Questioning the maintainability of the application filed by AG Perarivalan, life convict in the assassination case of former Prime Minister (PM) Rajiv Gandhi, for recall of the trial court’s 1998 conviction order against him, the Central Bureau of Investigation (CBI) has told the Supreme Court that a convict cannot file a second review which is abuse of the apex court’s rules.
Filing an affidavit in reply to Perarivalan’s application, the CBI said the case has attained its finality when the apex court had upheld the conviction and at this stage he can only file curative petition but not an application in which the convict is seeking reopening of the whole matter.
“The present application would be an abuse of the process of the court as it seeks to camouflage an application for second review as an application for recall of an order. Such a course ought not to be encouraged as it will set a precedent and in every case parties will start filing an application for recall in addition to review and raise the same grounds and seek a re-hearing of the matter on merits".
“The application is seeking the second review which is not permissible under the Supreme Court Rules.”
“The applicant (Perarivalan) seeks reopening of the whole matter on merits which is not permissible in the application for recall of the order. This application deserved to be dismissed.
According to the CBI, the review petition was dismissed by the apex court in October 1999 upholding the conviction against the applicant. The only remedy available for him is to file a curative petition to assail the judgment of May 1998.
Perarivalan, who has been in jail for the past 26 years, has moved an application for recall of the conviction order in the light of former CBI investigating officer’s affidavit that the CBI omitted the part of convict's confession where he said that he had “absolutely no idea” of the purpose for which the two nine volt batteries he bought would be used for.
Perarivalan relied on the background of the affidavit of the CBI officer V Thiagarajan (PW52), who recorded the confession statement of the Applicant/Petitioner in 1991, saying “the reasons for sustaining the conviction will vanish completely and absolve the petitioner of any ‘mens rea’ essential for the punishment”.
During hearing of Perarivalan’s plea for suspension of sentence till the Multi-Disciplinary Monitoring Agency (MDMA) completes its investigation into the larger conspiracy of bomb manufacturing, Thiagarajan, through an affidavit before the Supreme Court in October last year, had stated that the CBI omitted the part of convict's confession where he said he had “absolutely no idea” of the purpose for which the two 9 V batteries he bought would be used for.
He also cited former SC Judge KT Thomas, who authored the apex court’s conviction judgment in 1999 and had drawn attention, in an interview, to the fallacious appreciation of law wherein the confessional statement was admitted as substantial evidence.
On January 28, 1998, the designated TADA court had convicted all 26 accused and imposed death penalty under both the TADA Act and IPC Act, but on May 11, 1999, the Supreme Court had acquitted the accused from all TADA charges but confirmed the death penalty for four, including Perarivalan, on the basis of the confessional statement recorded under the TADA Act.
Perarivalan’s death penalty was converted into life imprisonment by the Supreme Court in 2014 on the ground that the then President of India had unreasonably delayed in deciding his mercy plea.
Perarivalan was found guilty for his role in supplying 2 9V batteries for the IED which was used in the killing of Congress leader and former Prime Minister Rajiv Gandhi at a public rally in 1991.