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 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.[1] has, upon perusal of
various jail manuals which exhibited 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 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:
Delay
Insanity
Solitary confinement
Judgments declared per incuriam
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 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
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[1] (2014) 3 SCC 1
[2] (2014) 9 SCC 737
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