The state was directed to open its submissions on the confirmation of the death sentence awarded to him from October 18.

The decision was taken by a High Court bench comprising Justice Ranjana Desai and Justice R V More, who said whosoever begins the arguments, the court will have to consider the evidence in the case afresh. The court, accordingly, will hear the state’s submissions first and then take up Kasab’s appeal against conviction and sentencing later.

The High Court has already decided to conduct the hearing on day-to-day basis.
The state arguments will be led by special counsel Ujjwal Nikam, who was the chief prosecutor against Kasab in the trial court. Nikam told the High Court that he was ready to made submissions and that arrangements have been made for video conference to enable Kasab hear the proceedings from the Arthur road jail where he is lodged.

“Irrespective of the legal position on who should argue first — the prosecution on confirmation of death sentence or the defence on Kasab’s appeal — it is our duty to consider the evidence afresh. Keeping this in view, we are asking the state to begin first their arguments,” the bench said.

The judges also considered a statement made by defence lawyers Amin Solkar and Farhana Shah that Kasab has no objection to the state beginning arguments on confirmation of death sentence awarded to him.

The bench also took on record a 1947 Bombay high court judgment, cited by lawyer Farhana Shah in the case of Emperor versus Narayan Ramchandra Jarag, which stated that the state had to begin first on confirmation of death sentence awarded to convict and his appeal was to be heard later.

Nikam contended that Kasab’s lawyers had to argue first on his appeal against conviction and death sentence and only if the appeal failed, the matter regarding confirmation of capital punishment would come up.

However, the judges observed that irrespective of the legal position on who should begin arguments first, the court would have to independently examine evidence all over again and directed that confirmation of death sentence awarded to Kasab should be taken up first for arguments.

Nikam informed the court that accused Sabauddin Ahmed who was acquitted in the 26/11 case had been produced before a sessions court in Mumbai on Wednesday and was formally arrested in this case. Another accused Faheem Ansari, who was also let off in this case due to “doubtful” evidence, was also put under arrest in connection with 26/11 appeal. Both are now lodged in different jails in Mumbai.