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.
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.
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.