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Synopsis

During Tuesday's hearing of the appeal filed by the convicts involved in the 7/11 Mumbai Train Blasts and the State Government's plea for confirming the death sentence, the Bombay High Court deliberated on whether the prosecution or the convicts should commence their arguments.

The division bench of the high court, consisting of Justice Nitin Sambre and Justice NR Borkar, was hearing the miscellaneous application filed by multiple convicts involved in the 7/11 train blast case while in jail.

Previously, on September 8, the high court had directed the counsel representing the convicts to commence their arguments.

Advocate Yug Mohit Chaudhry, representing one of the convicts, informed the bench that according to Section 368 of the CrPC, it is the prosecution who initiates the case.

Chaudhry referred to the precedent set in Ajmal Kasab's case, which was heard by the Bombay High Court, and argued that both in principle and practice, it is the prosecution that commences the argument.

He also stressed that the judgment of the sessions court remains pending until the high court confirms the death penalty. 

Chaudhry explained that even if an appeal is not filed with the high court, in the event of death penalty confirmation, the high court has the power to acquit the convict. 

Senior Advocate and Special Public Prosecutor Raja Thakare, representing the state government, contended that due to several appeals filed by convicts, it would be more convenient for the appellants to begin the arguments.

Thakare referred to a Supreme Court judgment to support the argument that it should indeed be the convicts who commence with their arguments.

Thakare added that on the previous hearing the court had recorded the assurance given by the counsels appearing for the convicts that convicts would begin their submissions 

The division bench was however of the opinion that the proviso to Section 368 CrPc states that confirmation cannot be decided until the appeal is heard and since an appeal was filed by the convicts they should open with their arguments.

"How do you deal with proviso to Section 368 which says that if appeal is pending then confirmation cannot be decided without deciding the appeal. If the statute itself prescribes you can't say that the confirmation should be decided first. The judgement of the division bench (Bombay High Court - Ajmal Kasab Case) is in ignorance of the Supreme Court judgement. You said that confirmation should be heard with or without an appeal, but in this case, there is an appeal. If you didn't file an appeal we would've asked them (prosecution) to open but you have filed an appeal. If you want to recall the order then move an application," the bench said.

During the hearing, the bench also disposed of several applications filed by the incarcerated convicts, such as requests to take LLB exams and visit an elderly mother.

Chaudhry, on behalf of the convicts, indicated that he would file an application to modify the previous order in which the court had directed the convicts to commence their arguments. 

The next hearing for the matter is scheduled for October 5, 2023.

Case title: Zahmeer Ahmed Latifur Rehman Shaikh & Ors vs State of Maharashtra