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."
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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".
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.
After dictating the common order, Justice Dave recalled a 'Shloka' from "Manusmriti" which said that if a crime comes to the notice of the king and if he (the king) is not punishing the wrongdoer, then the sin of committing the crime will attach to him (king) and his progenies.