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REPORTABLE 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.

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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.

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REPORTABLE 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

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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

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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

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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

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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

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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.

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REPORTABLE 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.