New Delhi:With less than 24 hours left for the time assigned for 1993 Mumbai blasts convict Yakub Memon's hanging, uncertainty still prevails over whether the death sentence will be commuted.
A three-member bench of the Supreme Court will take up the 1993 blast convict's plea against his death warrant on Wednesday. This hearing comes after the earlier two-judge bench of Justices AR Dave and Kurian Joseph was divided in its opinion and left it to Chief Justice of India HL Dattu to set up a larger bench to decide if Yakub's execution needs a rethink. Yakub is scheduled to be hanged on Thursday morning.
While Justice Dave found no merit in Yakub's petition, Justice Kurian said the curative petition needs to be heard again as due process was not followed. Yakub has challenged the death warrant saying it was issued before his curative petition was heard by the SC.
The Chief Justice of India has constituted a larger bench of Justices Dipak Misra, Prafulla C Pant and Amitava Roy to decide the destiny of Memon who is the the lone death row convict in the 1993 Mumbai blasts case.
The new bench on Wednesday 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.
Uncertainty for Memon aggravated on Tuesday as Justice Dave dismissed his plea without staying the death warrant while 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 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". The judge said in such circumstances, the death warrant has to be stayed.
This prompted Memon's counsel to ask Justice Dave to add a line on staying the death warrant, which he refused. "Sorry, I will not like to be part of staying the death warrant. Let CJI decide," Justice Dave said.
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