SC sets up three-judge Bench to decide Yakub's fate today

A three-judge bench was on Tuesday set up in the Supreme Court to decide the fate of Yakub Memon, the lone death row convict in the 1993 Mumbai blasts case, after a two-judge bench was divided on his plea seeking a stay of his execution scheduled for Thursday.

In the wake of a disagreement between judges A R Dave and Kurian Joseph on the issue, the matter was referred to Chief Justice of India (CJI) H L Dattu, who formed a larger bench of judges Dipak Misra, Prafulla C Pant, and Amitava Roy, to decide the destiny of Memon who will turn 53 on Thursday.

The new bench will on Wednesday have the task of deciding whether to stay the death warrant issued by a court in Mumbai on April 30 and go into the merits of Memon's petition, which has claimed the warrant was issued even before he exhausted all legal remedies before the court.

Uncertainity for Memon worsened on Tuesday, as judge Dave dismissed his plea without staying the death warrant while judge Joseph 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.

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 a larger bench with the involvement of the CJI.

Dave was of the view 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 had exhausted all legal remedies.

However, Kurian, who himself had raised a point which was not in Memon's plea that the apex court had not followed the 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 Dave to add a line on staying the death warrant, which he refused.

"Sorry, I will not like to be a part of staying the death warrant. Let the CJI decide," Dave said and quoted a couplet from Manu Smriti relevant to the issue.