New Delhi, July 28
Chief Justice of India H.L.
Dattu will constitute a new bench on Wednesday to hear 1993 Mumbai
serial bomb blast convict Yakub Memon's plea seeking stay of his
execution slated for July 30 and quashing of death warrant on the
grounds that it was issued even before he could exhaust his legal
remedies.
Chief Justice Dattu said: "I will constitute a bench
tomorrow", as Attorney General Mukul Rohatgi informed the bench about
the split verdict earlier in the day, with a common order asking the
court registry to place it before the chief justice for the matter to be
listed before an appropriate bench.
Senior counsel Raju
Ramachandran, appearing for Memon, urged Chief Justice Dattu to grant
stay of execution of Memon slated for Thursday.
However, the court did not pass any order on the plea.
Earlier
on Tuesday, Justice Anil R. Dave and Justice Kurien Joseph took
differing stands on Memon's plea challenging his death penalty and urged
the chief justice to set up "an appropriate bench" so that matter could
be heard as soon as possible.
The bench of Justice Dave and
Justice Kurian, in its common order after pronouncing their divergent
judgments, said: "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."
Dismissing Memon's
petition, Justice Dave said: "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."
He recounted the sequence of the court proceedings
from 1993 to when Yakub's death sentence was upheld till the curative
petition was dismissed on July 21, 2015 including rejection of mercy
petition by the president and the Maharashtra governor.
Memon's
mercy petitions were rejected by the president and governor "possibly
because of the gravity of the offence committed by the petitioner",
Justice Dave said in his order.
Noting that Memons moved another
application for pardon before the governor, which he had filed soon
after the rejection of his curative petition on July 21, Justice Dave
said it would be open to governor to dispose it of before July 30, if he
"wants to favour the petitioner". A
Staying the death warrants
till decision was taken afresh "in accordance with law is taken in the
curative petition", Justice Joseph found faults in the composition of
the bench that had rejected the curative petition.
He contended
that the bench that decided the curative petition must have included
besides Justice Dave, Justice J. Chelameswar and Justice Kurian Joseph
who had heard and decided the review petition by Memon against him on
April 9, 2015.
Referring to the Supreme Court order 48 rule 4
dealing with curative petition and holding that they were not followed,
Justice Kurian said: "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."
"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 such high constitutional powers like
Supreme Court shall not be rendered powerless," Justice Kurian said
while dealing with Rohatgi's contention that there was no challenge to
the composition of the bench that heard the curative petition by the
Memon in his latest petition.
