YAKUB ABDUL RAZAK MEMONversusSTATE OF MAHARASHTRA, THR. THE SECRETARY, HOME DEPARTMENT AND OTHERS

                    [20~5] 12 S.C.R. 661



             YAKUBABDULRAZAKMEMON                               A
                              v.
  STATE OF MAHARASHTRA, THR. THE SECRETARY,
        HOME DEPARTMENT AND OTHERS
            (Writ Petition (Crl.) No.129 of 2015)               B

                       JULY29, 2015
          [DIPAK MISRA, PRAFULLA C. PANT
                AND AMITAVA ROY, JJ.]
                                                                c
     Supreme Court Rules, 2013:
       Order XLV/11rule.4(1) and (2) - 1993 Bombay bomb
blasts - Conviction and death sentence - Stay of execution
of death sentence sought by writ petitioner - Question whether
curative petition was decided by the Bench duly constituted D
as per the rules - Held: The three senior-most Judges have
to be parties to the Bench and the Judges of the 'Judgment
complained of' are to be parties and if they are not available,
it is the prerogative of the Chief Justice of India to include
some other Judges; however, if it is dealt with by three senior- E
most Judges, as in this case by the Chief Justice of India
and two senior-most Judges, the order would not become
void.
     Order XLV/11 rule 4(1) and (2) - Judgment complained F
of- Held: Solely be~ause the dismissal of the review petition
has been nomenclatured as Judgment', it Will not come within
the ambit and sweep of the concept of Judgment complained
of'.
      Order I Rule 2(1 )(k) - Whether the term 'order' which G
forms a part of the definition of Judgment' as stipulated under
Order I Rule 2(1 )(k) would mean that the order in review or
the judgment passed in the main judgment - Held: It is the
principal judgment/main judgment.
                                                                H
                               661
662       SUPREME COURT REPORTS                 [2015] 12 S.C.R.

A        Sentence/Sentencing: 1993 Bombay bomb blasts -
   Conviction and death sentence - Stay of execution of death
   sentence sought by writ petitioner - Plea of petitioner that
   there was procedural violation inasmuch as the TADA court
   on 30. 04. 2015 had issued death warrant directing execution
 B on 30. 7. 2015 while the curative petition was yet to be filed -
   TADA court granted 90 days yet the petitioner was served
   only on 13.07.2015 which suffers from incurable procedural
   illegality and warrants quashment of death warrant- Held: In
   this case, after the warrant was issued, though it was served
 C on the petitioner on 13. 07. 2015, yet he had filed the curative
   petition on 22. 05.2015 and, therefore, he cannot take the plea
   that he had not availed the legal remedies - The curative
   petition was dismissed on 21.07.2015 - Petitioner had
 D availed series of opportunities to assail the conviction and
    was offered ten days when the review petition was heard-
    The brother of the petitioner had submitted the mercy petition
    to the President of India - Petitioner was absolutely in
    knowledge of the same - He was duly informed about the
 E rejection of mercy petition on 11:04.2014 - Thus issuance
    of dE7ath warrant was in order.
          Dismissing the writ petition, the Court
         HELD: 1. While this Court exercises the jurisdiction
 F in respect of a curative petition, it is actually the principal
   judgment/main judgment, which is under assail. The said
   judgment is the main judgment and in actuality attaches
   finality to the conviction in a case and the matter of re-
   examination is different. The curative petition is filed
 G against the main judgment which is really complained
   of. The three senior-most Judges have been categorically
   stated to be parties to the Bench and the Judges of the
    "judgment complained of" are to be parties and if they
    are not available,-it is the prerogative of the Chief Justice
 H of India to include some other Judges; however, if it is
 YAKUB ABDUL RAZAK ME MON v. STATE OF MAHARASHTRA, 663
         · THR. THE SECY, HOME DEPARTMENT

  dealt with by three senior-most Judges, as in this case         A
  by the Chief Justice ol·lndia and two senior-most
  Judges, the order would not become void. In the instant
  case, the Judges, who delivered the main judgment
  admittedly were not available in office. If as a principle it
  is laid down that the Judges who decide the review in           B
  the absence of the judges who have demitted the office,
  are to be made parties by a judicial imperative, that would
  not be appropriate .. A judgment is not to be read as a
  statute, but definitely a judgment has to be understood
  in proper perspective. Solely because the dismissal of          C
  the review petition has been nomenclatured as
  'judgment', it will not come within the ambit and sweep
  of the concept of 'judgment complained of'. The
  dismissal of the curative petition by the three senior-
                                                                  0
  most Judges of this Court has to be treated as correct
· and not vitiated by any kind of procedural irregularity.
  [Paras 13 to 16) [675-E-F; 676-B-C, E-F; 677-A, C-D]

      2. The petitioner was tried for various offences
before the TADA Court which imposed the death penalty             E
on him. In appeal, a two-Judge Bench of this Court
adverted to the charges, various submissions and
eventually concurred with the view expressed by the
TADA Court. After the judgment was pronounced on 21st
March, 2013, an application for review was filed, which           F
was dismissed by circulation on 30th July, 2013. After
the rejection of the application for review, the brother of
the petitioner, represented under Article 72 of the
Constitution to the President of India on 6th August, 2013,       G
claiming benefits under Article 72(1) of the Constitution.
The petitioner on 7th August, 2013, wrote to the
Superintendent, Central Jail, Nagpur, informing him
about receipt of petition by the office of the President of
India. On 2nd September, 2013, the Government of India            H
         ...
664        SUPREME COURT REPORTS            [2015] 12 S.C.R.

 A forwarded the mercy petition of the convict addressed
   to the President of India as per the procedure. The
   Governor of Maharashtra rejected representation on 14th
   November, 2013 and on 30th September, 2013, the State
   Government informed the Central Government about
 B rejection of mercy petition by the Governor. On receipt
   of the said communication from the State Government
   on 10th March, 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
 C President of India. On 11th April, 2014, the President of
    India, rejected the mercy petition of the petitioner. The
   said rejection was communicated to the State
    Government on 17/21.04.2014, with the stipulation that
 D the convict be informed and, accordingly, on 26th May,
    2014, the petitioner was informed about the rejection of
    mercy petition by the President of India. [Paras 17and
    18] [677-E-H; 678-A-D]

         3. ltwas held in Shabnamcase, that sufficient notice
 E is to be given to the convict before issuance of death
   warrant by the Sessions Court so that it would enable
   him to consult his advocates and to be represent!!d in
   the proceedings. That being the purpose, it has to be
 F viewed in the present exposition of facts. In this case,
   after the warrant was issued, though it has been served
   on the petitioner on 13.07.2015, yet he had filed the
   curative petition on 22.05.2015 and, therefore, he cannot
   take the plea that he had not availed the legal remedies.
 G The curative petition was dismissed on 21.07 .2015. The
   purpose behind the said mandate was complied with in
   this case. In Shatrughan Chauhan's case, after the appeal
   was dismissed, warrant was issued six days later.
    Indubitably, that was not in accord with any principle in
 H such a case. The same principles would be applicable
YAKUBABDUL RAZAK MEMON v. STATE OF MAHARASHTRA, . 665
       THR. THE SECY, HOME DEPARTMENT

but in the case at hand, the said principles cannot be A
stretched to state that the issuance of warrant by the
TADA Court would be void on the basis of non-
compliance of one of the facets of the procedure. As the
petitioner had availed series of opportunities to assail
the conviction and as accepted he was offered ten days B
when the review petition was heard. [Para 28) [686-C-H]

      4. A convict, after his conviction, at any stage, can
make a representation to the constitutional authority
seeking pardon or remission or other reliefs as were C
provided under.the said Articles. In the instant case, the
brother of the petitioner had submitted the mercy petition
to the President of India. The petitioner was absolutely
in knowledge of the same. He was communicated by
the competent authority that the President of India has D
rejected the same on 11.04.2014. After the first mercy
petition was rejected, the petitioner did not challenge
that. [Paras 29, 30) [687-C-D, G-H]
     Rupa Ashok Hurra 2002 (40) SCC 388; Sow              E
     Chandra Kante andAnr. vs. Sheikh Habib (1975)
     1 SCC 67 4; Mohd. Arif alias Ashfaq vs. Registrar,
     Sup~eme Court of India and Ors. (2014) 9 SCC
     737; Shatrughan Chauhan & Anr. vs. Union of
     India & Ors. (2014) 3 SCC 1: 2014 (1) SCR 609;       F
     Shabnam vs. Union of India & Ors. 2015 (7)
     SCALE 1 - relied on.
                  Case Law Reference
2002 (40) sec 388           relied on.          Para 6    G
(1975) 1 sec 674            relied on.          Para 13
(2014) 9 sec 737            relied on.          Para 19
2014 (1 ) SCR 609           relied on.          Para 23
2015 (7) SCALE 1            relied on.          Para 23
                                                          H
666        SUPREME COURT REPORTS                  [2015] 12 S.C.R.


A          CRIMINAL ORIGINAL JURISDICTION : Writ Petition
      (Criminal) No. 129of2015

          Under Article 32 of the Constitution of India.

        Mukul Rohtagi, AG, Tushar Mehta, ASG, Raju
 8
   Ramachandran, T. R. Andhyarujina, Ms. Vibha Dutta Makhija,
   Sr. Advs., Faisal Farook, Shubail Farook, Mrs. Priya Puri,
   Ranjay Dubey, Ms. Mythili Vijay Kr. Thallam, Vikram Aditya
   Narayan, Alam Mohd. lzhar, M.P. Singh, Nishant R.
 C Katneshwarkar, Mrs. Devanshi Singh, Gurmehar Sistani, Arpit
   Rai, Ms. Ranjeeta Rohtagi, Samit Khosla, Deeksha Rai
   Goswami, Mahaling Pandarge, Ms. Jyoti Kalra, Anand Grover,
   Purushottam Sharma Tripathi, Mukesh Kumar Singh, Ravi
   Chandra Prakash, Ms. Tripti Tandon, Ms.Amrita Nanda, Chand
 D Qureshi, Ashok Kumar Juneja, Rahul Narayan, Nishant
   Gokhale, Ms. Shreya Rastogi, Moh it Singh, Shomik Ghos~,
   Siddharth Sirojia, B.P. Singh, Dhakray, Rajiv Nanda, B.V.
   Bairam Das and Ms. Disha Vaish, Advs., with them for the
   appearing parties.
 E
         The Judgment of the Court was delivered by

          DIPAK MISRA, J. 1. Invoking the jurisdiction of this Court
   under Article 32 of the Constitution of India, the petitioner, who
   has been sentenced to death, has prayed for issue of a
 F mandamus or appropriate writ or direction for setting aside
   the order dated 30th April, 2015, passed by the Presiding
   Officer, Designated Court under TADA (P) Act, 1987, for
   Bombay Blast Cases and the order bearing No.S-0113/
 G C.R.652/13/PRS-3 dated 13'h July, 2015, passed by the
   Government of Maharashtra, Home Department and the
   communication bearing O.W. No.ASJ/DEATH SENTENCE/
   222/2015 dated 131h July, 2015, issued by the Superintendent,
   Nagpur Central Prison, Nagpur, in terms whereof the death
 H sentence awarded to the petitioner has been directed to be
YAKUB ABDUL RAZAK ME MON v. STATE OF MAHARASHTRA, 667
 THR. THE SECY, HOME DEPARTMENT [DIPAK MISRA, J.]

executed on 3otn July, 2015, at 7.00 a.m.; issue a writ of A
prohibition prohibiting the respondents and each one of them
along with their subordinates/agents/assigns from taking steps
in pursuance of the orders dated 301hApril, 2015 and 131h July,
2015, and, further to stay the execution of the death sentence
awarded to him in terms of the judgment dated 251hOctober, B
2007 of the Designated TADA Court, Bombay in BBC No.1 I
1993, which has been confirmed by this Court v(de judgment
dated 21 51 March, 2013 in Criminal Appeal No.1728 of 2007,
till the petitioner has exhausted all the legal remedies available
to him, to have the sentence of death awarded commuted to C
that of life imprisonment including the remedies under Articles
72 and 161 of the Constitution of India.

      2. Before we advert to the factual assertions made in the
writ petition by the petitioner and the stand and stance put forth D
by the respondents, we are obliged to refer to certain
developments that took place in the judicial proceedings
before this Court. In course of hearing of the writ petition, the
matfer was listed before a two-Judge Bench. It was heard for
some days, After hearing, Anil R. Dave, J. passed the following E
order:
     "Heard the learned senior counsel appearing for both
     the sides at length.
           It is a fact that the conviction of the petitioner has F
     been confirmed by this Court and the Review Petition as
     well as the Curative Petition filed by the petitioner have
     also been dismissed by this Court. Moreover, His
     Excellency Hon'ble The President of India and His
     Excellency The Governor of Maharashtra have also G
     rejected applications for pardon made by the petitioner,
     possibly because of the gravity of the offence committed
     by the petitioner.
           It has been submitted by the learned counsel H
668         SUPREME COURT REPORTS                  [2015] 12 S.C.R.


A          appearing for the petitioner that one more application
           made to His Excellency The Governor of Maharashtra is
           still pending.

                 If it is so, it would be open to His Excellency The
 B         Governor of Maharashtra to dispose of the said
           application before the date on which the sentence is to
           be executed, if His Excellency wants to favour the
           petitioner. Submissions made about the Curative
           Petition do not appeal to me as they are irrelevant and
 C         there is no substance in them.

                In these circumstances, the Writ Petition is
           dismissed."

            3. Kurian Joseph, J., disagreed with Anil R. Dave, J.
 0
      The basis of disagreement as is evincible from his judgment
      is that the curative petition that was decided by a Bench of
      three senior-most Judges of this Court on 21s1 July, 2015, was
      not appositely constituted as required under Rule 4 of Order
 E    XLVlll of the Supreme Court Rules, 2013 (for short, 'the Rules').
      After referring to Rule 4(1) and (2) of the said Rules and the
      term 'judgment' as defined in Order I Rule 2(k) of the Rules,
      the learned Judge has held thus:

            "It may not also be totally out of context to note that the
 F          order dated 09.04.2015 in the Review Petition is
            captioned as a Judgment, apparently, in terms of the
            definition of'judgment' under the Supreme Court Rules.
            Thus. it is found that the procedure prescribed under the
            law has been violated while dealing with the Curative
 G          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.

 H               Though the learned senior counsel and the learned
YAKUBABDUL RAZAK MEMON v. STATE OF MAHARASHTRA, 669
 THR. THE SECY, HOME DEPARTMENT [DIPAK MISRA, J.]

    Attorney General referred to various grounds available . A
    in a Curative Petition, in the nature of the view I have
    taken in the matter that the Curative Petition itself has
    not been decided in accordance with the Rules
    prescribed by this Court, that defect needs to be cured
    first. Otherwise, there is a clear violation of Article 21 of B
    the Constitution of India in the instant case.
           The learned Attorney General, inter alia, contended
    that this is not an issue raised in the writ proceedings. I
    do not think that such a technicality should stand in the c
    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 o
    of justice being done. After all, law is for man and law is
    never helpless and the Court particularly the repository
    of such high ~onstitutional powers like Supreme Court •
    shall not be rendered powerless.
          In the above circumstances, I find that the order E
    dated 21.07.2015 passed in the Curative Petition is not
    as per the procedure prescribed under the Rules. Hence,
    the Curative Petition has to be considered afresh in terms
    of the mandatory requirement under Rule 4 of Order XLVlll F
    of the Supreme Court Rules, 2013.
          In that view of the matter, the death warrant issued
    pursuant to the Judgment of the TADA Court dated       ~.. .
    12.09.2006, as confirmed by this Court by its Judgment
    dated 21.03.2013, of which the Review Petition has been G
    dismissed on 09.04.2015, is stayed till a decision afresh
    in accordance with law is taken in the Curative Petition.
        After a decision is taken on the matter, as
    abovesaid, the Writ Petition be placed for consideration H
670        SUPREME COURT REPORTS                 [2015) 12 S.C.R.


A         before the Court."
                On the basis of difference of opinion between the
          two learned Judges, the matter has been placed before
          us.
 B       4. As is evident, Dave. J. has dismissed the writ petition,
   but has not adverted to the submissions made as regards the
   curative petition and only opined that they were irrelevant and
   there was no substance in them. Kurian Joseph, J. as is patent
 C from his order has addressed at length to the same and kept
   the writ petition alive.

         5. First; we shall address the question whether the
   curative petition was listed before a Bench in violation of the
   Rules. Be it clarified here, we restrain and refrain ourselves
 D from addressing whether such an order could at all be
   challenged under Article 32 of the Constitution of India. As it
   seems, such a plea was not taken in the petition preferred by
   the petitioner. However, the learned. Judge thought it
 E appropriate to advert to the same and dwelt upon that and,
   therefore, the reference has arisen. Hence, the necessity to
   answer the same.

         6. The creation of curative jurisdiction by this Court is
   based on the Constitution 8ench judgment in Rupa Ashok
 F Hurra vs. Ashok Hurra, 2002 (4) SCC 388. Prior to the said
   judgment, the decisions in certain matters used to be
   challenged under Article 32 of the Constitution. The majority
   speaking through Quadri, J., opined thatArticle 32 petition could
   not be entertained as the same was not maintainable. Be it
 G stated, the said statement of law was conceded to by the
   learned counsel who appeared for the parties. However, it
   was also conceded that some principle has to be evolved in
   that regard. On that basis the curative principle was evolved.
 H While evolving the said principle, the majority noted as follows:
YAKUBABDUL RAZAK MEMON v. STATE OF MAHARASHTRA, 671
 THR. THE SECY, HOME DEPARTMENT [DIPAK MISRA, J.]

    "48. In the cases discussed above this Court A
    reconsidered its earlier judgments, inter alia, under
    Articles 129 and 142 which confer very wide powers on
    this Court to do complete justice between the parties.
    We have already indicated above the scope of the power
    of this Court under Article 129 as a court of record and B
    also adverted to the extent of power under Article 142 of
    the Constitution.
    49. The upshot of the discussion in our view is that this
    Court, to prevent abuse of its process and to cure a gross   c
    miscarriage of justice, may reconsider its judgments in
    exercise of its inherent power.
    50. The next step is to specify the requirements to
    entertain such a curative petition under the inherent power
    of ttifs Court so that floodgates are not opened for filing D
    a second review petition as a matter of course in the
    guise of a curative petition under inherent power. It is
    common ground that except when very strong reasons
    exist, the Court should not entertain an application
    seeking reconsideration of an order of this Court which E
    has become final on dismissal of a review petition. It is
    neither advisable nor possible to enumerate all the
    grounds on which such a petition may be entertained.
    51. Nevertheless, we think that a petitioner is entitled to F
    relief ex debito justitiae if he establishes (1) violation of
    principles of natural justice in that he was not a party to
    the lis but the judgement adversely affected his interests
    or, if he was a party to the lis, he was not served with
    notice of the proceedings and the matter proceeded as G
    if he had notice and (2) where in the proceedings a
    learned Judge failed to disclose his connection with the
    subject-matter or the parties giving scope for an
    apprehension of bias and the judgment adversely affects
                                                                  H
672        SUPREME COURT REPORTS                   [2015] 12 S.C.R.


A         the petitioner."

         7. We have referred to the aforesaid paragraphs to
   indicate that though the majority has stated that it is neither
   advisable nor possible to enumerate all the grounds on which
 8 such a petition may be entertained, yet the Bench laid down
   the ex debito justitiae principle and further enumerated two
   grounds.

         8. Learned senior counsel appearing for the petitioner
C have submitted that apart from those grounds. other grounds
  can also be taken. We do not intend to dwell upon the same
  as we are only required to deal with the reference in a limited
  manner, that is, whether the curative petition had been decided
  by the Bench duly constituted as per the Rules. In this regard,
0 it is necessary to understand what has been stated in Rupa
  Ashok Hurra case. Paragraph 52 of the said decision reads
  as follows:
          "The petitioner, in the curative petition, shall aver
          specifically that the grounds mentioned therein had been
 E        taken in the review petition and that it was dismissed by
          circulation. The curative petition shall contain a
          certification by a Senior Advocate with regard to the
          fulfilment of the above requirements."
 F        9. Paragraph 52 clearly lays down that the curative
   petition shall aver specifically that the ground mentioned therein
   had been taken in the review petition and that it was dismissed
   by circulation. The curative petition shall contain a certification
   by a senior advocate with regard to the fulfillment of the above
 G requirements. The constitution of the Bench has been laid
   down in paragraph 53. The relevant part of the said paragraph
   is as follows:
           "We are of the view that since the matter relates to re-
 H         examination of a final judgment of this Court, though on
YAKUBABDUL RAZAK MEMON v. STATE OF MAHARASHTRA, 673
 THR. THE SECY, HOME DEPARTMENT [DIPAK MISRA, J.]

     limited ground, the curative petition has to be first A
     circulated to a Bench of the three senior-most Judges
     and the Judges who passed the judgment complained .
     of, if available. It is only when a majority of the learned
     Judges on this Bench conclude that the matter needs
     hearing that it should be listed before the same Bench B
     (as far as possible) which may pass appropriate orders."
     10. Regard being had to what has been stated by the
Constitution Bench, the Rule position of Order XLVlll which
deals with the curative petition has to be appreciated. For the    c
sake of appropriate appreciation, the entire Rule is reproduced
below:
     "1. Curative Petitions shall be governed by Judgment of
     the Court dated 1Qth April, 2002 delivered in the case of
                                                               0
     Rupa Ashok Hurrah v. Ashok Hurrah and Ors. in Writ
     Petition (C) No.509of1997.
     2.(1) The petitioner, in the curative petition, shall aver
     specifically that the grounds mentioned therein had been
     taken in the Review Petition and that it was dismissed E
     by circulation.
     (2) A Curative Petition shall be accompanied by a
     certificate of the Senior Advocate that the petition meets
     the requirements delineated in the above case.
                                                                   F
     (3) A curative petition shall be accompanied by a
     certificate of the Advocate on Record to the effect that it
     is the first curative petition in the impugned matter.
     3. The Curative Petition shall be filed within reasonable
                                                               G
     time from the date of Judgment or Order passed in the
     Review Petition.
     4.(1) The curative petition shall be first circulated to a
     Bench of the three senior-most judges and the judges
     who passed the judgment complained of, if available.       H
                ·.

674       SUPREME COURT REPORTS                   [2015] 12 S.C.R.


A         (2) Unless otherwise ordered by the Court, a curative
          petition shall be disposed of by circulation, without any
          oral arguments but the petitioner may supplement his
          petition by additional written arguments.
          (3) If the bench before which a curative petition was
 B
          circulated concludes by a majority that the matter needs
          bearing then it shall be listed before the same Bench, as
          far as possible.
          (4) If the Court, at any stage, comes to the conclusion
 c        that the petition is without any merit and vexatious, it may
          impose exemplary costs on the petitioner."
          11. It is submitted by Mr. Raju Ramachandran, learned
   senior counsel appearing for the petitioner that the view
 D expressed by Kurian, J. is absolutely in consonance with the
   Rule, inasmuch as the learned Judges who decided the review
   petition were not parties to the Bench that decided the curative
   petition. He has given immense emphasis on Rule 4(1) and
   the dictionary clause in Rule 2(1 )(k), which defines the term
 E "judgment". The same reads as follows:
          "2.(1) In these rules, unless the context otherwise
          requires -
          (k) 'judgment' includes decree, order, sentence or
 F        determination of any Court, Tribunal, Judge or Judicial
          Officer."
         12. The question, in essence, would be whether the term
   'order' which forms a part of the definition of 'judgment' as
 G stipulated under Order I Rule 2(1 )(k) would mean that the order
   in review or the judgment passed in the main judgment. On a
   studied scrutiny of paragraph 53 of Ru pa Ashok Hurra (supra)
   and the preceding paragraph which we have reproduced
   he!rein-above, the curative petition has to be circulated to a
 H Bemch of three senior-most Judges, and the Judges who had
YAKUBABDUL RAZAK MEMON v. STATE OF MAHARASHTRA, 675
 THR. THE SECY, HOME DEPARTMENT [DIPAK MISRA, J.]

passed the judgment complained of. Needless to say, the A
availability has been mentioned therein. The rule has been
framed in accord with the principle laid down by the Constitution
Bench.

       13. We are required to understand what is meant by the          B
words "judgment complained of'. According to Rupa Ashok
Hurra (supra) principle, a second review is not permissible.
However, a curative petition is evolved in exercise of power
under Article 142 of the Constitution of India to avoid
miscarriage of justice and to see that in the highest Court, there     C
is no violation of principle of natural justice, and bias does not
creep in which is also fundamentally a facet of natural justice
in a different way. We reiterate at the cost of repetition, whether
other grounds can be taken or not, need not be adverted to by
us. The principle of review as is known is to re-look or re-           D
examine the principal judgment. It is not a virgin ground as
has been held by Krishna Iyer, J. in Sow Chandra Kante and
Another VS. Sheikh Habib (1975) 1           sec      674. The said
principle has been reiterated in many an authority. Thus, it is
luculent that while this Court exercises the jurisdiction in respect   E
of a curative petition, it is actually the principal judgment/main
judgment, which is under assail.

       14. The said judgment is the main judgment and in
actuality attaches finality to the conviction in a case and the F
matter of re-examination is different. The curative petition is
filed against the main judgment which is really complained of.
The words "complained of' has to be understood in the context
in which the Constitution Bench has used. The majority of the
Constitution Bench, as we understand, was absolutely of the G
firm opinion that a review of a review would not lie and an Article
32 petition would not be maintainable and, therefore, such a
method was innovated.

      15. Mr. Raju Ramachand~an, learned senior counsel H
676        SUPREME COURT REPORTS                    [2015] 12 S.C.R.


A would submit that the learned senior counse1 wno appeared
   for the various petitioners in the said case always thought of
   an amalgam. Percontra, Mr. Mukul Rohatgi, learned Attorney
   General would submit that there may be an amalgam, but the
   three senior-most Judges have been categorically stated to
B be parties to the Bench and the Judges of the "judgment
   complained of' are to be parties and if they are not available,
   it is the prerogative of the Chief Justice of India to include some
   other Judges; however, if it is dealt with by three senior-most
   Judges, as in this case by the Chief Justice of India and two
C senior-most Judges, the order would not become void. In our
    considered opinion, the submissions canvassed by the Mr.
    Mukul Rohatgi, learned Attorney General, deserves
    acceptation and, accordingly, we hold that the curative petition
  /that was decided by three senior-most Judges of this Court,
0
    can neither be regarded as void or nullity nor can it be said
    that there has been any impropriety in the constitution of the
    Bench. The Judges, who delivered the main judgment
    admittedly were not available in office. If as a principle it is laid
E down that the Judges who decide the review in the absence of
    the judges who have demitted the office, are to be made parties
    by a judicial imperative, that would not be appropriate. We
    are absolutely conscious that a judgment is not to be read as
    a statute, but definitely a judgment has to be understood in
F proper perspective. We emphasize on the judgment as the
    rules have been framed in consonance with the judgment and
    not in deviation thereof. Thus, we disagree with the view
    expressed by Kurian Joseph, J. in this regard. Mr. Raju
     Ramachandran, learned senior counsel, would emphasise on
G the word 'judgment' as the dismissal of the review petition has
     been captioned as 'judgment'. The nomenclature, in our
     considered opinion, is not relevant. For the sake of example,
     we may say, an order in certain cases can assume the status
     of a decree and in certain cases a decree may not be a decree
H as per Section 2 of the Code of Civil Procedure. The purpose
YAKUB ABDUL RAZAK ME MON v. STATE OF MAHARASHTRA, 677
 THR. THE SECY, HOME DEPARTMENT [DIPAK MISRA, J.]

of saying so is that solely because-the dismissal of the review A
petition has been nomenclatured as 'judgment', it will not come
within the ambit and sweep of the concept of 'judgment
complained of'.

       16. At this junctur~, it is condign to state that Kurian, J., B
as is vivid from his decision has not dealt with the petition under
Article 32 of the Constitution, but directed that the curative
petition has to be considered afresh in terms of the mandatory
rules. We have already recorded our disagreement with the
same. Therefore, the next stage has to be delineation of the C
writ petition on merits. As a sequitur, the dismissal of the
curative petition by the three senior-most Judges of this Court
has to be treated as correct and not vitiated by any kind of
procedural irregularity.
                                                                    D
      17. Coming to the main petition, we have already stated
about the prayers made therein. To appreciate the prayers,
we have to refer to certain facts as they are absolutely
necessitous. The petitioner was tried for various offences
before the TADA Court which imposed the death penalty on            E
him. In appeal, a two-Judge Bench of this Court adverted to
the charges, various submissions and eventually concurred
with the view expressed by the TADA Court.

      18. After the judgment was pronounced on 21st March, F
2013, an application for review was filed, which was dismissed
by circulation on 30th July, 2013. After the rejection of the
application for review, Suleman, the brother of the petitioner,
represented under Article 72 of the Constitution to the President
of India on 5th August, 2013, claiming benefits under Article G
72(1) of the Constitution. The petitioner on 7th August, 2013,
wrote to the Superintendent, Central Jail, Nagpur, informing
him about receipt of petition by the office of the President of
India. On 2nd September, 2013, the Government of India
forwarded the mercy petition of the convict addressed to the H
678       SUPREME COURT REPORTS                (2015] 12 S.C.R.


A President of India, to the Principal Secretary, Home
  Department, Maharashtra, as per the procedure. The
  Governor of Maharashtra rejected representation on 14th
  November, 2013 and on 30th September, 2013, the State
  Government informed the Central Government about rejection
B of mercy petition by the Governor of Maharashtra. On receipt
  of the said communication from the State Government on 1Oth
  March, 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 President of India. On 11th April,
C 2014, the President of India, rejected the mercy petition of the
  petitioner. The said rejection was communicated to the State
  Government on 17/21.04.2014, with the stipulation that the
  convict be informed and, accordingly, on 26th May, 2014, the
  petitioner was informed about the rejection of mercy petition
0
  by the President of India.

          19. While the aforesaid development took place, the
   petitioner along with other accused in Mohd. Arif alias Ashfaq
   vs. Registrar, Supreme Cowt of India and Others (2014) 9
 E sec 737, had assailed the constitutional validity of Order XL
   Rule 3 of the Supreme Court Rules, 1966, as unconstitutional.
   The main ground urged was that hearing of the review petition
   should not be by circulation, but should be only in open Court
   and hearing of cases in which death sentence has been
 F awarded should be by a Bench of at least three, if not five,
   Supreme Court Judges. The Constitution Bench after hearing
   the learned counsel for the parties opined that there should be
   a limited oral hearing even at the review stage in all death
 G sentence cases. We think it appropriate to reproduce
   paragraphs 39 and 40, as Mr. Mukul Rohatgi, learned Attorney
   General has emphasized on an aspect which we shall advert
   to slinhtly later on. The said paragraphs read as follows:
          "39. Henceforth, in all cases in which death sentence has
 H        been awarded by the High Court in appeals pending
YAKUBABDUL RAZAK MEMON v. STATE OF MAHARASHTRA, 679
 THR. THE SECY, HOME DEPARTMENT [DIPAK MISRA, J.]

    before the Supreme Court, only a bench of three Hon'ble A
    Judges will hearthe same. This is for the reason that at
    least three judicially trained minds need to apply their
    minds at the final stage of the journey of a convict on
    death row, given the vagaries of the sentencing
    procedure outlined above. At present, we are not B
    persuaded to have a minimum of 5 learned Judges hear
    all death sentence cases. Further, we agree with. the
    submission of Shri Luthra that a review is ordinarily to
    be heard only by the same bench which originally heard
    the criminal appeal. This is obviously for the reason that C
    in order that a review succeeds, errors apparent on the
    record have to be found. ltis axiomatic that the same
    learned Judges alleged to have committed the error be
    called upon now to rectify such error. We, therefore, turn
                                                               0
    down Shri Venugopal's plea thattwo additional Judges
    be added at the review stage in death sentence cases ..
    40. We do not think it necessary to advert to Shri Jaspal
    Singh's arguments since we are accepting that a limited
    oral review be granted in all death sentence cases E
    including TADA cases. We accept what is pointed out
    by the learned counsel for the petitioner in Writ Petition
    No.39/2013 and provide for an outer limit of 30 minutes
    in all such cases. When we come to P. N. Eswara lyer's
    case which was heavily relied upon by the learned F
    Solicitor General, we find that the reason for upholding
    the newly introduced Order XL Rule 3 in the Supreme
    Court Rules is basically because of severe stress of the
    Supreme Court workload. We may add that that stress
    has been multiplied several fold since the year 1980. G
    Despite that, as we have held above. we feel that the
    fundamental right to life and the irreversibility of a death
    sentence mandate that oral hearing be given at the review
    stage in death sentence cases, as a just, fair and
                                                                 H
680         SUPREME COURT REPORTS                   [2015] 12 S.C.R.


A          reasonable procedure under Article 21 mandates such
           hearing, and cannot give way to the severe stress of the
           workload of t~e Supreme Court. Interestingly, in P.N.
           Eswara lye r's case itself, two interesting observations
           are to be found. In para 19, Krishna Iyer, J. says that
 B         "... presentation can be written or oral, depending upon
           the justice of the situation." And again in para 25, the
           learned Judge said that "... the problem really is to find
           out which class of cases may, without risk of injustice, be
           dis posed of without oral presentation."
c
           20. It is apt to note here that certain class of cases were
      covered to be heard for limited oral hearing. The same are
      postulated in paragraph 46, which reads as follows:
           "46. We make it clear that the law laid down in this
 D
           judgment, viz., the right of a limited oral hearing in review
           petitions where death sentence is given, shall be
           applicable only in pending review petitions and such
           petitions filed in future. It will also apply where a review
 E         petition is already dismissed but the death sentence is
           not executed so far. In such cases, the petitioners can
           apply for the reopening of their review petition within one
           month from the date of this judgment. However, in those
            cases where even a curative petition is dismissed, it
 F         would not be proper to reopen such matters."
           21. In those type of cases also, 30 minutes oral hearing
   was to be given. It is submitted by Mr. Rohtagi, learned Attorney
   General, that as per the admission made by the petitioner, a
 G review petition was filed in pursuance of the decision in Mohd.
   Arif alias Ashfaq (supra) and it was heard for almost 10 days.
   It will be seemly to reproduce the order passed in the Review
   Petition as under :
            "We have heard the learned senior counsel appearing
 H          for the review petitioner and the learned senior counsel
YAKUB ABDUL RAZAK MEMON v. STATE OF MAHARASHTRA, 681
 THR. THE SECY. HOME DEPARTMENT [DIPAK MISRA, J.]
                                                                '

     length. appearing for the respondent, at We have A
     gone through. the judgment sought to be reviewed and
     we have considered the arguments advanced on both
     sides. As requested, we have also gone through the
     judgment of the trial court, in order to appreciate the
     contention on conviction and sentence. advanced B
     considered by in We the find that review detail
     sought to be reviewed. in al1 the petitioner the judgment
     arguments have been which is Hence, we do not find
     any error apparent on the face of record or any other
     ground so as to warrant interference in exercise of our C
     review jurisdiction.

     The review petition is he~ce dismissed."

      22. The review petition was dismissed on 09.04.2015. It 0
is submitted by Mr. Rohtagi that it is a second review petition.
In oppugnation, Mr. Raju Ramachandran would submit that
this was really reopening of the review petition as per the
judgment in Arif and, therefore, it cannot be called a second
review petition. Be that as it may, after the rejection of the E
review petition by the learned Judges on 09.04.2015, the
petitioner filed a curative petition on 22.05.2015 which was
dismissed vide order dated 21.07.2015.

     · 23. At this juncture, we are required to sit in a time F
machine to appreciate certain other facts. After the review
petition by the Judges who had decided the 'appeal was
dismissed, a death warrant was issued on 14.08.2013 and
the mercy petition was rejected on 11.04.2014. After rejection
of the review petition by the three Judges by giving him open G
hearing on 21.04.2015, the petitioner was communicated to
file a curative petition and, as is manifest, he had filed a curative
petition. The grievance of the petitioner, as canvassed by Mr.
Raju Ramachandran, which has been echoed with quite
vehemence by Mr. Andhyarujina and Mr. Grover, learned senior H
682       SUPREMECOURTREPORTS                   [2015) 12 S.C.R.


A counsel, who have intervened in the matter on behalf of certain
  institutions is that there has been a procedural violation
  inasmuch as the TADA Court on 30.04.2015 had issued death
  warrant directing execution on 30.07.2015 while the curative
  petition was yet to be filed. Submission of the learned senior
B counsel for the petitioner as well as Mr. Andhyarujina and Mr.
  Grover is that though the TADA Court granted 90 days, yet the
  petitioner was served only on 13.07.2015 which suffers from
  incurable procedural illegality and warrants quashment of the
  death warrant. They have placed heavy reliance on
C Shatrughan Chauhan &Anr. vs. Union of India & Ors. [(2014)
   3 SCC 1] and Shabnam vs. Union of India & Ors. [2015 (7)
   SCALE 1]. Paragraph 241.7 of Shatrughan Chauhan is the
   gravamen of submission of Mr. Raju Ramachandran, learned
D senior counsel appearing for the petitioner. The said
   paragraph 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
 E       family and the scheduled date of execution. Some prison
         manuals 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
 F       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
 G        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
 H
YAKUB ABDUL RAZAK ME MON v. STATE OF MAHARASHTRA, 683
 THR. THI:: SECY, HOME DEPARTMENT [DIPAKMISRA, J.]

      the prisoner for the last time. Without sufficient notice of · A
      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. "
                                                                     B
      24. It is urged by Mr. Raju Ramachandran, learned senior
counsel, that there has been non-compliance with the same
inasmuch as though the TADA Court has given 90 days' time
to the petitioner, yet the same has been curtailed by the State
authorities for unfathomable reason. Per contra, Mr. Rohtagi, c
learned Attorney General would submit that the rejection of
mercy petition was communicated on 26.05.2014. Therefore,
the mandate in the said paragraph would not vitiate the warrant.

      25. At this stage, we are under obligation to note that the 0
fulcrum of submission of Mr. Raju Ramachandran, learned
senior counsel, which has also received support from Mr.
Andhyarujina and Mr. Grover, learned senior counsel is that
after rejection of the curative petition, the petitioner has
submitted a second mercy petition to the Governor of E
Maharashtra on 22.07.2015 and until that is decided, the
warrant cannot be executed. We shall advert to the same at a
later stage. As far as the compliance of period of 14 days
from the scheduled date of execution is concerned, it meets
the time limit.                                                   F

      26. The next aspect that has been highlighted by the
learned senior counsel for the petitioner is that on the date the
death warrant was issued, the TADA Court did not hear him,
as a result of which the fundamental right enshrined under G
Article 21 of the Constitution has been violated. To bolster the
said submission, he has commended us to paragraph 11 of
the decision in Shabnam (supra). The said paragraph is
extracted below :
                                                                  H
684    SUPREME COURT REPORTS                     [2015] 12 S.C.R.


A      "111 On the other hand, in so far as the present case is
       concerned, the. stage of petition for mercy has not yet
       come inasmuch as the convicts have right to file an
       application for review in this Court seeking review of the
       Judgment dated 15.05.2015, vide which, the appeals
 B     of both the convicts were dismissed. He has also drawn
       our attention to the Judgment of the Division Bench of
       the Allahabad High Court in a matter titled as Peoples'
       Union for Democratic Rights (PUDR) v. Union of India &
       Ors. (PIL No.57810 of 2014 decided on 28.01.2015).
 c     He has submitted that in the said case, the High Court
        has mandated the following procedure which has to be
       followed before the execution of the death sentence. The
        said portion from the judgment is extracted below:

 D      "We are affirmatively of the view that in a civilized society,
        the execution of the sentence of death cannot be carried
        out in such an arbitrary manner, keeping the prisoner in
        the dark and without allowing him recourse and
        information. Essential safeguards must be observed.
 E      Firstly, the principles of natural justice must be read into
        the provisions of Sections 413 and 414 of Cr.P.C. and
        sufficient notice ought to be given to the convict before
      · the issuance of a warrant of death by the sessions court
        that would enable the convict to consult his advocates
 F      and to be represented in the proceedings. Secondly,
        the warrant must specify the exact date and time for
        execution and not a range of dates which places a
         prisoner in a state of uncertainty. Thirdly, a reasonable
         period of time must elapse between the date of the order
 G       on the execution warrant and the date fixed or appointed
         in the warrant for the execution so that the convict will
         have a reasonable opportunity to pursue legal recourse
         against the warrant and to have a final meeting with the
         members of his family before the date fixed for execution.
 H
 YAKUBABDUL RAZAK MEMON v. STATE OF MAHARASHTRA, 685
  THR. THE SECY, HOME DEPARTMENT [DIPAK MISRA, J.]

      Fourthly, a copy of the execution warraht must be A
      immediately.supplied to the convict. Fifthly, in those
      cases, where ~onvict is not in a position to offer a
      legal assistance, legal aid must be provided. These
      are essential procedural safeguards which must be
      observed if the right to life under Article 21 is not to be B
      denuded of its meaning and content."

        27. It is submitted by Mr. Raju Ramachandran, learned
 senior counsel, that this Court has given the stamp of approval
 to what has been stated by the Division Bench of the High       c
 Court of Allahabad and, therefore, it is a declaration of law
 under Article 141 of the Constitution. It is urged by him that the
 principles of natural justice are to be read into the provisions
 of Chapter 413 and 414. The convict has to be heard at the
 time of issuance of warrant. The learned Attorney General, in D
 his turn, would contend that the said judgment was pronounced
·on 27.05.2015 whereas the warrant in this case was issued
 on 30.04.2015 and that is why the learned TADA Court could
 not have applied the same principle. In essence, the
 submission of Mr. Rohtagi is that the principles laid down in E
 the said judgment have to apply prospectively. In our
 considered opinion, the postulates made in the said judgment
 can be best understood from paragraphs 20 and 21 of the
 said judgment. They read as follows :
                                                                 F
      "20) Thus, we hold that condemned prisoners also have
      a right to dignity and execution of death sentence cannot
      be carried out in a arbitrary, hurried and secret manner
      without allowing the convicts to exhaust all legal
      remedies.                                                 G
      21) We find that the procedure prescribed by the High
      Court of Allahabad in PUDR's case (supra) is in
      consonance with Article 21 of the Constitution. While
      executing the death sentence, it is mandatory to follow    H




                                                                  . I
686       SUPREME COURT REPORTS                 [2015] 12 S.C!R.


A         the said procedure and it is also necessary for the
          authorities to keep in mind the guidelines contained in
          the judgment of this Court in Shatrughan Chauhan's case
          (supra)."
 B,,..    28. Thus viewed, it would become a declaration of law
   under Article 141 of the Constitution and unless the Court says
   it is prospectively applicable, it would always be deemed to
   be applicable. However, it is also to be seen what is the
   purpose and purport behind the said principle and whether
 c that would affect the issuance of death warrant in this case.
   The Court has held that sufficient notice is to be given to the
   convict before issuance of death warrant by the Sessions Court
   so that it would enable him to consult his advocates and to be
   represented in the proceedings. That being the purpose, it
 D has to be viewed in the present exposition of facts. In this
   case, after the warrant was issued, though it has been served
   on the petitioner on 13.07 .2015, yet he had filed the curative
    petition on 22.05.2015 and, therefore, he cannot take the plea
    that he had not availed the legal remedies. The curative
 E petition, as has been mentioned earlier, has been dismissed
    on 21.07.2015. In our view, the purpose behind the said
    mandate has been complied with in this case. We may explain
    slightly elaborately. In Shatrughan Chauhan's case, after the
    appeal was dismissed, warrant was issued six days later.
 F Indubitably, that was not in accord with any principle in such a
    case. Needless to say, the same principles would be
    applicable but in the case at hand, the said principles cannot
    be stretched to state that the issuance of warrant by the TADA
    Court would be void on the basis of non-compliance of one of
 G the facets of the procedure. We are inclined to hold so as the
    petitioner had availed series of opportunities to assail the
    conviction and as accepted he was offered ten days when the
     review petition was heard.
 H         29. We had already stated that we would be dealing
 YAKUB ABDUL RAZAK MEMON v. STATE OF MAHARASHTRA, 6-8'7
  THR. THE SECY, HOME DEPARTMENT [DIPAK MISRA, J.]

  with the facet of second mercy petition which has been               A
  submitted on 22.07.2015. It is urged b-y Mr. Raju
  Ramach and ran, learned senior counsel for the petitioner, and
  Mr. Andhyarujina and Mr. Grover supporting him that the
  submission of delineation of mercy petition is a constitutional
  right as per Articles 72 and 161 of the Constitution of India. To    B
  buttress the said submission, they refer to few passages from
  Chauhan's case. In the said case, it has been stated that it is
  a constitutional right. A convict, after his conviction, at any
  stage, can make a representation to the constitutional authority
  seeking pardon or remission or other reliefs as have been            C
  provided under the said Articles. In the instant case, the brother
  of the petitioner had submitted the mercy petition to the
  President of India. The petitioner was absolutely in know of
  the same. He was communicated by the competent authority
                                                                       0
  that the President of India has rejected the same on
  11.04.2014. A contention has been raised that it was tlie
  brother who had submitted the mercy petition and not the
  petitioner. The said fact is accepted and is also evident from
  the communication dated 07.08.2013 to the Superintendent,            E
  Central Jail, Nagpur. There cannot be any cavil that another
  mercy petition can be filed in certain situations. It is put forth
  by Mr. Raju Ramachandran that the petitioner has taken
  additional grounds which include suffering from schizophrenia.
  It is urged they are to be considered under the Constitution by      F
  the President of India. Mr. Rohtagi, learned Attorney General,
- has disputed the same.

        30. We are obligated to state that dealing with the mercy
 petition is by the Executive. True it is, on certain limited grounds, G
 as per Shatrughan Chauhan (supra), it can be challenged.
 We need not delve into that realm. After the first mercy petition
 was rejected, the petitioner did not challenge that. He has
 submitted the mercy petition, as per his version, on
 22.07.2015_ How that mercy petition is going to be dealt with, H
688          SUPREME COURT REPORTS                   [2015] 12 S.C.R.


A we are not inclined to dwell upon the same. We only hold that
  issuance of death warrant is in order and we do not find any
  kind of infirmity in the same.

          31. In view of the aforesaid analysis, we conclude that
 B the curative petition which is decided by three senior most
   Judges of this Court cannot be flawed and the issue of death
   warrant by the TADA Court on 30.04 2015 cannot be found
   fault with. In the result, the writ petition, being sans merit, stands
   dismissed.
 c
      Devika Gujral                                Writ petition dismissed.