Supreme Court - Daily Orders
Mohd. Arif @ Ashfaq vs Registrar, Supreme Court Of India on 19 January, 2016
Author: Chief Justice
Bench: Chief Justice, Jagdish Singh Khehar, J. Chelameswar, A.K. Sikri, Rohinton Fali Nariman
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
REVIEW PETITION (CRL.) NO.692 OF 2015
IN
WRIT PETITION (CRL.) NO. 77 OF 2014
MOHD. ARIF @ ASHFAQ PETITIONER(S)
VERSUS
REGISTRAR, SUPREME COURT OF INDIA AND ORS. RESPONDENT(S)
O R D E R
A bunch of writ petitions were filed in this Court and referred to a Constitution Bench by an order dated 28.04.2014 to answer two basic issues that fell for determination, namely, (1) whether cases in which death sentence has been awarded should be heard by a Bench of at least three if not five Hon'ble Judges of this Court and
(ii) whether hearing and disposal of the Review Petitions in death sentence cases should not be by circulation but should only be in open court and whether Order 40 Rule 3 of Supreme Court Rules, 1966 should to the extent the said Rule does not permit an open court hearing be declared unconstitutional inasmuch as persons on death row are Signature Not Verified Digitally signed by ASHOK RAJ SINGH Date: 2016.02.25 14:32:39 IST denied such a hearing.
Reason:
By a majority judgment of 4:1, this Court answered the first question in the affirmative, keeping in view an amendment to Order 6 Rule 3 of the Supreme Court Rules, 2013 which had introduced a provision to the effect that every case arising out of death sentence awarded to the convict shall be heard by a Bench consisting of not less than three Judges. This Court held that in the light of the said amendment all cases in which death sentences are awarded by the High Courts and appeals against such death sentences are pending in the Supreme Court, shall be heard by a Bench of three Hon'ble Judges. On the second issue, this Court observed:-
“No doubt, the Court thereafter reminded us that the time has come for proper evaluation of oral argument at the review stage. However, when it comes to death penalty cases, we feel that the power of the spoken word has to be given yet another opportunity even if the ultimate success rate is minimal”. Having said so this Court held that the limited right to oral hearing of the review petitions shall be applicable only in pending review petitions and petitions filed in future. The said right was also made available to case where a review petition stood dismissed but the death sentence was not yet executed. In such cases the petitioners were given the liberty to apply for reopening of their review petitions within one month from the date of judgment delivered by this Court. Cases in which even a curative petition stood dismissed were however singled out for denial of that limited hearing relief. The present review petition seeks review of the order passed by this Court to the extent limited hearing in open court is denied in cases where the curative petition filed against the judgment and order of this Court also stood dismissed.
The petitioner's it is common ground is one such case and perhaps the solitary case in which after the dismissal of the review petition Curative Petition No.99-100 of 2013 filed by the petitioner was dismissed by circulation by order dated 23.03.2014. In the light of the said dismissal, the petitioner who stands sentenced to death is not qualified for an open court hearing in support of his review petition dismissed earlier by circulation.
Mr. Basant, learned senior counsel for the review petitioner made a two-fold submission before us. Firstly, it was contended that the classification made by this Court in the matter of extending or denying open court hearing was artificial inasmuch as this Court had overlooked the fact that Curative Petitions are maintainable only on two limited grounds recognized by this Court in Rupa Ashok Hurra vs. Ashok Hurra & Anr. [(2002) 4 SCC 388], where this Court declared:
“51. Nevertheless, we think that a petitioner is entitled to relief ex debito justitiae if he establishes (1) violation of the principles of natural justice in that he was not a party to the lis but the judgment adversely affected his interests or, if he was a party to the lis, he was not served with notice of the proceedings and the matter proceeded as if he had notice, and (2) where in the proceedings a learned Judge failed to disclose his connection with the subject-matter or the parties giving scope for an apprehensions of bias and the judgment adversely affects the petitioner” Dismissal of Curative Petition does not in the light of the above argued Mr. Basant Kumar address any issue relevant to the merits of a given case. Denying to a convict faced with death penalty, an open court hearing on the ground that his Curative Petition stood dismissed would according to Mr. Basant Kumar not be a valid justification having regard to the object sought to be achieved by this Court's judgment recognising the right to such a hearing. Alternatively, it was submitted that certain important aspects and issues that ought to have been argued on behalf of the petitioner in the review petition on the merits of the controversy were unfortunately left out of the review petition hence not effectively projected before this Court. An open court hearing however limited in the matter granted for such a hearing will remove that deficiency while permitting the petitioner to place all such aspects before the Court as are necessary to prove his innocence in the matter. He urged that hearing given to the petitioner in the open court on the analogy of a similar concession extended to other convicts would prevent any miscarriage of justice implicit in the denial of such a hearing and help this Court in coming to the correct conclusion.
Mr. Tushar Mehta, learned Additional Solicitor General per contra submitted that this Court had made a conscious departure from the ordinary course suggested only to ensure that matters that stood finally disposed off do not get reopened and the process of adjudication does not remain open ended indefinitely. Having said that Mr. Mehta did not dispute that the grounds available to the petitioner in a Curative Petition are limited and that out of the cases before this Court the petitioner's case may be the solitary one that would fall in the negative list where no open court hearing will be given.
This Court as noticed earlier has accepted in principle the importance of an open court hearing in review petitions which are in the ordinary course dealt with and decided by circulation. That is because those seeking such a hearing are facing the extreme penalty known to law. The irreversibility of the consequences flowing from a judgment of this Court is perhaps one of the main reasons why this concession of an open court hearing in a review petition has been extended to death convicts. The question all the same is whether such a concession which tends to ensure removal of any error in the view taken by this Court and consequently failure of justice by an erroneous conclusion or inference, should be denied to a party whose curative petition was considered and dismissed as is the position in the case at hand. Mr. Basant is in our view right when he argues that a curative petition is maintainable only on limited grounds. Such being the case, the fact that the curative petition filed by the petitioner was dismissed by this Court by circulation without an open hearing should not in our view deprive the petitioner from an open court hearing of his review petition. The curative petitions it is common ground do not review or re-appraise the material available on record.
In the circumstances therefore and especially in view of the fact that the petitioner is perhaps the only person that will suffer the denial of the right to an open court hearing, we are inclined to modify the judgment on review and direct that the petitioner shall also be entitled to seek reopening of the dismissal of the review petitions for an open court hearing within one month from today. We permit the petitioner to raise all such additional grounds in support of the said review petition as may be legally permissible to him. With the above observation, this review petition is allowed to the extent indicated above.
.........................CJI.
(T.S.THAKUR) ...........................J. (JAGDISH SINGH KHEHAR) ...........................J. (J. CHELAMESWAR) ...........................J. (A.K. SIKRI) ...........................J. (ROHINTON FALI NARIMAN) NEW DELHI, JANUARY 19, 2016.
ITEM NO.301 COURT NO.1 SECTION X
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
R.P.(Crl.) No. 692/2015 IN W.P.(CRL)NO. 77/2014
MOHD. ARIF @ ASHFAQ Petitioner(s)
VERSUS
REGISTRAR, SUPREME COURT OF INDIA AND ORS Respondent(s)
Date : 19/01/2016 This petition was called on for hearing today. CORAM :
HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE JAGDISH SINGH KHEHAR HON'BLE MR. JUSTICE J. CHELAMESWAR HON'BLE MR. JUSTICE A.K. SIKRI HON'BLE MR. JUSTICE ROHINTON FALI NARIMAN For Petitioner(s) Mr. Basant R., Sr. Adv.
Mr. Md. Irshad Hanif, Adv.
Mr. Aarif Ali, Adv.
Mr. Nishant Gokhale, Adv.
Mr. Gopal Sankarnarayanan, Adv.
Mr. Himanshu Agarwal, Adv.
Mr. Karthik Ashok, Adv.
For Respondent(s) UPON hearing the counsel the Court made the following O R D E R The review petition is allowed in terms of the signed order.
(Ashok Raj Singh) (Rajinder Kaur)
Court Master Court Master
(Signed Order is placed in the file)