Case Summary
| Citation | Mohd. Arif v. The Reg. Supreme Court of India (2014) 9 SCC 737 |
| Keywords | |
| Facts | On 22.12.2000 at about 9 p.m. in the evening some intruders started indiscriminate firing and gunned down three army Jawans belonging to 7th Rajputana Rifles. This battalion was placed in Red Fort for its protection considering the importance of Red Fort in history of India. There was a Quick Reaction Team of this battalion which returned the firing towards the intruders. On the next day, in the morning at about 8.0 a.m., one news channel flushed the news that Lashkae-e-toiba had claimed the responsibility for the shooting incident in question. Investigating officer found a bag and a clip with a mobile number. This mobile number was registered under Mohd. Arif names who accepted his involvements in this attack. As per the investigation the accused appellant was a Pakistani national and joined a terrorist organization Lashkar-e-Toiba. The prosecution examined as many as 235 witness and exhibited large number of documents. His wife Rehmana Yusuf Farukhi was also one of the accused in this case. She alone adduced evidence in defence and examined her own mother and tried to show that they did not know the accused was a militant and that the money in the bank account of Rehmana Yusuf Farukhi was her own and not given by the accused. The accused was convicted for the offences punishable under Section 120 B, 121 and 121 A of IPC, Section 186/353/120 of IPC read with Section 302 of IPC, Section 468/471/474 of IPC and also Section 420 read with Section 120 B of IPC. The accused awarded death sentence for his conviction under Section 121 of IPC as also under section 320 read with Section 120 B of IPC by the trial court and the same was upheld by the High Court in appeal. A group Petition has come before the Hon‘ble Supreme Court which was further decided by the Constitutional Bench. Nriman J. Has also given his dissent opinion in this case. |
| Issues | Whether the hearing of cases in which death sentence has been awarded should be by a Bench of at least three if not five Supreme Court Judges? Whether the hearing of Review Petitions in death sentence cases should be by circulation but should only be in open Court, and accordingly Order XL Rule 3 of the Supreme Court Rules, 1966 should be declared to be unconstitutional in as persons on death row are denied an oral hearing? |
| Contentions | |
| Law Points | Court upheld the amendment in Order XL Rule 3 of the Supreme Court Rules, which amendment did away with oral hearing of review petitions in open court. This is also a judgment of the Constitution Bench and therefore, being a judgment of a coordinate bench is binding on this bench. While answering the argument through the constitutional bench accepted the importance of oral hearing, generally it took the view that the court, when it comes to deciding a review application, decides something very miniscule, and the amended rule sufficiently meets the requirement of the principle of audi alterm partem. The court clarified that deciding a review petition by ‗circulation‘ would only mean that there would not be hearing in Court but still there would be discussion at judicial conference and the judges would meet, deliberate and reach a collective conclusion. It has rightly emphasised that ruling need not be cited for this basic proposition but every judicial exercise need not be televised on the nation‘s network. The right to be heard is of the essence but hearing does not mean more than fair opportunity to present one‘s point on a dispute, followed by fair consideration thereof by fair minded judges. Presentation can be written or oral, depending on the justice of the situation. Where oral persuasiveness is necessary it is unfair to exclude it and, therefore, arbitrary too but where oral presentation is not that essential, its exclusion is not obnoxious. The Court, also noted that in many other urisdiction, there was exclusion of public hearing in such cases. Further, the Court found justification in enacting such a rule having regard to mounting dockets and the mindless manner of filing review petition in most of the cases. The power to review is in Article 137 and it is equally wide in all proceedings. The rule merely canalise the flow from the reservoir of power. The stream cannot stifle the source. Moreover, the dynamics of interpretation depend on the demand of the context and the lexical limit of the test. Here, record‘ interpretation depends on the demand of the context and the lexical limit of the test. The purpose is plain, the language is elastic and interpretation of a necessary power must naturally be expansive. The substantive power is derived from Article 137 and is wide for criminal as for civil proceedings. It is, thus, clear from the reading of the aforesaid judgment that the very rule of deciding review petitions by ‗circulation‘, and without giving an oral hearing in the open Court, has already been upheld. In such a situation, can the petitioners still claim that when it comes to deciding the review petitions where the death sentence is pronounced, oral hearing should be given as a matter of right? |
| Judgement | We may like to state at this stage itself that we are going to answer the above question in the affirmative as our verdict is that in review petitions arising out of those cases where the death penalty is awarded, it would be necessary to accord oral hearing in the open Court. We will demonstrate, at the appropriate stage, that this view of ours is not contrary to P.N. Eswara Iyer (supra), and in fact, there are ample observations in the said Constitution Bench judgment itself, giving enough space for justifying oral hearing in cases like the present. |
| Ratio Decidendi & Case Authority |
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