Yakub Memon's mercy petition was rejected on Wednesday night by President Pranab Mukherjee after the Modi government advised him on such a course.
Barring any last-minute reprieve, Yakub Memon, the lone death row convict in the March 12, 1993 Mumbai blasts case, will be hanged at 7 am on Thursday morning with President Pranab Mukherjee rejecting his fresh mercy plea on Wednesday night on the advice of the Narendra Modi government and the Supreme Court earlier clearing all legal hurdles.
In a late night development, Yakub Memon's lawyers made another last ditch attempt to save him from the gallows when they moved the Supreme Court, seeking a stay of his hanging.
The fresh petition pleaded that an order be passed that the authorities should give Yakub Memon at least 14 days time for execution after the rejection of his mercy petition as per the apex court's guidelines.
Memon's hanging is scheduled for 7 am in the Nagpur Central Prison on his 53rd birthday as per the Terrorist and Disruptive Activities (Prevention) Act court's order even as prison sources said preparations were completed to carry out the execution amid tight security.
As suspense mounted on a day of fast paced developments on the fate of the chartered accountant and his lawyers making last ditch attempts to get a reprieve, President Mukherjee's decision came after he held consultations with Home Minister Rajnath Singh.
The confabulations at Rashtrapati Bhavan lasted over two hours after which the President took the decision to reject the petition that was filed by Yakub Memon. Home Secretary L C Goyal and Solicitor General Ranjit Kumar joined in the discussions.
In Mumbai, Maharashtra Governor Ch Vidyasagar Rao also rejected Yakub Memon's mercy plea filed last week.
Holding that there was 'no legal fallacy' and 'fault' in the death warrant issued against Yakub Memon in the blasts that killed 257 people and injured hundreds of people, the apex court said his last legal remedy by way of a curative petition was 'correctly' dismissed by the three senior-most judges on July 21.
A three-judge bench headed by Justice Dipak Misra held that his second mercy petition will not come in way of his execution on Thursday as he did not challenge the rejection of his first mercy petition by the President last year.
While clearing the decks by holding that the condemned prisoner has availed all legal remdies, the bench, also comprising Justices Prafulla Chandra Pant and Amitava Roy, rejected the plea that proper procedure was not followed in the issuance of the death warrant by the TADA court on April 30 for his execution on July 30.
Further, the bench differed with his counsel that the mandatory 14 days notice was not given by the Maharashtra government in communicating to him about his date of execution.
"Issuance of death warrant is in order. We do not find any kind of legal fallacy.In view of that, we conclude that the curative petition was decided by three senior-most judges of this court cannot be faulted," tthe judges said.
"The issue of death warrant by the TADA court on April 30 for the execution of death sentence on July 30 cannot be faulted. In the result writ petition sans merit and stands dismissed," the bench said after a day-long hearing.
While rejecting the contention that the death warrant was wrongly issued and without hearing Memon, the bench noted the sequence of events to demonstrate that he did not challenge the rejection of his first mercy petition by the President.
"After first mercy petition was rejected, he did not challenge it. On July 22, 2015, he filed another mercy petition. Whether he was entitled for such a second mercy petition or not during the pendency of the curative petition. How the mercy petition has to be dealt we are not inclined to go," the bench said.
"As far as compliance of 14 days for the execution of warrant from scheduled date of execution is concerned, it meets the time limit," the bench said, while accepting the submission of Attorney General Mukul Rohatgi who said Memon did not take the legal remedies of curative petition when his first review petition was dismissed.
The condemned prisoner did not move the apex court when the President had rejected his mercy petition on April 4, 2014 which was communicated to him on May 26, 2014.
While maintaining that a convict after his conviction can at any stage make representation to a Constitutional authority like a governor and the President for pardon and remission of sentence, the bench said the mercy petition on Memon's behalf was moved to the President of which he had knowledge.
"In the instant case, Suleman, brother of the convict, on his behalf, submitted a mercy petition to the governor which was later decided by the President on April 11, 2014 and communicated to Memon on May 26, 2014," the bench noted.
It said it was not going into the second mercy plea in which grounds of him suffering from schizophrenia have been raised along with the fact that new evidence in the light of an article by a former Research and Analysis Wing officer has been taken for grant of leniency which was disputed by the attorney general.
The bench noted the sequence of events since the rejection of the second review petition on April 9, to the dismissal of the curative petition on July 21, 2015.
Memon's senior counsel Raju Ramachandran submitted that there was a procedural violation in the issuance of the death warrant on April 30 by a TADA judge in Mumbai for his execution on July 30.
They said the death warrant was issued while the curative petition was yet to be filed.
Further, while the TADA court had granted 90 days notice for his execution, Memon was served with the notice about his execution on July 13 by the Maharashtra government, giving him just 17 days time before his execution, which suffers from incurable procedural irregularity, Ramachandran said.
The counsel for Memon also submitted that the second mercy petition to the governor was filed on July 22 and until it is decided, the death warrant cannot be executed.
While holding that there was no legal fault in the TADA court issuing the death warrant, the bench said the May 27, 2015 judgment in the Shabnam case, laying the guidelines for it, was not applicable with retrospective effect as the warrant was issued before the verdict.
Memon's lawyer had contended that non-application of the guidelines was in violation of Article 21 of the Constitution.
However, the bench said the "postulations laid in the Shabnam case held that sufficient notice has to be given to the convict before issuance of the death warrant so as to enable him to consult his advocate."
"That being the purpose, it has to be seen in the proper perspective of the case," the judges said and added the state government informed him about the execution on July 13 and the curative petition was filed on May 22 and therefore, "he cannot take the plea that he did not had the legal remedies."
Noting that the curative petition was dismissed on July 21, the bench said "In our view the purpose behind the said mandate has been complied in the case."
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