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Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL ORIGINAL JURISDICTION

WRIT PETITION (CRL.) NO.135 OF 2015

Yakub Abdul Razak Memon ...Petitioner

Versus

State of Maharashtra and Anr.    ...Respondents

J U D G M E N T

Dipak Misra, J.

The issue that had seen the end after the day’s drill  at

4.15 p.m. yesterday, i.e., 29.07.2015, appears to have unending

character because precisely after ten hours, about 3.15 a.m. on

30.07.2015, it has risen like a phoenix possibly harbouring the

idea that it has the potentiality to urge for a second lease of life

as put forth by Mr. Anand Grover, learned Senior Counsel and

Mr.  Yug  Chaudhry,  learned  counsel,  appearing  for  the

petitioner,  stating that the assail  has become inevitable after

the President of India in exercise of his power under Article 72

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of the Constitution has rejected the mercy petition preferred by

the petitioner.    Be it  stated,  it  is  contended by the learned

counsel for the petitioner that by virtue of the rejection of the

mercy petition, the death warrant issued on 30.4.2015 would

be  executed  today,  without  waiting  for  14  days,  and  hence,

there should be a grant of stay.  

2. We  may  mention  that,  before  the  ink  in  the  earlier

judgment has dried up, the present writ petition has been filed

by the petitioner assailing the legal justifiability of the execution

warrant  dated  30.04.2015  issued  by  the  Presiding  officer,

Designated  TADA  Court,  Mumbai,  for  execution  of  the

petitioner at 7.00 a.m. on 30.07.2015 and further to direct the

stay of the petitioner’s execution till the instant writ petition is

disposed of.  

3. We do not have to adumbrate the facts in entirety as the

facts of the instant case have been elaborately stated in W.P.

(Crl.)  No.  129  of  2015  which  has  been  dismissed  on

29.07.2015.   In  the  earlier  writ  petition,  the  prayer,  in

quintessentiality, was made for setting aside the death warrant

issued by the Designated TADA Court, Mumbai.  The grounds

were many but we must state with certitude that they did not

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find favour with us.  Mr. Grover, learned Senior Counsel would

submit  that  it  might  appear  that  the prayers in  the present

petition are the same and anyone may foster the idea that an

effort has been made in a contrived manner to procrastinate the

date of  execution of  the convict,  but it  is not so.   He would

further  submit  that  by  the  occurrence  of  subsequent  events

that took place after the pronouncement of the judgment, fresh

grounds have emerged which could not have been conceived of

at  the  time  when  the  matter  was  argued.   It  is  urged  that

though  the  prayer  is  the  same,  yet  the  grounds  are  totally

different.

4. At  this  juncture,  the subsequent  event which has been

accentuated upon by Mr. Grover, learned Senior Counsel and

Mr. Chaudhry, learned counsel, needs to be noted.  After we

dismissed the earlier  writ  petition being W.P.(Crl)  No.  129 of

2015, the President of India rejected the mercy petition of the

petitioner.   The fulcrum of the submission of Mr. Grover is that

the petitioner is entitled in law to challenge the same albeit on a

limited   ground and,  therefore,  a  three-Judge  Bench of  this

Court in Shatrughan Chauhan & Anr. V. Union of India &

ors.1 has, upon perusal of various jail manuals which exhibited 1 (2014) 3 SCC 1  

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discrepancies,  intended  to  rationalise  by  laying  down  a

minimum  period  so  that  the  convict  can  make  certain

arrangements.  To put it succinctly, when a mercy petition is

rejected, there has to be a minimum period of 14 days between

its  rejection  being  communicated  to  the  petitioner  and  his

family  and  the  scheduled  date  of  execution.   That  apart,

minimum  period  of  14  days  is  stipulated  between  the

communication of the death warrant to the petitioner and the

scheduled date of execution.  

5. Mr.  Grover,  learned  senior  Counsel  appearing  for  the

petitioner,  would contend that  both the conditions are to be

satisfied as they are cumulative in nature.  There can be no

cavil over the same.  First, to the second condition.  The death

warrant  was  issued  on  30.04.2015  which  was  admittedly

received by the petitioner  on 13.07.2015 and the date of  its

execution is 30.07.2015, i.e., today.  Thus, one of the facets is

met with.  As far as the first aspect is concerned, in the earlier

judgment  passed  in  W.P.(Crl)  No.  129/2015,  this  Court  has

held thus:-

“After the judgment was pronounced on 21.03.2013, an  application  for  review  was  filed,  which  was dismissed  by  circulation  on  30.07.2013.   After  the rejection of the application for review, Suleman, the

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brother of the petitioner, represented under Article 72 of  the  Constitution  to  the  President  of  India  on 06.08.2013, claiming benefits  under Article  72(1)  of the Constitution.  The petitioner on 07.08.2013, wrote to  the  Superintendent,  Central  Jail,  Nagpur, informing him about receipt of petition by the office of the  President  of  India.   On  02.09.2013,  the Government of India forwarded the mercy petition of the convict addressed to the President of India, to the Principal  Secretary,  Home Department,  Mahrashtra, as per the procedure.  The Governor of Maharashtra rejected  representation  on  14.11.2013  and  on 30.09.2013,  the  State  Government  informed  the Central  Government  about  rejection  of  the  mercy petition by the governor of Maharashtra.  On receipt of  the  said  communication  from  the  State Government  on  10.03.2014,  the  summary  of  the case/mercy petition prepared by the Ministry of Home Affairs  under  the  signatures  of  Home Minister  was forwarded to the Petitioner.   The said rejection was communicated to the stipulation that the convict be informed  and,  accordingly,  on  26.05.2014,  the petitioner was informed about the rejection of mercy petition by the President of India.”

We have reproduced the whole paragraph as they state the

facts in completeness.  Before we proceed with regard to the

necessity  for  grant  of  14  days’  time  after  receipt  of

communication  of  the  rejection  of  the  mercy  petition,  it  is

appropriate  to  refer  to  paragraph 241.7  of  the  Shatrughan

Chauhan’s case (supra) which reads as follows:-  

“241.7.  Some Prison Manuals do not provide for any minimum period between the rejection of the mercy petition being communicated to the prisoner and his family  and the  scheduled date  of  execution.   Some Prison  Manulas  have  a  minimum  period  of  1  day,

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others  have  a  minimum  period  of  14  days.   It  is necessary  that  a  minimum  period  of  14  days  be stipulated between the  receipt  of  communication  of the rejection of the mercy petition and the scheduled date of execution for the following reasons:  (a) It  allows  the  prisoner  to  prepare  himself mentally for execution, to make his peace with God, prepare his will and settle other earthly affairs.  (b) It  allows the prisoner to have a last and final meeting with his family members. It also allows the prisoners’ family members to make arrangements to travel to the prison which may be located at a distant place  and  meet  the  prisoner  for  the  last  time. Without  sufficient  notice  of  the  scheduled  date  of execution,  the  prisoners’  right  to  avail  of  judicial remedies will be thwarted and they will be prevented from  having  a  last  and  final  meeting  with  their families.”

It  is  urged  by  Mr.  Grover,  learned  Senior  Counsel  and  Mr.

Chaudhry,  learned counsel  that  the  first  mercy  petition  was

submitted by Suleman, brother of the petitioner, on 06.08.2013

which stood rejected on 11.04.2014 by the President of India

and that was communicated to the petitioner on 26.05.2014,

but the petitioner had not submitted any mercy petition.   

6. There is no dispute over the fact that the petitioner had

not submitted any representation invoking the authority of the

President of India under Article 72 of the Constitution of India.

However, it is not in dispute that his brother had submitted.  It

is also beyond dispute that the petitioner does not disown the

submission of the petition by his brother on his behalf.  In fact,

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he  had  communicated  to  the  Superintendent,  Central  Jail,

Nagpur,  on  07.08.2013,  informing  him  about  receipt  of  the

petition by the office of the President of India so as to pursue

the same.  The said mercy petition as has been indicated earlier

stood rejected on 11.04.2014.  The petitioner did not think it

appropriate to challenge the rejection of the mercy petition by

the President of India.  He accepted his fate.  

7. Be  it  stated  here,  the  mercy  petition  was  preferred  on

6.08.2013 and prior to that, the review petition was dismissed

by circulation on 30.07.2013 by the two-Judge Bench of this

Court  which  had  decided  the  appeal  on  21.03.2013.   As  is

evident, the constitutional validity of the rule relating to review

was  called  in  question  before  this  Court.   The  Constitution

Bench in  Mohd.  Arif  alias  Ashfaq v.  Registrar,  Supreme

Court of India and Ors.2 dealing with the said rule opined that

in death cases, the matter should be heard by a three-Judge

Bench and the  review petition  should  be  heard  in  the  open

court  by  giving  maximum  time  limit  of  30  minutes  to  the

convict.  

8. Since the petitioner had not filed a curative petition, he

was entitled to seek reopening of the review petition, as per the 2 (2014) 9 SCC 737

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liberty  granted  to  certain  categories  of  cases  in  Mohd.  Arif

Alias  Ashfaq  (supra).   Accordingly,  his  review  petition  was

heard  by  a  three-Judge  Bench  in  the  open  Court.   After

rejection of the said review petition on 09.04.2015, he filed a

curative  petition on 22.05.2015 which also got dismissed on

21.07.2015.  At this stage, it is imperative to state that despite

the Constitution Bench saying that there shall be oral hearing

of  the  application  for  review  for  a  maximum  period  of  30

minutes,  the  review petition  was heard for  almost  ten  days.

The purpose of mentioning the same is that ample opportunity

was afforded to the petitioner.   

9.  After rejection of the curative petition on the 21.07.2015,

the  petitioner  submitted  a  mercy  petition  to  the  Governor,

Maharashtra  which  was  received  on  22.07.2015.   He  also

submitted  another  mercy  petition  to  the  President  of  India

which was received by the President of India at 2.00 p.m. on

29.07.2015.  Both these mercy petitions have been rejected.   

10. It  is  submitted  by  Mr.  Grover,  learned  Senior  Counsel,

that  as  per  the  principle  stated  in  Shatrughan  Chauhan

(supra), the petitioner is entitled to claim commutation of death

sentence  to  life  imprisonment  on  the  basis  of  supervening

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circumstances.   For  the  said  purpose,  he  has  referred  to

paragraphs  28  and  29  of  the  decision  in  Shatrughan

Chauhan (supra) which read as under:-

“28. The  petitioners  herein  have  asserted  the following  events  as  the  supervening  circumstances, for  communication  of  death  sentence  to  life imprisonment: (i) Delay  (ii) Insanity (iii)Solitary confinement  (iv)Judgments declared per incuriam (v) Procedural laspses

29. All the petitioners have more or less asserted on the  aforesaid  grounds  which,  in  their  opinion,  the executive had failed to take note of while rejecting the mercy petitions filed by them.  Let us discuss them distinctively and come to a conclusion whether each of the circumstances exclusively or together warrants the  communication  of  death  sentence  into  life imprisonment.”

What  is  submitted  today  is  that  the  petitioner  can

challenge  the  rejection of  the  mercy petition  only  when it  is

formally served on him,  for the counsel for the petitioner have

only come to know from the news report about the rejection of

the mercy petition by the President of India.  Thus, 14 days’

time has not  been granted and he has been deprived of  the

right to assail the same.  As has been stated earlier, the said

stand has been sought to be highlighted on the basis of  the

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reasons stated in paragraph 241.7 of the case of  Shatrughan

Chauhan  (supra).   Pyramiding  the  said  submission,  it  is

propounded  by  Mr.  Grover,  learned  Senior  Counsel  and  Mr.

Chaudhry, learned counsel that in the absence of any time to

assail the rejection of the mercy petition, the execution of death

warrant deserves to be stayed.  

11. The question that emerges for consideration is whether on

the ground of not granting of 14 days’ time from the date of

receipt  of  communication  of  rejection  of  the  mercy  petition,

should the warrant which is going to be executed at 7.00 a.m.

on 30.07.2015 be stayed.  Mr. Mukul Rohatgi, learned Attorney

General for India, appearing for the respondent, would submit

that the mercy petition is considered by the President of India

in exercise of his power under Article 72 of the Constitution of

India and when he has rejected the mercy petition after due

consideration  of  all  the  relevant  facts  on  earlier  occasion,  if

such  kind  of  repetitive  mercy  petitions  are  allowed  to  be

submitted and further challenge to the rejection of the same is

permitted,  the  danger  of  the  concept  of  ad  infinitum  would

enter into the field.  Mr. Rohatgi would further contend that at

the  drop  of  a  hat,  everybody  can  add a  new fact  or  a  new

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development and expect the President of India to deal with it as

contemplated under Article 72 of the Constitution of India and,

thereafter, challenge the same in a court of law.  

12. The instant petition is a clear expose of the manipulation

of  the  principle  of  rule  of  law.   The  petitioner  was  tried  for

which is known as “Bombay Blast Case’ and stood convicted in

the year 2007.  Almost 22 years have passed since 1993 when

the incident occurred.  We have not perceived any error in the

issue of the death warrant as per our order dated 29.07.2015

passed in W.P. (Crl) No.129 of 2015.  The only exception which

has  been enthusiastically  carved out  by  Mr.  Grover,  learned

Senior Counsel and Mr. Chaudhry, learned counsel is that they

are entitled to get 14 days’ time to assail the rejection of the

mercy petition.  When the first mercy petition was rejected on

11.04.2014, there was sufficient time available to the petitioner

to make arrangement for his family members to meet him in

prison and make necessary worldly arrangements.  There was

adequate  time to  prepare  himself  to  meet  his  Maker  and to

make  peace  with  himself.   We  have  been  apprised  by  Mr.

Rohatgi, learned Attorney General for India that the family was

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allowed to meet the petitioner whenever they desired as per the

Jail Manual.  

13. The residuary part  of  the submissions put forth by the

learned counsel for the petitioner is that the petitioner can still

challenge the rejection of his mercy petition.  On a first glance,

the aforesaid submission may look quite attractive, but in the

present  case  the  same  does  not  have  much  commendation

because the rejection of the first mercy petition by the President

of India could have been assailed before this Court, but it was

not done.  We have been apprised that the copy of the order of

rejection of the mercy petition has been sent to the petitioner,

but the fact remains that after the rejection of the first mercy

petition,  despite  sufficient  time,  the  petitioner  chose  not  to

challenge the same.  We do not think that it is a case of such

nature where it can be said that legal remedy was denied to the

petitioner.  True it is, the first mercy petition was submitted by

the  brother  of  the  petitioner,  but  as  the  facts  would  clearly

show, he was aware of  the same.  Learned Attorney General

would contend that the petitioner, in fact, had written a letter

to the concerned Superintendent of Jail pertaining to the same.

Regard being had to the totality of facts and circumstances of

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this case, we are not inclined to accept the submission that  the

present mercy petition was preferred by the petitioner for the

first time and, therefore, 14 days’ time should be granted so

that  he  can  do  the  needful  as  per  law.   In  our  considered

opinion, to grant him further time to challenge the rejection of

the  second  mercy  petition  for  which  we  have  to  stay  the

execution  of  the  death  warrant  dated  30.04.2015  would  be

nothing but   travesty of justice.   

14. Resultantly,  we  do  not  perceive  any  merit  in  this  writ

petition and the same is, accordingly, dismissed.  

......................J. [Dipak Misra]

.......................J. [Prafulla C. Pant]

.....................J. [Amitava Roy]

New Delhi July 30, 2015

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