Delhi HC refuses to set aside trial court order in Nirbhaya case

Delhi High Court on Wednesday disposed of a plea by Nirbhaya case convict Mukesh Kumar, seeking to set aside the trial court order, issuing the death warrant.

Delhi HC asked convict Mukesh's counsel to approach the trial court and apprise the court of the pending mercy plea.

In its order, the Delhi High Court stated: "Having heard counsel for the parties, this Court is of the view that there is no error in the order dated January 7, 2020, as till the date the impugned order was passed, the petitioner had neither filed a curative nor a mercy petition."

"If the petitioner is of the opinion that the date of execution mentioned in the impugned order needs to be set aside in view of any subsequent event, then he must approach the court that passed the impugned order," the order reads.

The HC further said that it is of the opinion that once the Supreme Court has dismissed the petitioner's criminal appeal confirming the death sentence as well as the review and curative petitions, the petitioner cannot challenge the Additional Sessions Judge's order dated January 7, 2020 fixing a date of hanging before the High Court as the said order is nothing but carrying the orders passed by the apex court to its logical conclusion.

"In the event, the petitioner is aggrieved by any such order, he shall have to approach the apex court. At this stage, learned senior counsel for the petitioner states that the petitioner would file an appropriate application before the trial court bringing the subsequent events to its attention. With the aforesaid liberty and observations, the present criminal writ petition along with the pending application stands disposed of," the order said.

Advocate Rahul Mehra appearing for the Tihar Jail authorities had opposed the plea stating that this is premature and mercy plea of Mukesh is currently with the Home Department of Delhi government and will move to the L-G today itself.

Mehra said that the execution of convicts will surely not take place on January 22.

He stated that the fate of a death convict comes to a finality only after his mercy plea is rejected by the President and that it can only take place 14 days after the mercy plea is rejected.

Rahul Mehra, later in a tweet, said: "Delhi HC dismisses the petition filed by Nirbhaya convict Mukesh Kumar and observes that order dated 07.01.2020 passed by the trial court issuing execution warrants is not erroneous. Petition of the petitioner stands dismissed as withdrawn with liberty to approach the trial court."

Earlier, the Supreme Court had dismissed curative petitions of the two death row convicts, including Mukesh Singh, in 2012 gang-rape case.

A five-judge Bench of Justices NV Ramana, Arun Mishra, RF Nariman, R Banumathi and Ashok Bhushan heard the petitions filed by Vinay Sharma and Mukesh Singh.

The duo had moved the curative petitions in the top court after a Delhi court issued death warrants in their names for their hanging on January 22.

Besides them, two other convicts -- Pawan and Akshay -- are also slated to be executed on the same day at 7 am in Delhi's Tihar Jail premises.They were convicted and sentenced to death for raping a 23-year-old woman in a moving bus in the national capital on the intervening night of December 16-17, 2012.

The victim, who was later given the name Nirbhaya, had succumbed to injuries at a hospital in Singapore where she had been airlifted for medical treatment.