON Petitioner(s)
STATE OF MAHARASHTRA, THR. THE SECRETARY, HOME DEPARTMENT AND ORS. Respondent(s)
O R D E R
In view of the disagreement between us, the
Registry is directed to place the papers before
Hon'ble The Chief Justice of India, preferably
today, so that an appropriate Bench could be
constituted and the matter can be heard on merits as
soon as possible, preferably tomorrow i.e. on
29.07.2015.