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A three-judge bench of the Supreme Court on Wednesday disagreed with Judge Kurian Joseph that correct procedure was not followed by the three seniormost judges of the apex court in dismissing the curative petition of Yakub Memon.
He was of the view that the curative petition should be heard afresh and it should have been referred to the bench comprising Anil Dave, J Chelameswar and himself, which had decided the second review petition of Memon. This was not accepted by a three-judge bench headed by Dipak Misra. The larger bench accepted the submission of Attorney General Mukul Rohatgi that the SC rules entitle the three seniormost judges to decide a curative petition, as it emanates from the main judgement complained of and not the review petition.
“The submission canvassed by the Attorney General deserves substance and accordingly we hold that the curative petition decided by three judges cannot be regarded as void or nullity or it suffers from any impropriety,” the bench, also comprising Judges Prafulla Chandra Pant and Amitava Roy, said. “We are absolutely in concurrence that judgements are not to be read as statutes and thus have to be read in proper perspective. Thus, we disagree with the view expressed by Justice Kurian Joseph in this regard,” it further said.
“On our studied scrutiny of paragraphs (Rupa Hurra judgement), it is a requirement that the curative petition has to be circulated to the three seniormost judges of this court and also to the judges of the judgement complained of, if available.”
"According to the Hurra principle, the second review is not permissible. However, curative petition is evolved by the apex court in the exercise of power under Article 142 of the Constitution to avoid miscarriage of justice and to avoid that there is no violation of natural justice," the bench said.
