Nirbhaya case: Hanging of four death row convicts stayed by Delhi Court

By: – Syed Ali Taher Abed

A Delhi court on Friday stayed till further orders the hanging of Nirbhaya gangrape-murder case death row convicts, that was scheduled on February1.

The judiciary of this country can’t turn a Nelson’s eye towards any convict when he/she has a legal remedy available in the system and has not availed it fully observed the Court.

The three out of four convicts Akshay Kumar Singh, Pawan Gupta and Vinay Kumar Sharma-had moved the court seeking a stay on their hanging. The fourth convict Mukesh Kumar Singh has exhausted all legal remedies.

The Court stayed the hanging until further orders after completion of the hearing of arguments of Tihar Jail authorities and the convicts’ lawyer. The court had on Thursday issued notice to jail authorities seeking their response on the plea.

The order was passed by the additional Session Judge Dharmendra Rana at Patiala house court.

“without commenting upon the dilatory tactics adopted by the convicts, suffice it would be to state that seeking redressal of one’s grievances through procedure established by law is the hallmark of any civilized society.

The Court’s of this Country cannot afford to adversely discriminate any convict, including death row convict, in pursuit of his legal remedies, by turning a Nelson’s eye towards him”

The stay Application was moved on the ground that convicts have not exhausted all available legal remedies. Vinay Sharma one of the convicts had filed a mercy plea to the President of India and awaiting its result. Two other convicts, Akshay Singh and Pawan Gupta, have not yet availed the remedy of mercy plea.

The Application further states that convict Pawan Gupta seeks to file curative petition in the Supreme Court.

The Application cited the rule 836 and 858 of the Delhi Prison Rules which states that Rule 836 “Whenever a sentence of death has been passed by any Court or Tribunal, the sentence shall not be executed until after the dismissal of the appeal or of the application or, in case no such appeal has been preferred, or no such application has been made, until after the expiry of the period allowed for an appeal or for making of such application: Provided that, if a petition for mercy has been submitted by or on behalf of a prisoner sentenced to death, the execution of the sentence shall further be postponed, pending the orders of the President thereon: Provided further that, if the sentence of death has been passed on more than one person in the same case, and if an appeal or an application is made by or on behalf of only one or more but not all of them the execution of the sentence shall be postponed in the case of all such persons (prisoner sentenced to deaths) and not only in the case of the person or persons by whom, or on whose behalf, the appeal or the application is made.”

According to Rule 858, a death row convict must be given a notice of minimum 14 days after the rejection of the mercy plea.

The Rule 858 “Minimum period of execution of death sentence. A minimum period of 14 days was stipulated by the Supreme Court between the receipt of the communication of the rejection of the mercy petition and the scheduled date of execution. This is to enable the prisoner sentenced to death to prepare himself and settle his affairs and meet his family members for one last time or to avail any judicial remedy. Therefore, a clear 14 days will be provided to the prisoner sentenced to death to prepare himself and settle his affairs and meet his family members for one last time or to avail any judicial remedy.”

However, prosecutor appearing for the Tihar Jail Authorities Mr. Irfan Ahmed argued that the applications were ‘a complete mockery of justice.

While arguing he cited the Rule 863 of Delhi Prison Rules which states that “The Trial Court shall fix the date of the execution of a prisoner sentenced to death if his Mercy Petition is rejected.”

Advocates Seema Kushwaha and Jeetendra Jha, appearing for the victim’s family submitted that convicts’ lawyers are “manipulating “the judicial system to delay hanging.

These are the delay tactics which are causing distress and outrage in public at large. Such delay tactics reflect very badly on the judicial pillar of our state. Both the victim and the accused should get speedy justice”, they submitted.