YAKUB ABDUL RAZAK MEMON v. THE STATE OF MAHARASHTRA, THROUGH CBI, BOMBAY

Judgment

3. These 10 accused-appellants underwent special training in Pakistan for the purpose of executing the blasts in India. These accused persons/individuals parked the vehicles with explosives at different spots as directed by their masterminds for the explosion of bombs. Crime of terrorism is in itself an aggravating circumstance as it carries a "special stigmatization" due to the deliberate form of F G H YAKUB ABDUL RAZAK MEMON v. STATE OF MAHARASHTRA, THR. CBI , BOMBAY 61

5. inhuman treatment it represents and the A severity of the pain and suffering inflicted. The "vulnerability of the victims" and "the depravity of the crimes" constitute additional aggravating circumstances. B The manner of execution of crime and its design is at a level of extreme atrocity and cruelty. [para 510] [603-H; 604-A-D]

18.16. The mitigating circumstance of these C appellants differ from individual to individual. The mitigating circumstances can be classified into seven heads, namely, (i) age, (ii) act of remorse, (iii) no prior criminal antecedents, (iv) co-operation with the investigation, (v) family circumstances, (vi) ill health and o (vii) delay in execution. The first five aspects have been accepted as mitigating circumstances by the established practices of this Court. As far as 'ill health' is concerned, it is not a mitigating but a special circumstance which may aid in reduction of sentence. The vital distinction E between the 'special circumstance' and 'mitigating ·circumstance' appears to lie in the fact that the reduction in penalty is given not owing to any merit- earned on the part of the accused, but because of compelling 'reasons of humanity', illustrating a humane approach to F sentencing in this context. [para 510 and 512] [604-E; 612- F-H; 613-A]

18.17. Another vital factor stated as mitigating circumstance in all these appeals is that they have all been imprisoned for around 20 years and they continue G to be in jail. Nevertheless, as has been held by the Constitution Bench in Triveniben*, the sentence can't be commuted merely on the ground of delay alone. It was further observed that no absolute or unqualified rule can be laid down that in every case in which there is a long H • 62 SUPREME COURT REPORTS [2013] 15 S.C.R. A delay in the execution of death sentence, the sentence must be substituted by life imprisonment. Thus, no accused can claim as a matter of right to commute his/ her death sentence on the ground of delay in the judicial process. However, noting the lengthy incarceration s suffered by the accused over a period of two decades, as an exceptional scenario, this Court is inclined to consider the long delay as a mitigating circumstance but less significance will be attached to it in comparison with other six circumstances.[para 513] [613-8-E] c *Triveniben vs. State of Gujarat 1989 (1) SCR 509 = (1989) 1 sec 678 - referred to

18.18. Furthermore, all these 10 accused-appellants belong to the lower strata of society, most of whom don't O even have any regular job for their livelihood. Their personal life was relatively moderate before this incident. These appellants have fallen prey to the ulterior motive of the conspirators for accomplishing their hidden motives, which was to spread terror among the people. E Such evidence can in no way exonerate or excuse them for their participation in the commission of crime. However, it provides a somewhat nuanced picture and may imply that their participation in the massacres resulted from misguided notions rather than extremism. F Technically, it is these 10 appellants who parked the explosive filled vehicles in the respective destinations. However, it is actually the masterminds' strategy, which was executed by the subservient minions i.e these 10 appellants. This may not help in complete exoneration of the liability of these 1 O appellants but the degree of G punishment must necessarily reflect this difference. It is vital to remember that 'but for' the masterminds, this blast should have never seen the daylight. [para 514-516] [613- E-G; 614-8-C] H

18.19. Therefore, to differentiate the degree of YAKUB ABDUL RAZAK MEMON v. STATE OF MAHARASHTRA, THR. CBI , BOMBAY 63 punishment to A-1 and other 10 appellants, the ends of A justice would be served if the death sentence of these ten appellants be commuted to imprisonment for life. [para 517] (614-D]

18.20. With a note of caution, it is reiterated that it is B ordinarily expected that two accused convicted of similar crimes in similar circumstances should not in practice receive very different sentences, often the differences are more significant than the similarities, and the mitigating and aggravating factors dictate different results. C Therefore, the lesser sentence imposed on these 10 appellants cannot be a precedent in other cases and every case must be decided according to its facts and circumstances. (para 518] (614-D-F] ·State of UP. vs. Sanjay Kumar (2012) 8 SCC 537 - D referred to. Life Imprisonment is Rigorous Imprisonment:

19.1. There was a misperception imprisonment is distinct from the punishment of rigorous E or simple imprisonment shown in clause (4) of s. 53 of the Code of Criminal Procedure. This issue was clarified in Md. Munna. Therefore, "imprisonment for life" is to be treated as "rigorous imprisonment for life". [para 520] (617-F-G; 618-A] F Md. Munna vs. UO/ and Ors.!Kartick Biswas vs. State of (2005) West Bengal and Ors. 2005 (3) Suppl. SCR 233 = 7 sec 417 - referred to. Meaning of Life Imprisonment: G

19.2: Life imprisonment cannot be equivalent to imprisonment for 14 years or 20 years or even 30 years, rather it always means the whole natural life. This Court in Sangeet* has observed that there is misconception that H 64 SUPREME COURT REPORTS [2013] 15 S.C.R. A a prisoner serving life sentence has an indefeasible right to release on completion of either 14 years or 20 years imprisonment. A convict undergoing life imprisonment is expected to remain in custody till the end of his life, subject to any remission granted by the appropriate s Government u/s 432 of the Code, which in turn is subject to the procedural checks mentioned in the said provision and to further substantive check in s. 433-A of the Code. This Court has always clarified that the punishment of a fixed term of imprisonment so awarded would be subject to any order passed in exercise of clemency powers of the President of India or the Governor of the State, or remission and commutation guaranteed u/s 432 of the Code, as the case may be. Further, the power to grant remissions and to commute sentences is coupled with a duty to exercise the same fairly, reasonably and in terms of restrictions imposed in several provisions of the Code. [para 521, 522 and 524] [618-B-C, F; 619-B-D] c 0 *Sangeet and Anr. vs. State of Haryana, 2012 (11) Scale 140; and State of UP. vs. Sanjay Kumar (2012) 8 SCC 537 - referred to. E

19.3. In order to check all arbitrary remissions, the Code itself provides several conditions. Sub-ss. (2) to (5) of s.432 of the Code lay down basic procedure for making F an application to the appropriate Government for suspension or remission of sentence either by the convict or someone on his behalf. This Court is of the view that exercise of power by the appropriate Government under sub-s. (1) of s.432 of the Code cannot G be automatic or claimed as a right for the simple reason, that this is only an enabling provision and the same would be possible subject to fulfilment of certain conditions. Those conditions are mentioned either in the Jail Manual or in statutory rules. This Court, in various decisions, has held that the power of remission cannot H YAKUB ABDUL RAZAK MEMON v. STATE OF MAHARASHTRA, THR. CBI , BOMBAY 65 be exercised arbitrarily. The decision to grant remission A has to be well informed, reasonable and fair to all concerned. The statutory procedure laid down in s. 432 of the Code itself provides this check on the possible misuse of power by the appropriate Government. [para 523] [618-F-H; 619-A] B

19.4. Therefore, subject to ss. 432 and 433 of the Code and clemency powers of President and Governor, as vested by the Constitution under Arts. 72 and 161, respectively, the appellants- accused A,32, A-36, A-39, A- C 44, A-10, A-29, A-9, A-11, A-12 and A-16 shall be imprisoned for life until their death. The executive should take due consideration of judicial reasoning before excising the remission power. [para 525] [619-D-E] Death Ref. Case (Crl.l No. 1 'Of 2011

19.5. The death reference with regard to A-1 is confirmed; and for rest of the appellants convicted under this part, the death sentence is commuted into life imprisonment. [para 527] [619-H] TERRORISM:

20.1. The quantity of ROX that was used in blasts clearly shows and establishes the fact that the blasts were intended to tear the economic, moral and social fabric of the nation and to induce communal tensions. The planning, timing and the intensity of the blasts establish that the blasts were synchronised so as to cause maximum damage to life and property. [para 377 and 431] [476-F-H; 560-C-D]

20.2. The term "terrorism" is a concept that is commonly and widely used in everyday parlance. There is no particular form of terror and, as such, anything intended to create terror in the minds of general public D E F G H 66 SUPREME COURT REPORTS [2013] 15 S.C.R. A in order to endanger their lives and damage to public property may be termed as a terrorist act and a manifestation of terrorism. Acts of terrorism can range from threats to actual assassinations, kidnappings, airline hijackings, bomb scares, car bombs, building B explosions, mailing of dangerous materials, computer based attacks and the use of chemical, biological, and nuclear weapons - weapons of mass destruction (WMD). Another trend common to both national and international terrorism is the emergence of terrorist c groups motivated by religious fanaticism, though terrorism is abhorred and condemned by all the religions of the world. Terrorists conduct planned and coordinated attacks targeting innocent civilians with a view to infuse terror in the minds of people. India, particularly, has been D a victim on several occasions. [para 433-434 and 442] [560-F-G; 561-B; 564-F-H] •

20.3. In spite of several international conventions and Multilateral Agreements and domestic and international legislations to counter terrorism, it is a major problem that is reoccurring over the globe in many different forms. It is a plague for a nation or society that should be eradicated. There is a dire need to best deal with it and to make sure to take preventive actions. In the considered view of this Court, the following procedures/ rules must have to be adopted while dealing with it:- (i) Better governance and law enforcement is the real need of the hour. (ii) We must formulate long term as well as short term strategies to combat terrorism. (iii) More advanced technologies must be used for communication among law enforcement agencies. E F G H YAKUB ABDUL 8fa,ZAK MEMON v. STATE OF MAHARASHTRA, THR. CBI , BOMBAY 67 (iv) Fighting terrorism would require a long term A planning and sustained multi-dimensional action. (v) There should be proper coordination between all the agencies with high level of motivation and a quick response system must be established to tackle the menace immediately. B (vi) Rule of Law must always be upheld and it is the duty of the constitutional authority to defend the life and limb of its subjects. [para C 435, 439 and 451] [561-D; 563-D; 576-C-H] Hitendra Vishnu Thakur & Ors. vs. State of Maharashtra & Ors. 1994 (1) SuppL SCR 360 = (1994) 4 SCC 602; Girdhari Parmanand Vadhava vs. State of Maharashtra, 0 1996(6) Suppl. SCR 631=(1996)11SCC179; State through Superintendent of Police, CBI/SIT vs. Nalini & Ors., 1999 (3) SCR 1 = (1999) 5 SCC 253; Mohd. Khalid vs. State of West Bengal 2002 (2) Suppl. SCR 31 = (2002) 7 SCC 334; Nazir Khan & Ors. vs. State of Delhi 2003 (2) Suppl. E