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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
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(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
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(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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