YAKUB ABDUL RAZAK MEMON versus STATE OF MAHARASHTRA, THR. THE SECRETARY, HOME DEPARTMENT AND OTHERS

Citation: [2015] 12 S.C.R. 661 · Decided: 29-07-2015 · Supreme Court of India · Bench: DIPAK MISRA · Disposal: Dismissed

Judgment (excerpt)

[20~5] 12 S.C.R. 661 
YAKUBABDULRAZAKMEMON 
v. 
STATE OF MAHARASHTRA, THR. THE SECRETARY, 
HOME DEPARTMENT AND OTHERS 
(Writ Petition (Crl.) No.129 of 2015) 
JULY29, 2015 
[DIPAK MISRA, PRAFULLA C. PANT 
AND AMITAVA ROY, JJ.] 
Supreme Court Rules, 2013: 
Order XLV/11rule.4(1) and (2) - 1993 Bombay bomb 
blasts - Conviction and death sentence - Stay of execution 
A 
B 
c 
of death sentence sought by writ petitioner - Question whether 
curative petition was decided by the Bench duly constituted D 
as per the rules - Held: The three senior-most Judges have 
to be parties to the Bench and the Judges of the 'Judgment 
complained of' are to be parties and if they are not available, 
it is the prerogative of the Chief Justice of India to include 
some other Judges; however, if it is dealt with by three senior-
E 
most Judges, as in this case by the Chief Justice of India 
and two senior-most Judges, the order would not become 
void. 
Order XLV/11 rule 4(1) and (2) - Judgment complained F 
of- Held: Solely be~ause the dismissal of the review petition 
has been nomenclatured as Judgment', it Will not come within 
the ambit and sweep of the concept of Judgment complained 
of'. 
Order I Rule 2(1 )(k) - Whether the term 'order' which G 
forms a part of the definition of Judgment' as stipulated under 
Order I Rule 2(1 )(k) would mean that the order in review or 
the judgment passed in the main judgment - Held: It is the 
principal judgment/main judgment. 
661 
H 
662 
SUPREME COURT REPORTS 
[2015] 12 S.C.R. 
A 
Sentence/Sentencing: 1993 Bombay bomb blasts -
Conviction and death sentence - Stay of execution of death 
sentence sought by writ petitioner - Plea of petitioner that 
there was procedural violation inasmuch as the TADA court 
on 30. 04. 2015 had issued death warrant directing execution 
B on 30. 7. 2015 while the curative petition was yet to be filed -
TADA court granted 90 days yet the petitioner was served 
only on 13.07.2015 which suffers from incurable procedural 
illegality and warrants quashment of death warrant- Held: In 
this case, after the warrant was issued, though it was served 
C on the petitioner on 13. 07. 2015, yet he had filed the curative 
petition on 22. 05.2015 and, therefore, he cannot take the plea 
that he had not availed the legal remedies - The curative 
petition was dismissed on 21.07.2015 - Petitioner had 
D availed series of opportunities to assail the conviction and 
was offered ten days when the review petition was heard-
The brother of the petitioner had submitted the mercy petition 
to the President of India - Petitioner was absolutely in 
knowledge of the same - He was duly informed about the 
E rejection of mercy petition on 11:04.2014 - Thus issuance 
of dE7ath warrant was in order. 
Dismissing the writ petition, the Court 
HELD: 1. While this Court exercises the jurisdiction 
F in respect of a curative petition, it is actually the principal 
judgment/main judgment, which is under assail. The said 
judgment is the main judgment and in actuality attaches 
finality to the conviction in a case and the matter of re-
examination is different. The curative petition is filed 
G against the main judgment which is really complained 
of. The three senior-most Judges have been categorically 
stated to be parties to the Bench and the Judges of the 
"judgment complained of" are to be parties and if they 
are not available,-it is the prerogative of the Chief Justice 
H of India to include some other Judges; however, if it is 
YAKUB ABDUL RAZAK ME MON v. STATE OF MAHARASHTRA, 663 
· THR. THE SECY, HOME DEPARTMENT 
dealt with by three senior-most Judges, as in this case A 
by the Chief Justice ol·lndia and two senior-most 
Judges, the order would not become void. In the instant 
case, the Judges, who delivered the main judgment 
admittedly were not available in office. If as a principle it 
is laid down that the Judges who decide the review in B 
the absence of the judges who have demitted the office, 
are to be made parties by a judicial imperative, that would 
not be appropriate .. A judgment is not to be read as a 
statute, but definitely a judgment has to be understood 
in proper perspective. Solely because the dismissal of C 
the review petition has been nomenclatured as 
'judgment', it will not come within the ambit and sweep 
of the concept of 'judgment complained of'. The 
dismissal of the curative petition by the three senior-
0 
most Judges of this Court has to be treated as correct 
· and no

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