In an interesting twist of events, Justice Anil R. Dave and Justice Kurian Joseph have delivered a split decision on Yakub Memon’s Writ Petition.
A new Bench comprising of Justices Justice Dipak Mishra, P C Pant and Amitav Roy will hear the matter Tomorrow in Court No;4 Item No;2
Justice Dave has dismissed Yakub Memon’s Writ Petition. He noted that the Memon’s application is pending before the Governor of Maharashtra and observed that it would be open to the Governor to dispose of the application before the date on which the sentence is to be executed, if he wants to favour Memon.
On the other hand, Justice Kurian Joseph has ruled that the Curative Petition, as challenged by way of a Writ Petition, needs to be considered afresh in terms of the mandatory requirement under Rule 4 of Order XLVIII of the Supreme Court Rules, 2013. He went on to stay the death warrant issued on April 30 by the TADA court in Mumbai fixing the date of hanging on July 30.
He noted that a Curative Petition has to be circulated to a Bench of three senior-most Judges of the Supreme Court and the Judges who passed the Judgment complained of, if available.
In the instant case, the Judgment complained of was passed by a Bench of three Judges comprising Justice Anil R. Dave, J., Justice J. Chelameswar, J. and Justice Kurian Joseph. However, the Curative Petition was circulated only to the three senior-most Judges, Justice Joseph noted.
He hence 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. There is an error apparent on the face of the order in the Curative Petition. The mandatory procedure prescribed under law has not been followed.”
He found that the Curative Petition itself was not decided in accordance with the Rules prescribed by the Supreme Court.
The Attorney General had argued that this ground has not been raised in the Writ Petition. However, Justice Joseph observed 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.”
In view of the conflicting decisions, the registry was directed to place the papers before the Chief Justice of India, for constitution of an appropriate bench for hearing the Court on merits. It was also requested that the matter be heard as soon as possible, preferably tomorrow.
Read the Judgment here.