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.
1.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 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 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. (2014) 3 SCC has, upon perusal of various jail
manuals which exhibited 1 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 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, 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,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 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 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 . 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 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 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 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 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
Courtesy : Supreme Court of India website
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