Yakub Memon I

Yakub Abdul Razak Memon v. State of Maharashtra

The petitioner, Yakub Abdul Razak Memon, who had been sentenced to death, prayed for issue of a mandamus or appropriate writ or direction for setting aside the order passed by the Presiding Officer, Designated Court under TADA (P) Act, 1987, for Bombay Blast Cases and the order passed by the Government of Maharashtra, Home Department and the communication issued by the Superintendent, Nagpur Central Prison, Nagpur, in terms whereof the death sentence awarded to the petitioner was directed to be executed on 30th July, 2015, at 7.00 a.m. and to stay the execution of the death sentence awarded by the Designated TADA Court, Bombay which was subsequently confirmed by the Supreme Court, till the petitioner had exhausted all the legal remedies available to him, to have the sentence of death awarded commuted to that of life imprisonment including the remedies under Articles 72 and 161 of the Constitution of India.

In course of hearing of the writ petition, the matter was listed before a two-Judge Bench. Dave, J. dismissed the writ petition, whereas Kurian Joseph, J. kept the petition alive. The basis of disagreement was that the curative petition that was decided by a Bench of three senior-most Judges was not appositely constituted as required under Rule 4 of Order XLVIII of the Supreme Court Rules, 2013.  Hence the matter was placed before the present bench. It was contended by the petitioner that the learned Judges who decided the review petition were not parties to the Bench that decided the curative petition. The Supreme Court accepted the contention of the State that when the Judges of the “judgment complained of” are not available, it is the prerogative of the Chief Justice of India to include some other Judges; however, if it is dealt with by three senior-most Judges, as in the present case by the Chief Justice of India and two senior-most Judges, the order would not become void. On the question whether the curative petition was listed before a Bench in violation of the Rules, the court answered in negative and held that the curative petition that was decided by three senior-most Judges of the Court, can neither be regarded as void or nullity nor can it be said that there has been any impropriety in the constitution of the Bench.

It was contended that on the date the death warrant was issued, the TADA Court did not hear the petitioner, as a result of which the fundamental right enshrined under Article 21 of the Constitution had been violated. Relianace was placed on Shabnam v. Union of India & Ors. [2015 (7) SCALE 1]. But it was contended by the State that the said judgment was pronounced on a later date whereas the warrant in the present case was issued much before and that is why the TADA Court could not have applied the same principle. The Court had held that sufficient notice is to be given to the convict before issuance of death warrant by the Sessions Court so that it would enable him to consult his advocates and to be represented in the proceedings. That being the purpose, it has to be viewed in the present exposition of facts.

In Shatrughan Chauhan & Anr. vs. Union of India & Ors. [(2014) 3 SCC 1], after the appeal was dismissed, warrant was issued six days later. Indubitably, that was not in accord with any principle in such a case. The Court observed that the same principles would be applicable but in the case at hand, the said principles cannot be stretched to state that the issuance of warrant by the TADA Court would be void on the basis of non-compliance of one of the facets of the procedure. The Supreme Court held that the petitioner had availed series of opportunities to assail the conviction and as accepted he was offered ten days when the review petition was heard.

The Supreme Court dealt with the facet of second mercy petition which had been submitted on 22.07.2015. It was submitted that it is a constitutional right as per Articles 72 and 161 of the Constitution of India.  In Shatrughan Chauhan’s case, it has been stated that it is a constitutional right. A convict, after his conviction, at any stage, can make a representation to the constitutional authority seeking pardon or remission or other reliefs as have been provided under the said Articles. In the instant case, it was observed by the court that the brother of the petitioner had submitted the mercy petition to the President of India. The petitioner was absolutely in knowledge of the same. He was communicated by the competent authority that the President of India had rejected the same. It was contended that it was the brother who had submitted the mercy petition and not the petitioner. The said fact was accepted and was also evident from the communication to the Superintendent, Central Jail, Nagpur. There couldnot be any cavil that another mercy petition can be filed in certain situations.

The Supreme Court stated that dealing with the mercy petition is by the Executive. Though on certain limited grounds, as per Shatrughan Chauhan it could be challenged. After the first mercy petition was rejected, the petitioner did not challenge that. He had submitted the mercy petition, as per his version, on 22.07.2015. The Court held that issuance of death warrant was in order and there was no infirmity in the same. The Supreme Court concluded that the curative petition which was decided by three senior most Judges of the Supreme Court couldnot be flawed and the issue of death warrant by the TADA Court couldnot be found fault with. Hence, the writ petition was dismissed.