New Delhi: The hanging of the four convicts in the 2012 Nirbhaya gangrape and murder case scheduled for Tuesday was deferred for the third time in six weeks by a court in yet another twist in the case marked by apparent delaying tactics by the condemned prisoners.
Postponing the execution till further orders, Additional Sessions Judge Dharmender Rana said Monday the hanging cannot be carried out pending disposal of Pawan Gupta’s mercy plea before the President. He observed any condemned convict must not meet his ‘Creator’ with grievance against courts for not acting fairly on the opportunity to exhaust legal remedies.
Earlier in the day, Pawan(25) moved a clemency plea before President Ram Nath Kovind, shortly after his curative petition was dismissed by the Supreme Court. The curative plea for commuting the death sentence was heard in chamber by a five-judge bench. It is the last legal remedy available for a convict to get any reprieve.
The hanging of the four men – Mukesh Kumar Singh (32), Vinay Kumar Sharma (26), Akshay Kumar Singh (31) and Pawan, who are lodged in Tihar jail, had earlier been fixed for March 3 in Tihar jail. Barring Pawan, the other three had in the previous weeks moved curative petitions and mercy pleas which were all dismissed.
The first date of execution – January 22 – fixed January 7 was postponed by the court to February 1. But January 31, the court indefinitely postponed the hanging. The court again issued February 17 fresh date for execution of death warrants for March 3 at 6.00am.
The court in its orders observed that the four convicts cannot be hanged since a mercy plea of one or the other convict was pending. Ebe if the mercy plea is rejected a convicted is given a minimum of 14 days before the execution.
According to Delhi Prison Rules, if a mercy petition is submitted, a 14-day period has to be given to the convict after the dismissal of the mercy plea.
“This shows the failure of our system. The whole world is watching how justice is being delayed in India,” Nirbhaya’s mother Asha Devi told reporters. She said she ‘loses hope every day’ but the convicts will be hanged no matter what they do.
“I lose hope every day but I stand tall every day. They would have to be hanged. There could not have been a worse case than Nirbhaya but still I am struggling to get justice. The courts are sitting and watching the drama,” added Asha Devi.
Judge Rana passed his order on Pawan’s plea seeking to stay the execution as he has filed a mercy petition before the President.
“Despite stiff resistance from the victim’s side, I am of the opinion that any condemned convict must not meet his Creator with a grievance in his bosom that the courts of the country have not acted fairly in granting him an opportunity to exhaust his legal remedies,” the judge said while posting the order.
“As a cumulative effect of the discussion, I am of the opinion that the death sentence cannot be executed pending the disposal of the mercy petition of the convict. It is hereby directed that the execution of death warrants against all the convicts, scheduled for March 3 at 6.00am, is deferred till further orders,” the judge added.
“I have no hesitation in holding that mercy petition is an important constitutional legal principle ‘Ubi jus ubi remedium’, ie, where there is a right, there is a remedy, I am of the opinion that the application is very much maintainable,” the judge said in the six-page order.
While it was reserving the order on Pawan’s fresh plea, the judge rapped the convict’s lawyer AP Singh for acting so late in filing the curative and mercy pleas.
“You are playing with fire, you should be cautious” the judge said and added ‘one wrong move by anybody, and you know the consequences’.
In the apex court, a five-judge bench headed by Justice NV Ramana, also rejected Pawan’s application seeking stay on the execution of the death sentence
“The application for oral hearing is rejected. The application for stay of execution of death sentence is also rejected. The curative petition is dismissed…,” said the bench, also comprising Justices Arun Mishra, RF Nariman, R Banumathi and Ashok Bhushan.
Tihar jail authorities, during the hearing, said the ball is in the government’s court after the filing of the mercy petition, and the judge has no role for now.
“The plea is not maintainable… it is for the government to decide whether to carry out the sentence or not. At this juncture the courts cannot intervene as such intervention would be merely based upon presumptions and conjectures,” the jail authorities said.
They said the President will seek a status report from the jail on Pawan’s mercy plea and when that happens, it will suo motu stay the execution.