Dave J. versus Joseph J. as #YakubMemon hearing takes interesting turn

Yakub Memon’s petition in the Supreme Court challenging the death warrant issued against him by TADA court took a dramatic turn today. The two judges hearing the case passed different verdicts, resulting in the case being sent back to Chief Justice HL Dattu. The Chief Justice of India will now place it before a new Bench..Interestingly, Memon filed a second writ petition today. The first writ petition filed by Memon assails the death warrant issue by the TADA court on April 30. One of the main contentions in that petition is that the death warrant was issued before Memon’s curative petition was decided and is hence in violation of the procedure established by law..However, when the matter was heard yesterday, an interesting fact had come to light – that two out of the three judges who had heard and dismissed the review petition (Justice Jasti Chelameswar and Justice Kurian Joseph) were not made part of the Bench which heard the curative petition. Justice Kurian Joseph asked Attorney General Mukul Rohatgi to clarify this issue..Memon, then filed a new petition today in the light of this new fact. When Senior Advocate Raju Ramachandran requested the court to take this new petition on record, Justice Dave refused. Justice Dave made it clear right at the beginning that he will not entertain this new petition while Justice Joseph was inclined to hear the case..Ramachandran then proceeded to make his submissions on this new issue. He argued that since Justice Joseph and Justice Chelameswar were not part of the curative Bench, the ‘procedure established by law’ has not been followed. The reference to “judgement complained of” in Rule 4 of Order 48 of the Supreme Court Rules, 2013, he argued, does not mean the main judgment alone but also includes the review judgment..“The curative Bench should not be composed of judges who are entirely strangers to the lis. To adopt an interpretation that “judgment” [in Rule 4 of Order 48] refers only to the main judgment and not review judgment is incorrect. To exclude two judges who were part of the review would amount to placing my curative before a bench of strangers.” .Ramachandran, therefore, contended that the procedure established by law has not been followed in the instant case and, therefore, Article 21 stood violated..Attorney General Mukul Rohatgi argued that this argument should not be allowed since, the same has not been averred in the first writ petition and the new petition is not on record yet. He also argued that an Article 32 writ petition is not maintainable against a curative petition. Regarding Rule 4 of Order 48, Rohatgi argued that the “judgment” referred to in the same, is the main judgment and not the review judgment..After a lengthy hearing of two hours, Justice Dave proceeded to dismiss the petition. Justice Joseph however chose to accept Memon’s arguments and held that non-circulation of the curative petition to Justice Chelameswar and himself amounted to a violation of Rule 4 of Order 48 and hence the petitioner’s right under Article 21 has been violated. He, therefore, stayed the execution of death warrant..In an order in stark contrast to Justice Dave’s, Justice Joseph stated the following:.“…the curative petition has to be circulated to three senior most judges and the judges who heard the judgment complained of. In the instant case, the judgment complained of is the judgment in review and the judges who heard it are Justice Anil R Dave, Justice Jasti Chelameswar and Justice Kurian Joseph. But the curative petition has been circulated to only the three senior most judges. Therefore, there is a procedural violation. Once it is found that that the procedure has not been followed, there is an error apparent on the face of record. …because the curative petition itself has not been decided properly, that itself has to be cured first. Otherwise, there is a violation of Article 21..Learned Attorney General contended that this issue has not been contended in the petition. I don’t think such a technicality should stand in the way when doing justice. After all law is for man and a repository of such high Constitutional powers as this court should not be rendered powerless. Hence, the curative petition needs to be considered afresh in terms of Rule 4 of Order 48.”.Due to the split verdict, the Bench ordered that the writ petition be placed before Chief Justice to constitute a new Bench to hear the writ petition..At the end of the hearing, Justice Dave did not hide his disappointment as he remarked that,.“It has been said in Mahabharat or Manusmriti, if a king does not punish the sinner, the sin will fall on the king.”.To which Raju Ramachandran retorted,.“You have said this during the hearing of another case also.”.Subsequently, the matter was mentioned before Chief Justice Dattu at 2 pm. Justice Dattu agreed to constitute a new Bench but refused a stay on the execution of Memon..The Outcome.The writ petition will now be heard by a new Bench comprising Justices Dipak Misra, Prafulla C Pant and Amitava Roy in court room 4 as item 2. The said Bench can resort to the following:.Dismiss the petition.Pronounce that the administrative decision of the Chief Justice in not circulating the curative petition to Justices Kurian Joseph and Jasti Chelameswar was wrong and direct the curative petition to be heard afresh in accordance with Rule 4 of Order 48 of the Supreme Court Rules, 2013. Consequently, the death warrant issued by the TADA court will stand cancelled. Subsequently, if the curative petition is dismissed once again, the TADA court can issue a fresh death warrant subject to the procedure established. If the curative is allowed, then the main judgment will stand overturned.Pronounce that the TADA court was wrong in issuing death warrant before curative petition was heard and, hence, quash the warrant whereupon a fresh death warrant has to be issued by the TADA court in accordance with the procedure established by law.Hear at length on the legal issue pertaining to the interpretation of the term “judgment complained of” in Rule 4 of Order 48 and then proceed to decide on the individual issue of Yakub Memon which might extend the proceedings and buy time for Memon.