YAKUB ABDUL RAZAK MEMONversusSTATE OF MAHARASHTRA AND ANR.

                     [2015] 12 S.C:-R. 689


               YAKUBABDULRAZAKMEMON                                    A
                                v.
           STATE OF MAHARASHTRAANDANR.
          WRIT PETITION (CRL.) N0.135 OF 2015
                                                                       B
                         JULY30,2015
        [DIPAK MISRA, PRAFULLA C. PANT AND
                  AMITAVA ROY, JJ.]
    ,., Mercy petition: 1993 Bombay bomb blasts - Petitioner           c
convicted and awarded death sentence - Mercy petition
rejected - Death warrant issued - Writ petition - Legal
justifiability of warrant for execution of petitioner on 30. 7. 2013
 assailed and direction sought for stay of execution till disposal
 of writ petition on the ground of not granting of 14 days' time       D
 from the date of receipt of communication of rejection of the
 mercy petition - Held: Almost 22 years have passed since
 1993 when the incident occurred - There was no error in the
 issue of the death warrant - When the first mercy petition
 was rejected on 11. 04. 2014, there was sufficient time available     E
 to the petitioner to make arrangement for his family members
 to meet him in prison and make necessary worldly
 arrangements - He had adequate time to prepare himself
 to meet his Maker and to make peace with himself - The
 family was allowed to meet him whenever they desired as               F
 per the Jail Manual- The rejection of the first mercy petition
 by the President of India could have been assailed before
 Supreme Cowt. but it was not done - It was not a case of
 such nature where it could be said that legal remedy was
 denied to the petitioner - The first mercy petition was               G
 submitted by the brother of the petitioner, but the facts clearly
 showed that he was aware of the same- The present mercy
 petition was, therefore, not preferred by the petitioner for the
 first time and. therefore, 14 days' time should not be granted.       H
                               689
         .,   .                            "'·"    ..



690           SUPREME COURT REPORTS               [2015J 12 S.C.R.


A         Dismissing the appeal, the Court

         HELD: 1. There is no ~ispute over the fact that the
   brother of the petitioner had submitted representation
   invoking the authority of the President of India under
 B Article 72 of the Constitution of India. 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
 C of the President o-f India so as to pursue the same. The
   said mercy petition stood rejected on 11.04.2014. The
   petitioner did not challenge the rejection of the mercy
   petition by the President of India and accepted his fate.
   [Para 6) [697 -A-CJ
 D
         2. 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
 E is evident, the constitutional validity of the rule relating
   to review was called in question before this Court. The
   Constitution Bench in dealing with the said rule opined
   that in death cases, the matter should be heard by a
   three-Judge Bench and the revjew petition should be
 F heard in the open court by giving maximum time limit of
   30 minutes to the convict. 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.
 G 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
 H
      YAKUB ABDUL RAZAK ME MON v. STATE OF                   691
                 MAHARASHTRA

despite the Constitution Bench saying that there shall A
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. After rejection of the curative petition on B
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 C
mercy petitions were rejected. [Paras 7 to 9] [697-D-H;
698-A-C]

      3. The question that emerges for consideration is
whether on the ground of not granting of 14 days' time       D
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. The
instant petition is a clear expose of the manipulation of
the principle of rule of law. The petitioner was tried for   E
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. There was no
error in the issue of the death warrant. When the first
mercy petition was rejected on 11.04.2014, there was         F
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       G
Maker and to make peace with himself. The family was
allowed to meet the petitioner whenever they desired as
per the Jail Manual. [Paras 11, 12] [699-E; 700-A-E]

     4. The rejection of the first mercy petition by the ·
                                                             H
692       SUPREME COURT REPORTS                  [2015] 12 S.C.R.


A President of India could have been assailed before this
  Court, but it was not done. It is not 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
B would clearly show, he was aware of the same. The
  present mercy petition was therefore not preferred by
  the petitioner for the first time and, therefore, 14 days'
  time should not be granted. [Para 13) [700-F-H; 701-A-B]
 c        Shatrughan Chauhan & Anr. v. Union of India &
          Ors. (2014) 3 sec 1: 2014 (1) SCR 609; Mohd.
          Arif alias Ashfaq v. Registrar, Supreme Court of
          India and Ors. (2014) 9 SCC 737 - referred to.
                         Case Law Reference
 D
      2014 (1) SCR 609           referred to.             Para 4
      (2014) 9 sec 737           referred to.             Para 7
        CRIMINAL ORIGINAL JURISDICTION: Writ Petition (Crl.)
 E No. 135 OF 2015

          Under Article 32 of the Constituion of India.

        Anand Grover, Sr. Adv., Yug Chaudhry, Ms. Nithya
   Rarnakrishnan, Ms. Vrinda Grover, Prashant Bhushan, Ms.
 F Anindita Pujari, Rishabh Sancheti, Siddhartha Sharma, Ms.
   Amritanandamayer, Ms. Tripti, Nishant Gokhale, Naseer
   Ahmed, Ms. Lubhyathi Raarajan, Ms. Shreya Ratogi, Ms.
   Preetika Dwivedi, Ms. Sansriti Pathak, S. Ranjit Marar,
   Siddharth Sharma,Advs. with him for the Petitioner.
 G
           Mukul Rohatgi, Attorney General of India, Nishant
      Katneshwarkar, Ms. Devanshi Singh, Ms. Ranjeeta Rohatgi,
      Sameer Rohatgi, Guramer Sistani, Advs., with him for the
      Respondents.
 H
       YAKUBABDUL RAZAK MEMON v. STATE OF                           693
                 MAHARASHTRA

      The Judgment of the Court was delivered by                     A

       DIPAK MISRA, J. 1. 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 becauseyrecisely after.
ten hours, about 3.15 a.m. on 30.07.2015, it has risen like a B
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
coun.;:;el, appearing for the petitioner, stating that the assail
has become inevitable after the President of India in exercise C
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 D
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 e~ecution E
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.                                                          F

       3. We do not have to adumbrate the facts in entirety as
the facts of the instant case have beer) 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 G
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
                                                                    H
694           SUPREME COURT REPORTS               [2015] 12 S.C.R.


A 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
B 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.
 c
           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
 D 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 &
         1
 E ors. 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
 F 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 petitior:ier and the scheduled date of
 G 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

 H    1
          r2014J 3 sec 1
      YAKUBABDUL RAZAK MEMON v. STATE OF                            695
         MAHARASHTRA [DIPAK MISRA, J.]

cavil over the same. FirS.t, to the second condition. The death A
warrant was issued on 30.04.2015 which was admittedly
received by the petitioner on 13.07.2015 arid 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 B
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       c
     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,         D
     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           E
     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                F
     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         G
     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           H
696       SUPREME COURT REPORTS                   [2015]12 S.C.R.


A 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:-
B
        "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
c       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
D       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.
 E        (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
 F        the scheduled date of execution, the prisoners' ri~ht to
          avail of judicial remedies will be thwarted and they will
          be prevented from having a last and final meeting with
          their families."
 G       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,
 H but the petitioner had not submitted any mercy petition.
         YAKUBABDULRAZAKMEMON v. STATE OF                       697
            MAHARASHTRA [DIPAK MISRA, J.]

      6. There is no dispute over the fact that the petitioner A
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 B
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 C
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 D
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 E
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 F
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 revieVI! petition G
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
2
    (2014) g sec 737                                             H
698       SUPREME COURT REPORTS                  [2015] 12 S.C.R.


A 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
B 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.
 C He also submitted another mercy petition to the President of
   India which was received by the President of India at2.00 p.m.
   on 29.07.2015. Both these mercy petitions have been
   rejected.

 o       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
 E 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:
 F
          (i)    Delay
          (ii) Insanity
          (iii) Solitary confinement
          (iv) Judgments declared per incuriam
 G
           (v)   Procedurcil 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
 H         petitions filed by them. Let us discuss them distinctively
      YAKUBABDUL RAZAK MEMON v. STATE OF                          699
         MAHARASHTRA [DIPAK MISRA, J.]

     and come to a conclusion whether each of the A
     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 B
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 bee1.1 stated earlier, the said c
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 D
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 E
date of receipt of communication of rejection of the mercy
petition, should the warrant which is going to be executed at
7.00a.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 F
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 G
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 H
700         SUPREME COURT REPORTS                   [2015] 12 S.C.R.


A 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
 B    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
 C    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 hisfamily members
 D     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
 E     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,
 F 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
 G 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
 H
        YAKUB ABDUL RAZAK ME MON v. STATE OF                       701
            MAHARASHTRA [DIPAK MISRA, J.]

the petitioner. True it is, the first mercy petition was submitted A
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 B
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 C
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. R~sultantly, we do not perceive any merit in this writ D
petition and the same is, accordingly, dismissed.

Devika Gujral                                  Appeal dismissed.