The four convicts in the Nirbhaya gang rape and murder case will not be hanged on January 22 as scheduled because one of them has moved a mercy plea and according to the prison rules, they cannot be executed till they exhaust all of their remedies under the law, the AAP government told the Delhi High Court on Wednesday.
The four convicts -- Mukesh Kumar Singh (32), Vinay Sharma (26), Akshay Kumar Singh (31) and Pawan Gupta (25) -- were to be hanged on January 22 at 7 am in Tihar jail. A Delhi court had issued their death warrants on January 7.
The Delhi government and prison authorities told a bench of Justices Manmohan and Sangita Dhingra Sehgal that under the prison rules, if death sentence has been awarded to more than one person in a case and if only one of them moves a mercy plea, the execution of the others too has to be postponed till the plea is decided.
"Then your rule is bad if you cannot take action till all the co-convicts have moved a mercy plea. It seems there has been non-application of mind (while framing the rules). The system is suffering from cancer," the bench responded.
The court declined to interfere with the trial court's January 7 order as sought by Mukesh, who contended that the order issuing death warrant be set aside as being un-executable as he has moved a mercy plea before the President.
The high court further said there was no error in the trial court's decision as on that date, none of the convicts had moved a curative petition or a mercy plea.
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The bench said if the convict wanted the date of execution to be set aside based on a subsequent event -- moving of mercy plea -- then "he must approach the court that passed the order".
The bench said it was of the opinion that once the Supreme Court dismissed his criminal appeal, review plea and curative petition and confirmed his death sentence, he cannot challenge the January 7 death warrant before the high court as the order did nothing but carry the apex court's decision to its logical conclusion.
Sensing the high court's stand, senior advocate Rebecca John and advocate Vrinda Grover, appearing for Mukesh, said they will withdraw the petition and move the sessions court bringing to its attention the subsequent developments.
Granting them the liberty to move the trial court, the bench disposed of the plea.
During the hearing, the bench said challenging the January 7 order before it amounted to playing one court against another.
It said that the petitioner ought to have brought the subsequent events to the notice of the trial court or ought to have moved the apex court, which had finally confirmed the death sentence and also dismissed his curative petition.
"We feel this is a stratagem devised on how to prolong the matter, since you had time since May 5, 2017, when the apex court dismissed their appeals, to move a mercy plea or file a review or curative petition. Why did you wait till now? What restrained you from doing so? What prevented you?
"The intent of the law is to give you reasonable amount of time to approach the court. Your time started ticking from May 5, 2017. Even after October 29, 2019 (when first notice was sent to the convicts informing them they can move mercy plea), you did nothing. You cannot wait for the co-convicts pleas to be decided, to move the courts," the bench said.
Besides the petitioner, the high court also pulled up the Delhi government and prison authorities for the delay on their part in issuing a notice to the convicts informing them they can move mercy pleas.
The bench said the notice ought to have been issued after the apex court's May 5, 2017 judgement, instead it was issued on October 29, 2019 and December 18, 2019.
"Put your house in order. Your house is in disarray. The problem is people will lose confidence in the system. Things are not moving in the right direction. The system is capable of being exploited and we see a stratagem to exploit the system, which is oblivious about it," the high court said.
In defence of the prison authorities, Delhi government standing counsel (criminal) Rahul Mehra, said the prison rules state that unless all the co-convicts have exercised all their legal remedies, we cannot issue the notice.
He agreed that the system was being exploited by the convicts to "frustrate" and "defeat" the process of law, as they were moving review pleas and curative petitions separately and in stages.
He said in the instant case, as per the rules, if by noon of January 21 no decision is taken on the mercy plea, then the prison administration will have to move the sessions court for a fresh death warrant.
If the mercy plea is rejected before or after January 22, then 14 days time will have to be given to the petitioner and a fresh death warrant will also need to be obtained.
The lawyer for the gang rape victim's mother said the convicts were "intentionally delaying" the legal process as now Akshay and Pawan will move curative petitions in the apex court and after mercy plea of Mukesh attains finality, the other three will move their respective pleas for Presidential pardon.
The apex court had on Tuesday dismissed the curative pleas of Mukesh and Vinay.
The 23-year-old paramedic student, referred to as Nirbhaya, was gang raped and brutally assaulted on the intervening night of December 16-17, 2012 inside a moving bus in south Delhi by six persons before being thrown out on the road.
She died on December 29, 2012 at Mount Elizabeth Hospital in Singapore.
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