The Supreme Court Monday rejected the plea of a death row convict in the Nirbhaya gang rape and murder case challenging the Delhi High Court order which had dismissed his claim of being a juvenile at the time of offence saying he cannot re-agitate the issue by filing fresh application.
A bench, comprising Justices R Banumathi, dismissed the plea of death row convict Pawan Kumar Gupta and upheld the Delhi High Court verdict.
The apex court said there was no ground to interfere with the high court order that rejected Pawan's plea and his claim was rightly rejected by the trial court as also the high court.
It said the matter was raised earlier in the review petition before the apex court which rejected plea of juvenility taken by Pawan and another co-accused Vinay Kumar Sharma and that order has attained finality.
"Once a convict has chosen to take the plea of juvenility before the Magistrate, High Court and also before the Supreme Court and the said plea has been rejected up to the Supreme Court, the petitioner cannot be allowed to re-agitate the plea of juvenility by filing fresh application under Section 7A of the Juvenile Justice Act," the bench said.
"Considering the earlier orders passed by the Metropolitan Magistrate dated January 10, 2013 and the judgment of the HC dated March 13, 2014 and the order passed by Supreme Court dated July 9, 2018, in our view, the single judge of the Delhi HC rightly dismissed the revision petition. We do not find any ground warranting interference with the impugned order," said the bench, also comprising Justices Ashok Bushan and A S Bopanna.
Section 7A of the JJ Act stipulates that an application can be filed before any court at any stage including the stage after the final disposal of the petition.
The court also refused to pass any order on the submission of advocate A P Singh, appearing for Pawan, that the High Court has made certain observations against him which is prejudicial to his rights.
Singh had argued he was not present at the time of passing of the order by the High Court and as such the observations are not justified.
The court, however, said: "We have considered the submission raised by learned counsel for the petitioner but do not express any opinion as it is not germane to the present issue. We however reserve liberty to Mr. Singh to take appropriate proceedings separately against the observations made by the High Court against him."
Singh argued that as per his school leaving certificate he was a minor at the time of the offence and none of the courts, including trial court and high court, ever considered his documents.
Solicitor General Tushar Mehta, appearing for Delhi police, said however that Pawan's claim of juvenility was considered at each and every judicial forum and it will be a travesty of justice if the convict is allowed to raise the claim of juvenility repeatedly and at this point of time.
He said the convict was 19 years old at the time of offence and there is a certified copy of his birth certificate as well as school leaving certificate which was taken on record by each and every judicial forum.
Pawan had moved the apex court on Friday. He has also sought a direction restraining the authorities from executing the death penalty, scheduled for February 1.
A Delhi court on Friday issued fresh death warrants for February 1 against the four convicts -- Vinay Sharma (26), Akshay Kumar Singh (31), Mukesh Kumar Singh (32) and Pawan (26) -- in the case.
A 23-year-old paramedic student, referred to as Nirbhaya, was gang-raped and brutally assaulted on the intervening night of December 16-17, 2012, in a moving bus in south Delhi by six people before she was thrown out on the road.
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