The hanging of one of the accused of the 1993 Bombay Blasts,Yakub Memon, dealing
with issues of the working of the Judiciary and the role which the principles of
Natural Justice played, if at all. This case was controversial from the
beginning, with the alleged affiliation with Dawood Ibrahim, the alleged revenge
for demolition of Babri Masjid, to the end, showing a side of the public which
believes that the terrorist should not have been.
It is to be noted that the
following is not an attack to the Indian Judiciary, rather it is done with the
best interest to the Judicial system in India; It is take into account the
various provisions of The Code of Criminal Procedure, The Indian Evidence Act
and The Constitution of India along with The Terrorist and Disruptive Activities
(Prevention) Act into what would have been an alternative outcome of such a
On 12th March 1993, series of 12 bomb explosions took place at twelve places in
Bombay with 257 lives lost,713 persons seriously injured and destruction of
Rs.27 crore of properties.
Yakub Abdul Razak Memon ran away 2 days prior to the blasts but was arrested at
New Delhi Railway Station on 05.08.1994 but according to him, he surrendered
himself to the police at Kathmandu in Nepal on 28.07.1994.
The trial was conducted under a Special Court by Justice P.D. Kode under
Terrorist and Disruptive Activities (Prevention) Act,1987 and found him guilty
on 27.07.2007 of criminal conspiracy to carry out terrorist activities and
murder,aiding and abetting terrorist attacks,illegal possession and
transportation of arms and ammunition with intent to endanger lives.
- Whether impugned Judgement is a judgement?
- Can Special Judge rely on retracted confessions while delivering judgement?
- Can the prosecution rely on statement of an approver?
- Is Article 21 violated?
- Can death warrant be executed while mercy petition to the Governor of
Maharashtra is pending?
- Was he to get 14 days’ time to assail the rejection of the mercy
- Counsel for Appellant said that the impugned judgment is not a “judgment”
in terms of some Sections of the Criminal Procedural Code,1973 (herein,
Code) since reasons for conviction and sentence were not provided to the
Appellant along with the order of conviction and sentence.
Counsel for CBI said that irregularities in passing of judgement is curable,
unless it leads to failure of justice, and that he was given proper hearing
including before passing the sentence.
- The prosecution mainly relied on the evidence of Approver (PW-2), which
needs corroboration, conviction based on his sole testimony is
unsustainable. Absence of provision in TADA for grant of pardon.
CBI relied upon Harshad S. Mehta v. State of Maharashtra, where a similar
question was placed which the Court rejected stating Chapter XXIV of the Code
deals with general provisions as to inquiries and trials and TADA court being of
original criminal jurisdiction enjoys all such powers except those specified.
Also, section 4(2) of the Code says that all offences under other laws shall be
dealt in the same manner but subject to regulations under other enactments in
Confession is a substantive evidence against the maker and in case of conspiracy
cases, against the co-accused as well.
- Special Judge heavily relied on the confessional statements of five
accused, where four had retracted their statements, thereby, the conviction
and sentence cannot be sustained.
CBI contended that the confessions are admissible as retraction of truthful
confessions cannot be accepted.
- Petitioner contended that Supreme Court has approved Peoples' Union
for Democratic Rights v. Union of India and therefore, the convict
has to be heard at the time of issuance of warrant recognising natural
justice. The learned Attorney General would contend that the judgment was
pronounced on 27.05.2015 whereas, the warrant was issued on 30.04.2015 and
therefore TADA Court couldn’t have applied the same precedent
- Petitioner contended that Yakub had submitted a second mercy petition to
the Governor of Maharashtra on 22.07.2015 and until that is decided, the warrant
cannot be executed.
- Mr.Anand Grover contended that Yakub is entitled in law to challenge the
mercy petition received by the President on 29.07.15 and if rejected there has
to be a minimum period of 14 days between its rejection being communicated to
the petitioner and his family and the scheduled date of execution. Also
submitted that as per Shatrughan Chauhan v Union of India he is entitled to
claim commutation of death sentence to life imprisonment on the basis of
supervening circumstances. Learned Attorney General said that such mercy
petitions which are submitted, and later challenged on its rejection, pose the
danger of ad infinitum, that at the drop of a hat, any new fact is added and the
President is expected to deal with it and challenge the same in Court.
- Reasons for conviction and the sentence were not provided to the
Appellant along with the passing of such on 12.09.2006 and 27.07.2007
respectively, only the ‘operative portion’ was read out. He was apprised
that the final order of the remaining accused will take some time and that
copy of judgement and order will be supplied to him after the same is completed.
note of the number of persons involved, and mammoth evidences to be considered,
unless the full judgment containing all the details are considered, the same
cannot be supplied to the accused. Also keeping in mind the sensitivity of the
case and to refrain from any external disturbances for the rest of the accused
in the trail, it seemed fit for the Special Judge to deliver the full judgement
once everything was over.
- Admissibility of confession against co-accused under Section 15 of TADA
was considered in State of Tamil Nadu v. Nalini,this Court held that such
confessions are substantive evidence against the co-accused and in the absence
of proof to the contrary, the Designated Court would have full power to base a
conviction of the co-accused upon the confession made by another accused.
Voluntary confession deserves the highest credit as it flows from the highest
sense of guilt. On examination of the records, all due safeguards were observed
under Section 15 and the Yakub could be convicted solely on the basis of the
confession. But, also there were many evidences which showed his role, other
than the confessions. In a case,Supreme Court held that Section 30 of the
Indian Evidence Act,1872 has no role to play in deciding the admissibility of a
confession recorded under Section15 of TADA.
Confessional statements recorded
satisfying the mandatory provision of Section 15 of TADA and the Rules, found by
the court having been made voluntarily and truthfully can be sufficient to base
conviction on the maker of the confession. However, the court may look
corroboration if confession is to be used against a co-accused as a matter of
prudence. This is for exceptional cases where the Court is satisfied that no
corroboration in needed to base conviction.
- The critical analysis of the evidence of the Approver makes it clear
that though he did not mention about the participation of Yakub in all the meetings,
he identified him in court as who assisted Tiger Memon at the Al-Hussaini
Building for all preparations, viz, purchasing tickets, getting visas, sending
people to Pakistan for training, their arrival, their payments, etc which
clearly prove the involvement of Yakub in the conspiracy as well as in
A perusal of the entire evidence of approver showed that at no point he acted
under pressure to become an approver. He withstood the lengthy
cross-examination.PW-2’s testimony runs into hundreds of pages covering all the
aspects starting from initial conspiracy and ending with execution of blasts on
12.03.1993 which inspires confidence in his testimonial.
- In Peoples' Union for Democratic Rights v. Union of India ,it said
that notice ought to be given before issuance of death warrant keeping in mind
the principles of Natural Justice, Article 21.In this case, after the warrant
was issued on 30.04.2015,he had already filed the curative petition on
22.05.2015 though it has been served later on 13.07.2015 and therefore,he cannot
take the plea that he had not availed the legal remedies. Court held that the
purpose behind the said mandate had been fully complied with.
- How that mercy petition is going to be dealt with was to be done by the
Executive. They only dealt with the matter that issuance of death warrant
was in order and didn’t find any infirmity in the same.
- The Court held that the petition on 30.07.15 was a clear manipulation of
Rule of law. Another mercy petition was sent to the President, a day before
the date of execution. On hearing ‘rumours’ of its rejection, claimed the
right to challenge it and to have 14 days’ time. The only exception
enthusiastically carved out Appellant was that he’s entitled to get 14 days’
time to assail the rejection of the mercy petition.
These 14 days concept is taken from Shatrughan
Chauhan where at least 14 days is mandated for the accused to deal with his
worldly affairs and make his peace with God. When the first mercy petition
submitted by Yakub’s brother, Suleman, was rejected on 11.04.2014, there was
sufficient time available to the petitioner to make arrangement for his family
members to meet him in prison and make worldly arrangements.
It has been
apprised that he has exhausted all his legal remedies and that the family was
allowed to meet the petitioner whenever they desired as per the Jail Manual. It
was not accepted that the mercy petition to the President was preferred for the
first time and that 14 days’ time should be granted.
- The Code Of Criminal Procedure, 1973 (Act No. 2 Of 1974) ss. 353, 354,
- (2001) 8 SCC 257
- CBI v. Nalini, (1999) 5 SCC 253
- PIL No.57810 of 2014.
- (2014) 3 SCC 1.
- The Constitution of India, art. 72
- AIR 1999 DC 2640.
- Jameel Ahmed v. State of Rajasthan, (2003) 9 SCC 673.
- Mohmed Amin vs. Central Bureau of Investigation, (2008) 15 SCC 49
- Supra note 1.
- Supra note 6.