New Delhi, Jul 28: Suspense mounted today over the fate of death row convict Yakub Memon with the Supreme Court setting up a three-judge bench to decide his fate hours after a two-judge bench was split on his plea seeking stay of his execution scheduled on July 30.
In the wake of disagreement between Justices A R Dave and Kurian Joseph on the issue, the matter was referred to Chief Justice of India H L Dattu who constituted a larger bench of Justices Dipak Misra, Prafulla C Pant and Amitava Roy to decide the destiny of Memon, the lone death row convict in 1993 Mumbai serial blasts, who will turn 53 on Thursday.
Justice Dave dismissed his plea without staying the death warrant while Justice Kurian 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.
Both Attorney General Mukul Rohatgi and other senior advocates, including Raju Ramachandran, appearing for Memon, were unanimous on the legal position that needed to be addressed by a larger bench with the indulgence of the CJI.
Justice Dave was of the view that 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 has exhausted all available legal remedies.
However, Justice Kurian, who himself had raised a point which was not in Memon's plea that the apex court had not followed 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 that in such circumstances, the death warrant has to be stayed. This prompted Memon's counsel to ask Justice Dave to add a line on staying the death warrant, which he refused.
"Sorry, I will not like to be part of staying the death warrant. Let CJI decide," Justice Dave said and quoted a couplet from Manu Smriti relevant to the issue.