A Delhi Court on Thursday adjourned the hearing of the petition seeking issuance of fresh death warrants against the four convicts in the 2012 Delhi gangrape murder case unitl February 17.
This is taking note of fact that the Supreme Court is set to pronounce judgment in convict Vinay Sharma's petition against rejection of mercy petition tomorrow. The Court also expressed that time for effective legal representation should be given to convict Pawan Gupta, whose earlier lawyer was disengaged from the case yesterday.
The judge said that execution of death warrant is a "very sensitive issue and that it cannot be resolved on probabilities".
Additional Sessions Judge Dharmender Rana of Patiala House court said in the order :
"In my considered opinion, the disposal of application ser this stage would lead to further legal complications. In these circumstances, matter stands adjourned till February 17".
The judge observed that "Article 21 protects the life and liberty of a condemned convict till his last breath. He is entitled, as a matter of right, to exhaust his legal remedies and the court cannot afford to ignore the fundamental rights of the condemned convicts".
Reliance has been placed on apex court's order in Shabhnam v. State and Shatrughan Chauhan v. UOI
The Court "regretfully" noted that convict Pawan Gupta had refused the offer for legal aid, though he was given information regarding panelled advocates of Delhi Legal Services Authority. Pawan's father did not respond to several calls made to him, said the Court.
Lawyer for victim's family Seema Kushwaha submitted that the Court cannot appoint a lawyer for Pawan, disregarding his objections.
But the Court observed in this connection that "the right of legal aid flow from Article 21 which makes no distinction between a law abiding citizen and a condemned convict while protecting life and liberty against any unlawful violation".
It was contended by Public Prosecutor that as on date there's no legal impediment in fixation of date for execution of death warrant. It is submitted that even though there are petitions pending before the SC, the proceedings before this court have not been stayed. Therefore in light of the HC's order in the revision petition, it is incumbent upon this court to fix a date for execution of death warrant, PP argued.
It was argued that convicts have failed to exhaust their legal remedies and they should not be permitted any longer to derail the court proceedings. It was submitted that the court should remain alive to the delaying tactics adopted by the convicts. It was further submitted that the society is running out of patience, while convicts are enjoying the luxury of jail. It is submitted the fixation of date in fact acts as a stimulus for the convicts to act, otherwise, not only the court but the entire state machinery remains in the state of slumber.
The prosecution further submitted that "the will of the people, is supreme even to the Constitution, and hence must be respected by this court".
Advocate Vrinda Grover, amicus curiae appointed to represent convict Mukehs, argued the the constitutional mortality prevails over pubic morality.
'Judgment in a court of law must be passed as per constitutional provisions unfazed by popular perceptions', she submitted.
She also submitted that the life of a death row convict in jail can by no imagination said to be a luxurious life".
The petition was moved under section 413 of Criminal Procedure Code, as mercy petitions of three out of the four convicts, namely Mukesh, Vinay and Akshay, have been rejected by the President of India.
Since the fourth convict, Pawan, has still not preferred either his curative or the mercy petition, there's no application pending on behalf of any of the convicts before any court.
It was mentioned in the application that after the trial court's order dated 31/01/2020, wherein the date of execution was stayed sine die, the President has rejected the mercy pleas of both Vinay and Akshay on February 1 and February 5 respectively.
Nirbhaya Case: hearing on Tihar's plea seeking a fresh death warrant against the four convicts begins before ASJ Dharmender Rana at Patiala House Court#NirbhayaCase #Nirbhaya— Live Law (@LiveLawIndia) February 13, 2020
Nirbhaya Case: hearing on Tihar's plea seeking a fresh death warrant against the four convicts begins before ASJ Dharmender Rana at Patiala House Court#NirbhayaCase #Nirbhaya
The application also talked about the High Court order in the revision petition moved the Centre, wherein a period of 7 days have been given to the convicts to exhaust all their legal remedies.
A fresh death warrant was sought on the ground that, as on today, none of the petitions of any of the convicts is pending before any court or constitutional authority, and accordingly, nothing survives as on today.
On January 7, the first common death warrant was issued against the four convicts, and the date of execution was set for January 22. However, the said date had to be postponed to February 1, by an order dated January 17, due to the subsequent developments in the legal remedies exercised by the convicts