India
The larger bench accepted the submission of Attorney General Mukul Rohatgi that the Supreme Court rules entitle the three senior most judges to decide curative petition as it emanates from the main judgement complained of and not the review petition.
Updated : Oct 02, 2015, 03:39 PM IST
A three-judge bench of the Supreme Court on Wednesday disagreed with Justice Kurian Joseph that correct procedure was not followed by the three senior-most judges of the apex court in dismissing the curative petition of Yakub Memon, the sole death row convict in the Mumbai blasts case.
Justice Kurian had differed on Tuesday with Justice A R Dave and dug out a point on the issue of curative petition not raised in the petition seeking stay of the death warrant for execution of Memon.
He was of the view that the curative petition of Memon should be heard afresh.
Justice Kurian's view that the curative petition should have been referred to the bench, comprising Justices Dave, J Chelameswar and himself, which had decided the second review petition of Memon was not accpeted by a three-judge bench headed by Justice Dipak Misra.
The larger bench accepted the submission of Attorney General Mukul Rohatgi that the Supreme Court rules entitle the three senior most judges to decide curative petition as it emanates from the main judgement complained of and not the review petition.
"The submission canvassed by 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 Justices Prafulla Chandra Pant and Amitava Roy, said.
"We are absolutely in concurrence that judgements are not 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 senior-most 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.
The apex court said the principle of review requires relook, revisit of principal judgement which in this case was of March 21, 2013 by which this court had upheld the conviction and death sentence awarded by a TADA court to Memon.
"While dealing with the curative petition, it is the principal judgement or the main judgement that comes under attack," the bench said adding that Curative petition is filed against the judgement and petition under Article 32 cannot be filed against the order of review or curative petition.
Noting the submission of the Attorney General that the three senior-most judges are required to go into the curative petition by circulation, the bench said "it cannot become void."
"As a sequitur, decision on curative petition by three senior-most judges of this court has to be regarded as correct and not vitiated by any procedural irregularity," the bench held while disagreeing with Justice Kurian that the curative petition of Memon has to be heard afresh.
In a split verdict, Justice Kurian had said, "I do not think that technicality should stand in the way of justice being done". He had said it has been found that the procedure prescribed under the law has been violated while dealing with Memon's 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," Justice Kurian had said.
"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," he had said.