NEW DELHI: Efforts by authorities for a speedy hanging of the four convicts in the Nirbhaya case suffered a jolt as a trial court on Friday refused to issue fresh death warrants, asking how is it presumed that the fourth condemned prisoner is not going to seek the last available legal remedy for a reprieve.
Taking note of the Delhi High Court's February 5 order permitting the convicts in the gang-rape and murder case to exercise their legal remedies within one week, Additional Sessions Judge Dharmendra Rana observed, "It is criminally sinful to execute the convicts when the law permits them to live."
The judge said death warrants cannot be executed merely on the basis of surmises and conjectures even as the Supreme Court said no one can be compelled to take remedies.
The trial court on January 31 indefinitely postponed the execution of the four convicts-- Mukesh Kumar Singh (32), Pawan Gupta (25), Vinay Kumar Sharma (26) and Akshay Kumar (31), who are lodged in Tihar Jail.
In the application before judge Rana, the Delhi government said the President has already dismissed the mercy petitions of three convicts and that no application by any of the four is currently pending before any court.
"What makes you (State) presume he (Pawan Gupta) is not going to use his curative plea?" At this, public prosecutor Irfan Ahmad, appearing for the Delhi government and Tihar jail, said, "He (Pawan Gupta) has not filed yet. Currently no application by any of them is pending before any court."
Pawan has not yet filed a curative petition -- the last and final legal remedy available to a person which is decided in-chamber.
He also has the option of filing a mercy plea.
The Delhi government had moved the trial court for issuance of fresh black warrants.
"It is criminally sinful to execute the convicts when law permits them to live. The High Court on February 5 has permitted the convicts, in the interest of justice, to exercise their legal remedies within one week from same order," judge Rana said.
"I concur with counsel for convicts that death warrants cannot be executed merely on basis of surmises and conjectures. The application is bereft of merit. Same is dismissed. State is at liberty to move appropriate application as and when required," he added.
The Delhi government informed the court about the high court's order which directed the convicts to take steps within a week, if they wished, to avail any remedy available under the law.
"It is, therefore, most respectfully prayed that, keeping in view a week's time given to the convicts by high court, the fresh dates for execution of death warrants. May kindly be fixed specifying the date and time for execution/ hanging of convicts Pawan Gupta, Vinay Sharma, Mukesh and Akshay in the interest of justice," it said in the application.
The warrants, issued by the trial court on January 7, were postponed "sine die" by it on January 31, giving the condemned prisoners a reprieve for the second time in two weeks.
The date of execution, first fixed for January 22 in Tihar jail, was later postponed to February 1 by a January 17 court order.
In the Supreme Court, a 3-judge bench headed by Justice R Banumathi rejected Solicitor General Tushar Mehta's urgent request to issue notices to the convicts on the appeal of the Centre and the Delhi government against the high court order which also said the death row prisoners have to be executed together and not separately.
"The high court has granted them (convicts) one week time to avail all their remedies. This amply protects you," the bench, also comprising Justices Ashok Bhushan and A S Bopanna, told Mehta.
The bench also said that issuance of notices to the convicts at this stage will further delay the matter.
Mehta argued that convicts were adopting delaying tactics and Pawan Gupta has neither filed a curative petition in the apex court nor moved the mercy plea before the President yet.
"No one can be compelled to take remedies," the bench said and posted the matter for hearing on February 11.
The top court told Mehta that it may consider the aspect of whether notice was needed to be issued to these convicts on the next date of hearing.
Mehta told the bench that "nation's patience has been tested enough now" in this case due to delaying tactics of the convicts and the top court would have to lay down law on whether such condemned prisoners can be hanged separately or not.
The 23-year-old physiotherapy intern, who came to be known as 'Nirbhaya' (fearless), was gang-raped and savagely assaulted on the night of December 16, 2012, in a moving bus in South Delhi.
She died of her injuries a fortnight later in a Singapore hospital.
Six people including the four convicts, Ram Singh and a juvenile -- were named as accused.
The trial of the five adult men began in a special fast-track court in March 2013.
Ram Singh, the prime accused, allegedly committed suicide by hanging himself in Tihar jail days after the trial began.
The juvenile, who was said to be the most brutal of the attackers, was put in a correctional home for three years.