Judgment by Justice Anil R Dave:
IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION
WRIT PETITION (CRIMINAL) No. 129 OF 2015
YAKUB ABDUL RAZAK MEMON Petitioner(s)
VERSUS
STATE OF MAHARASHTRA, THR. THE SECRETARY,
HOME DEPARTMENT AND ORS. Respondent(s)
J U D G M E N T
ANIL R. DAVE, J.
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.
.......................J.
[ANIL R. DAVE ]
New Delhi;
July 28, 2015.
Judgment by Justice Kurian Joseph:
IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION
WRIT PETITION (CRIMINAL) No. 129 OF 2015
YAKUB ABDUL RAZAK MEMON Petitioner(s)
VERSUS
STATE OF MAHARASHTRA, THR. THE SECRETARY,
HOME DEPARTMENT AND ORS. Respondent(s)
J U D G M E N T
KURIAN JOSEPH, J.
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 reconsideration 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 XLVIII of the Supreme Court Rules, 2013 deals with 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.
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 not
an issue raised in the writ proceedings. 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.
.......................J.
[KURIAN JOSEPH]
New Delhi;
July 28, 2015.
Common Order:
IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION
WRIT PETITION (CRIMINAL) No. 129 OF 2015
YAKUB ABDUL RAZAK MEMON Petitioner(s)
VERSUS
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.
.......................J.
[ANIL R. DAVE ]
.......................J.
[KURIAN JOSEPH]
New Delhi;
July 28, 2015.
