Four convicts in Nirbhaya case won't be hanged on Jan 22, as one mercy plea moved: Delhi govt to HC

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.

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?