Judges pronounce split verdict on Memon's petition to stay execution

Will Yakub Memon, the lone death row convict in 1993 Mumbai blasts case, be sent to gallows at dawn in Nagpur jail on July 30? The suspense has just got prolonged and a decision is only expected by Wednesday afternoon, hours before the time fixed for hanging. Things got down to the wire as with a two-judge bench of justices AR Dave and Kurian Joseph on Tuesday pronouncing split verdict on Memon's petition seeking stay of his execution, Chief Justice HL Dattu referred the case to a larger three judge bench.

The new bench of justices Dipak Misra, Prafulla C Pant and Amitava Roy will have the task of deciding whether to stay the death warrant issued by TADA court in Mumbai on April 30 and go into the merits of Memon's petition which has claimed that the warrant was issued even before he exhausted all legal remedies before the court.

Uncertainity over Memon's fate aggravated on Tuesday, as justice Dave dismissed his plea without staying the death warrant and justice Kurian differed and favoured a stay.

"There will be no order in law if one judge has stayed it (death warrant) and the other has not, the bench was told by Attorney General Mukul Rohatgi when it wanted to know the legal position arising out of the divergence of views between the two judges on the issue.

Both Attorney General Mukul Rohatgi and other senior advocates, including Raju Ramachandran, appearing for Memon, were unanimous on the legal situation that needed to be addressed by larger bench with the indulgence of the CJI.

Justice Dave was of the view that there was no infirmity in the dismissal of curative petition of Memon on July 21 and it was open for the Maharashtra governor to take a call on his mercy plea as the condemned prisoner has exhausted all available legal remedies.

However, justice Kurian, who himself had raised a point which was not in Memon's plea that the apex court had not followed correct procedure in deciding his curative petition, said this defect needs to be cured and the curative petition has to be heard afresh.

"I express my inability to agree with Justice Dave as there is a procedural violation in the way curative petition was decided. Once it is found that the procedure established under law is not followed while dealing with the curative petition, that too when the life of a person is concerned, and there is error apparent on the face that the mandatory process has not been followed, then such defects need to be cured", justice Kurian said calling for a fresh consideration of the curative petition.

Justice Kurian was of the view that SC did not follow the procedure while listing Memon's curative petition which was dismissed on July 21. Memon's review plea was dismissed by a three judge Bench consisting of Justices Anil R Dave, J Chelameswar and Kurian Joseph. But the curative petition was dismissed by a three-judge Bench of the Chief Justice HL Dattu, TS Thakur and justice Dave. "As per the SC rules, curative petitions shall be first circulated to a bench of three senior-most judges and the judges who passed the judgment complained of, if available. This rule has not been followed in this case," he said.