The four convicts of the Nirbhaya rape case (File photo)

NEW DELHI: Any condemned convict shouldn’t meet his creator with a grievance in his bosom that the courts of this country had not acted fairly in granting him an opportunity to exhaust all his legal remedies, a Delhi court said on Monday while deferring, till further orders and for the third time, the hanging of all four convicts in the Nirbhaya gangrape and murder case.

On February 17, the court had said the hanging would take place at 6 am on March 3.

After Monday’s hearing started, additional sessions judge Dharmender Rana initially rejected a plea to defer the execution. But subsequently, he was informed that one of the convicts had moved a mercy plea with the President following the rejection of his curative petition in the Supreme Court.

‘Where there’s a right, there’s remedy’

The conundrum of executing the death sentence against the condemned convicts does not seem to be over. Within half an hour of dismissal of the application of Pawan and Akshay seeking postponement of hanging, their counsel (A P Singh) informed court that Pawan’s mercy plea had been moved with the President of India,” the court observed.

When the court turned towards special prosecutor Irfan Ahmed , he said under a provision of the Delhi Prison Rules, it is for the government to decide whether to stay or not. “This game of hide and seek on behalf of defense should be handled with hard hands,” he said.

The court earlier asked Singh to show it the rule which explicitly stated that mercy plea could only be filed after dismissal of curative. It also asked him about the provision at the current stage for the court to interfere. “Under what provision shall court come to your rescue?” it asked but could not find an answer from the counsel. Singh urged the court that he had the only option to come to court as it had only issued death warrants.

In its order, the court noted that it would be "axiomatic to state that the extreme penalty of capital punishment is irreversible in nature". For the court the remedy of mercy plea is an important legal remedy available to the convict and guided by the cherished legal principle Ubi jus ubi remedium – where there is a right, there is a remedy. "I am of the opinion that the application is very much maintainable," the court said.

Even going by a prison rule, a trial court is required to fix the date of a prisoner's hanging post rejection of a mercy petition. "Therefore, it is not correct to contend that the execution of punishment is a matter in the hands of the executive alone and the court has no control over the same," it pointed out. Despite "stiff resistance" from the victim's side, the court opined that it was only correct to defer the scheduled hanging "till further orders". The court said, "I am of the opinion that the death sentence cannot be executed pending the disposal of the mercy petition of the convict.”

