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Justified? Case of Yakub Abdul Razak Memon vs State Of Maharashtra

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 controversial case.

Facts

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.

Issues
  1. Whether impugned Judgement is a judgement?
  2. Can Special Judge rely on retracted confessions while delivering judgement?
  3. Can the prosecution rely on statement of an approver?
  4. Is Article 21 violated?
  5. Can death warrant be executed while mercy petition to the Governor of Maharashtra is pending?
  6. Was he to get 14 days’ time to assail the rejection of the mercy petition?

Arguments
  1. Counsel for Appellant said that the impugned judgment is not a “judgment” in terms of some Sections[1] 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.
  2. 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,[2] 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 force.
    Confession is a substantive evidence against the maker and in case of conspiracy cases, against the co-accused as well.[3]
  3. 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.
     
  4. Petitioner contended that Supreme Court has approved Peoples' Union for Democratic Rights v. Union of India[4] 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
     
  5. 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.
     
  6. 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[5] 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[6] and challenge the same in Court.

Judgement
  1. 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.

    Taking 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.
     
  2. Admissibility of confession against co-accused under Section 15 of TADA was considered in State of Tamil Nadu v. Nalini[7],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[8],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.[9] This is for exceptional cases where the Court is satisfied that no corroboration in needed to base conviction.
     
  3. 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 subsequent events.

    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.
     
  4. In Peoples' Union for Democratic Rights v. Union of India [10],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.
     
  5. 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.
     
  6. 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[11] 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.

End-Notes:
  1. The Code Of Criminal Procedure, 1973 (Act No. 2 Of 1974) ss. 353, 354, 362, 363
  2. (2001) 8 SCC 257
  3. CBI v. Nalini, (1999) 5 SCC 253
  4. PIL No.57810 of 2014.
  5. (2014) 3 SCC 1.
  6. The Constitution of India, art. 72
  7. AIR 1999 DC 2640.
  8. Jameel Ahmed v. State of Rajasthan, (2003) 9 SCC 673.
  9. Mohmed Amin vs. Central Bureau of Investigation, (2008) 15 SCC 49
  10. Supra note 1.
  11. Supra note 6.

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