How to rectify injustice to Yakub? SC should take suo motu notice of Raman piece: Former Supreme Court judge Justice Harjit Singh Bedi // An Atrocity Devours All - MASEEH RAHMAN
I have with a sense of uneasiness read the news item “Yakub must not hang, we brought him back: Key RAW man in ’07”, published in The
Indian Express on July 24, 2015. To get further details, I read the complete
article and other related material on rediff.com and my uneasiness has been
transformed into a sense of outrage as I take all that is written to be correct
in the light of the outstanding record and character of the R&AW officer,
Mr B Raman, who wrote it. READ — 1993 Mumbai serial blasts: How the trail took
off Let me at the very beginning say that I am in principle against the
imposition of death penalty. It serves as no deterrent, as statistics worldwide
show, and on the contrary brutalises society.
My predilection, however, has had no bearing on my decisions
as a High Court and Supreme Court Judge for almost 21 years, as I have often
upheld the death penalty. The Supreme Court of India, as indeed courts all over
the free world, are agreed on the fact that all mitigating factors in favour of
an accused facing a capital sentence must be put before the court and that this
obligation rests equally on the prosecution as well. It also appears that some
commitment by the government or its agencies had been made to Yakub Memon and
that he had fully cooperated with the investigative agencies after his arrrest.
I take it that this commitment would relate to the sentence that he would
receive.
Mr Raman writes that these mitigating circumstances “in the
case of Yakub Memon and some other members of the family were probably not
brought to the notice of the court by the prosecution and that the prosecution
did not suggest to the court that these circumstances should be taken into
consideration while deciding on the punishment… in their eagerness to obtain
the death penalty”. He further concludes that the aura and outstanding
investigative work that the intelligence agencies had achieved would have been
enhanced yet further had they put all the mitigating circumstances before the
court.
The second disturbing aspect is the role of the public
prosecutor in such cases. The perception which has grown over the last few
years, and actively encouraged by some public prosecutors themselves, that they
are agents of the police, is completely misplaced. A public prosecutor is an
officer of the court and, as someone put it, “an agent of justice”. He
represents the crown (state), not the police. It is, in this background,
imperative that he should put all facts for and against an accused before the
court so that a just decision can be arrived at.
The Supreme Court in the case of Shiv Kumar versus Hukam
Chand decided on August 30, 1999 observed “that a public prosecutor is not
expected to show thirst to reach the case in the conviction of the accused
somehow or the other irrespective of the true facts involved in the case. The
expected attitude of the public prosecutor while conducting prosecution must be
couched in fairness not only to the court and to the investigating agencies but
to the accused as well. If an accused is entitled to any legitimate benefit
during the trial, the public prosecutor should not scuttle/ conceal it. On the
contrary, it is the duty of the public prosecutor to winch it to the fore and
make it available to the accused. Even if the defence counsel overlooks it, the
public prosecutor has the added responsibility to bring it to the notice of the
court if it comes to his knowledge”… as the public prosecutor should “not
obtain an unrighteous conviction — but to see justice has been vindicated”.
Quite to the contrary, we often see TV savvy public
prosecutors, gloating over their legal victories, preening themselves, and
strutting around like film actors. READ — He said don’t worry, I will come out:
Yakub’s wife What can now be done to rectify the injustice to Yakub Memon on
the question of sentence? The options are indeed limited and time is running
out. I think the Supreme Court should suo motu take notice of Mr Raman’s
article and after hearing both sides remand the case to the trial court to take
further evidence on the question of the sentence or in the alternative take the
evidence itself. This is still possible under the power conferred on the
Supreme Court under Article 142 of the Constitution. This exercise would
greatly enhance the prestige and glory of the Supreme Court of India, more
particularly as Mr Raman’s article has been published only after the dismissal
of the curative petition. I believe that Yakub Memon has filed a mercy petition
before the Governor. Action could be taken on this as well.
— Former Supreme Court Judge Harjit Singh Bedi authored the
2010 judgment in Vikram Singh versus State of Punjab, awarding death sentence
to two kidnappers who had poisoned a schoolboy to death as his father did not
pay the ransom. While observing that “the theory which is widely accepted in
India, however, is that as death penalty is on the statute book, it has to be
awarded, provided the circumstances justify it”, Justice Bedi ruled, “When the murder
is committed in such an extremely brutal, grotesque, diabolical, revolting or
dastardly manner as to arouse intense and extreme indignation of the community
or when the victim of murder is an innocent child who could not have or has not
provided even an excuse, much less a provocation, death penalty could be
awarded.”
Justice Bedi was also part of the SC Bench that commuted the
death sentence of Santosh Kumar Singh,who had raped and murdered law student
Priyadarshini Mattoo in Delhi in January 1996. He retired in September 2011.
An Atrocity Devours All
Neither Yakub Memon nor the CBI has told the truth about one of the most incredible episodes in the annals of crime—the return of the Memon family to India more than a year after the March 12, 1993, serial bombings in Bombay. Ordinarily, it may not have mattered. But their return and the long-drawn-out trial constitutes a saga of honour, faith, identity, the need for redemption, and the trauma of betrayal by the state. So a lot depends on the answer to the question: how and why did Yakub Memon, younger brother of the notorious ‘Tiger’ Memon, return to India in 1994, followed by 10 of his family members, including his wife and newborn daughter?
The CBI maintained that it arrested Yakub while he was loitering outside a railway station in Delhi. It would require a very gullible judge to swallow this. Yakub has insisted that he surrendered voluntarily. But he too has never fully clarified the circumstances of his arrest. I met Yakub in a CBI officer’s cabin shortly after his arrest. Dressed in a burgundy-coloured shalwar (his favourite colour), the handsome, bearded chartered accountant was cowering in a corner and looked apprehensive. I subsequently realised the cause of his anxiety—Yakub had just taken an incredible leap of faith and conviction. Knowing that all but two of his family members were innocent, and trusting in the fairness of India’s judiciary, he was bringing the Memons home. Only the two prodigal brothers who were involved in the bomb conspiracy, Tiger and Ayub, stayed behind in their plush, ISI-arranged sanctuary in Karachi. The rest, Yakub believed, would redeem their name.
It was this belief that had brought Yakub to Nepal in July 1994 with a bagful of material implicating Pakistan as Tiger Memon’s sponsor and protector...
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