HC angry as Delhi Govt, prison authorities say Jan 22 execution not possible due to pending mercy plea
The four convicts of Nirbhaya gangrape and murder case will not be hanged on January 22 as one of the convicts Mukesh Kumar moved the trial court pleading that his mercy petition is pending before the President of India.
The Delhi Government and prison authorities on Wednesday told a Bench of Justices Manmohan and Sangita Dhingra Sehgal in the Delhi High Court 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.
However, in a related but significant development, the High Court (HC) refused to stay the death warrant issued against the convicts Akshaya Thakur, Mukesh Kumar, Vinay Sharma and Pawan Gupta by the trial court on January 7.
The HC came down heavily upon the Delhi Government for sitting over the case for a year and doing nothing in issuing notice on the mercy plea of the convicts. The HC also pulled up the Delhi Government and Delhi prison authorities for the delay on their part in informing the convicts that they can move mercy pleas before the President.
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.
After the HC observation, the Delhi Deputy Chief Minister Manish Sisodia sought to clear the air and said, “The Delhi Government has recommended rejecting the mercy plea filed by Mukesh, and forwarded it to the Lieutenant Governor (L-G) at lightning speed”.
Incidentally, convicts Vinay and Mukesh have already exhausted curative petition remedy and two others — Pawan and Akshay — are yet to move the Supreme Court (SC) with this plea.
The Bench said, “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 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 HC further said there is 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. 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 is of the opinion that once the SC dismissed his criminal appeal, review plea and curative petition and confirmed his death sentence, he cannot challenge the January 7 death warrant before the HC as the order did nothing but carry the apex court’s decision to its logical conclusion.
Following the HC’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 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?” said the Bench.
“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.