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2016 Supreme(SC) 673
SUPREME COURT OF INDIA
RANJAN GOGOI, PRAFULLA C. PANT, A.M. KHANWILKAR, JJ.
ASHIQ HUSSAIN FAKTOO – PETITIONER
VERSUS
UNION OF INDIA & ORS. – RESPONDENTS
WRIT PETITION (CRIMINAL) NO. 46 OF 2008
Decided On : 30-08-2016
IMPORTANT POINTS
Curative petition invoking the principle of ex debito justitiae can be maintained only if the conditions mentioned in Rupa Ashok Hurra are satisfied.
Open Court hearing of a review petition is permissible only in case of death penalty as laid down in Mohd. Arif alias Ashfaq.
Headnote:(a) Administration of justice – Petitioner convicted u/s 3, TADA Act and section 302 r/w section 120B IPC and sentenced to life imprisonment – Criminal appeal, Review petition as also Curative petition dismissed – Petitioner thereafter filing present writ petition, converted into review petition – None of the two grounds for maintaining a writ petition in such situation mentioned in Rupa Ashok Hurra satisfied – Writ petition not maintainable – Hearing of review petition in open court applies only in case of death penalty vide Mohd. Arif alias Ashfaq – Instantly the penalty is life imprisonment – Hence the petition is neither maintainable as writ petition nor as review petition. (Para 7, 8)
(2002) 4 SCC 388; (2014) 9 SCC 737 – Relied upon
(1994) 3 SCC 569 – Referred
(b) Maxim – Ex debito justitiae – Founded on a recognition of a debt that the justice delivery system owes to a litigant to correct an error in a judicial dispensation – Its application cannot be made to depend on varying perceptions of legal omissions and commissions – Frantic cries of injustice founded on perceived erroneous application of law or appreciation of facts will not be enough – Two situations mentioned in Rupa Ashok Hurra must be satisfied. (Para 10)
(2002) 4 SCC 388 – Relied upon
(c) Curative jurisdiction of Supreme Court – Order XLVIII, Supreme Court Rules, 2013 – Present petition not falling under any of the permissible categories of post conviction exercises permissible in law as laid down by Supreme Court – Writ petition not maintainable. (Para 13)
Facts of the case:
The writ petitioner has been convicted by Supreme Court by its judgment and order dated 30th January, 2003 passed in Criminal Appeal No.889 of 2001 under Section 3 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 and under Section 302 read with Section 120B of the Indian Penal Code, 1860. He has been sentenced, inter alia, to undergo imprisonment for life.
The review petitions filed by the writ petitioner as also by the co-accused (Mohd. Shafi Khan @ Mussadiq Hussain) against the aforesaid judgment dated 30th January, 2003 i.e. Review Petition (Criminal) No.478 of 2003 and Review Petition (Criminal) No.1377 of 2003 have been dismissed by order dated 2nd September, 2003 of this Court.
Curative Petition filed by the co-accused (Mohd. Shafi Khan @ Mussadiq Hussain) i.e. Curative Petition (Criminal) No.23 of 2004 in Review Petition (Criminal) No.1377 of 2003 in Criminal Appeal No.889 of 2001 has also been dismissed by order dated 2nd February, 2005 of this Court. Thereafter, this writ petition under Article 32 of the Constitution of India has been filed by the present accused writ petitioner.
In essence, the writ petition seeks interference with the order of conviction and the sentence imposed on the petitioner by the judgment and order dated 30th January, 2003 passed in Criminal Appeal No.889 of 2001.
The writ petition was converted into review petition and referred to a larger Bench (the present Bench).
Finding of the Court:
Present petition not maintainable either as writ petition or review petition.
Result: Petition dismissed.
JUDGMENT :
RANJAN GOGOI, J.
1. The writ petitioner has been convicted by this Court by its judgment and order dated 30th January, 2003 passed in Criminal Appeal No.889 of 2001 under Section 3 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (hereinafter referred to as “TADA Act”) and under Section 302 read with Section 120B of the Indian Penal Code, 1860 (hereinafter referred to as “IPC”). He has been sentenced, inter alia, to undergo imprisonment for life. The review petitions filed by the writ petitioner as also by the co-accused (Mohd. Shafi Khan @ Mussadiq Hussain) against the aforesaid judgment dated 30th January, 2003 i.e. Review Petition (Criminal) No.478 of 2003 and Review Petition (Criminal) No.1377 of 2003 have been dismissed by order dated 2nd September, 2003 of this Court. Curative Petition filed by the co-accused (Mohd. Shafi Khan @ Mussadiq Hussain) i.e. Curative Petition (Criminal) No.23 of 2004 in Review Petition (Criminal) No.1377 of 2003 in Criminal Appeal No.889 of 2001 has also been dismissed by order dated 2nd February, 2005 of this Court. Thereafter, this writ petition under Article 32 of the Constitution of India has been filed by the present accused writ petitioner making the following prayers:
(a) Issue a writ in the nature of habeas corpus or other similar direction, order or writ to the Respondents thereby commanding them to produce the petitioner before this Hon'ble Court and thereafter forthwith release him from illegal custody; and
(b) grant any other or further reliefs as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case and in the interests of justice.”
2. Notwithstanding the prayers made, extracted above, in essence, the writ petition seeks interference with the order of conviction and the sentence imposed on the petitioner by this Court by its judgment and order dated 30th January, 2003 passed in Criminal Appeal No.889 of 2001.
3. The Bench initially hearing the present writ petition had passed an order dated 24th September, 2014 to the following effect:
“We have been apprised by Mr. Jethmalani as the writ petition was filed, no application for review was filed. We are of the considered opinion if the present writ petition is converted to a review petition and heard in the open Court on the fundamental principles of review as well as the maxim ex debito justitiae, the cause of justice would be subserved and accordingly we direct the Registry to convert the present writ petition to a review petition and list before the appropriate Bench in open Court as expeditiously as possible.
Ordered accordingly”
Subsequently the matter has been referred to a larger Bench. This is how we are in seizen of the matter.
4. As already noted review petitions were filed by the present writ petitioner as also by the co-accused (Mohd. Shafi Khan @ Mussadiq Hussain) and the same were dismissed by this Court by order dated 2nd September, 2003 the said fact was not brought to the notice of the Court while the order dated 24.09.2013 was rendered.
5. Shri Ram Jethmalani, learned Senior Counsel appearing for the writ petitioner has urged that the sole basis of the conviction of the writ petitioner is the alleged confession made by him. Shri Jethmalani has urged that the same is not a confession in law inasmuch as nowhere in the said statement the accused implicates himself with the alleged offence(s) in any manner. Neither the confession has been put to the accused in the course of his examination under the provisions of Section 313 of the Code of Criminal Procedure, 1973, nor there is any corroboration to the alleged confession. Shri Jethmalani has further urged that Section 15 of the TADA Act makes a confession made to a Police Officer, not lower in rank than a Superintendent of Police, admissible in the trial of such person. Section 15 of the TADA Act, therefore, works as an exception to Section 25 of the Indian Evidence Act, 1872. However, in the instant case, the confession w
