The Centre’s stand came as the Supreme Court reserved its order on a batch of petitions that contended that an appeal in a death sentence case be heard by five judges bench and review of the court's order (on the appeal) too be heard in an open court. (Agencies)
The convict (Arif's) availed the judicial remedies by filing appeals, and the time spent during the disposal of those appeals could not be counted as if he had undergone the sentence, Solicitor General Ranjit Kumar told the constitution bench of Chief Justice RM Lodha, Justice Jagdish Singh Khehar, Justice J Chelameswar, Justice AK Sikri and Justice Rohinton Fali Nariman.
"Arif has taken a chance of court procedure. Mere pendency of the matter can't treated as if he undergoing sentence," the SG told the court counting the dates and years when he moved the high court and the apex court including filing a review and then curative petition.
"In a death case if anything is pending then death sentence would not be carried out," Ranjit Kumar said.
Earlier in the course of the hearing, the SG, opposing the open court hearing of the review petition, told the court that it was different from an appeal against the order of the lower court and thus the scope of hearing the two was also different.
At present the review petitions are decided by the judges in their chambers through circulations.
Ranjit Kumar told the court that a review plea could only be taken up in the open court for oral hearing provided some new issues or points have been raised which were not before any of the courts in the earlier hearings of the case.
He said that plea for an oral hearing of the review petition in the open court could not be camouflaged as an appeal against the apex court's earlier order in the matter.
At this, the court said that in deciding the death sentence cases, the court has to balance between the aggravating and mitigating circumstances and in striking that balance, there can be an error - which can be pointed out in the course of the open hearing of the review petition.
Chief Justice Lodha said that the error may be one in million cases but even that one case is important in advancing the course of justice as it involves a human life - the loss of which is irreversible.
The court also suggesting framing of guidelines for hearing the review petitions in death sentence cases in open court.
"One way could be framing of the guidelines under which the matter could be sought to be heard in open court in a review petition," the court said trying to find some common ground.
Ranjit Kumar however said that these guidelines could not be strait-jacketed and have to be applicable from case to case depending on their categories.
The court reserved its order on a batch of petitions including Lashkar-e-Taiba militant Arif alias Ashfaq, 1993 Mumbai bomb blast death row convict Yakub Abdul Razak Memon and Nedunchezhiyan, Ravindran and C Muniappan, all convicted and sentenced for setting on fire a bus carrying students of Tamil Nadu Agricultural University in February 2000 to protest the sentencing of Chief Minister Jayalalithaa.
The Centre’s stand came as the Supreme Court reserved its order on a batch of petitions that contended that an appeal in a death sentence case be heard by five judges bench and review of the court's order (on the appeal) too be heard in an open court.