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New Delhi, January 31, 2020
A court on Friday, while putting a stay on the death warrants issued against the four death row convicts in the Nirbhaya gang-rape and murder case for an indefinite period, observed that "courts cannot afford to adversely discriminate against any convict by turning a Nelson's eye towards him".
Additional Sessions Judge Dharmender Rana, in his order, said: ""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 was the hallmark of any civilised society. The courts of this country cannot afford to adversely discriminate against any convict, including death row convicts in pursuit of legal remedies, by turning a Nelson's eye towards them."
The court passed the order while it was hearing multiple petitions filed by the counsel of the convicts seeking postponement of the execution which was scheduled on Saturday (February 1).
It has stayed the order in view of the pendency of the mercy plea filed by convict Vinay Sharma. Keeping in consideration rules 836, 850 and 854 of the Delhi Prison Rules, the court observed: "I have no hesitation in observing that the execution of warrant qua accused Vinay ought to be postponed."
As Vinay's execution could not take place, the court stayed the sentencing of the other three convicts in view of the second proviso to Rule 836 of the Delhi Prison Rules which clearly states that if any appeal or application by one of the convicts is pending, the execution of sentence for all the co-accused shall also be postponed.
During the course of hearing, lawyer A. P. Singh said that on behalf of Pawan, a review petition has also been filed, and a criminal appeal is pending before Delhi High Court. He further submitted that Akshay's curative petition was dismissed by the apex court on Thursday.
It is argued that if the warrants are not stayed, the remedies will become infructuous, Singh contended.
Mukesh's counsel Vrinda Grover said that her client has been sincerely pursuing legal remedies without delay.
Since all the convicts were held guilty by the same court in the same offence, isolation of fate cannot take place, she said, citing rule 868 of the Prison Rules.
She has also placed reliance on the top court judgment, arguing that in case, if mercy plea of a similarly placed convict is considered favourably by President, this would affect the course of justice for Mukesh. She also placed reliance on Yakub Memon case.
The prosecution, however, opposed the application moved by the convict submitting that Mukesh has no legal remedies and should be executed. It further argued that the applications moved by Vinay and Akshay are not maintainable as per Delhi Prison Rules.
The prosecutor further contended that execution of Vinay cannot be postponed. He also stated that granting any relief to the convicts would be travesty of justice and hence their applications should be dismissed.
Victim's counsel argued that the convicts are adopting delaying tactics to thwart the speed of justice.
It was argued that convicts were sentenced to death in 2013, and the verdict confirmed by the High Court in 2014 and upheld by the Supreme Court in 2017. Vinay, Mukesh and Pawan's review petitions have also been dismissed. Even curative pleas of Vinay, Mukesh and Akshay have been dismissed, he said.
Even after attaining the finality, the verdict of the court has not been executed, he said, adding that the convicts are resorting to all kinds of tactics to delay the proceedings. He also noted that as per rule number 840, jurisdiction lies with the government and not this court.