No error in order issuing death warrant, move Trial Court for setting aside Execution Date: Delhi HC directs Nirbhaya convict Mukesh

The Delhi High Court today opined that there was no error in trial court's order issuing death warrant against convict Mukesh in Nirbhaya case.

A Division Bench of Justices Manmohan and Sangita Dhingra Sehgal granted gaveliberty to Mukesh to approach the Sessions Court with the information that he has filed a mercy petition for stay of the execution warrant against him.

The judgment passed today states,

The Tihar Jail Administration today nonetheless clarified that in view of the pendency of convict Mukesh's mercy petition, there would be no execution of the four convicts on January 22.

The Court was hearing Mukesh's petition seeking to set aside the death warrant against him by the Trial Court.

The order comes a day after the Supreme Court dismissed Mukesh's curative petition.

On January 7, Additional Sessions Judge at the Patiala House Court of Delhi, Satish Arora had issued a death warrant against the four convicts, including Mukesh, paving the way for them to be hanged on January 22 at 7 AM in Delhi's Tihar Jail.

In his petition filed through Advocate Vrinda Grover, Mukesh had sought stay on the execution order on the ground that that he has exercised his constitutional right to file a mercy petition before the President of India in terms of Shabnam vs Union of India.

Mukesh asserted that since his mercy petition is pending consideration before the President of India, he was not under "finally executable sentence of death" and that the warrant of execution must be stayed.

"The presence of executive warrant while the Petitioner's mercy petition is pending does not conform with the acceptable standards of propriety. The Petitioner is entitled to a fair consideration of his mercy petition without the shadow of the noose hanging above his as well the executive authorities", the petition read.

Further, building his case for stay of the death warrant, he added that it is post rejection of mercy petition that at least 14 days' time must be given to him in terms of Shatrugan Chauhan vs Union of India, before an execution warrant is issued as the presidential rejection can also be challenged before a court of law.

The Tihar Jail Administration today argued that the petition was premature because in view of the pendency of convict Mukesh's mercy petition, there would be no execution of the four convicts on January 22.

Standing Counsel, Rahul Mehra stated that in view of the Delhi Prison Rules, although the mercy petition had not been filed within the period mandated in the Rules, Jail Authorities were obligated to wait for the President's decision on the mercy plea.

Mehra added that if the mercy petition was rejected, Mukesh would also be entitled to a period of 14 days to avail the remedies and subsequently a fresh warrant will have to be issued by the Trial Court.

As far as the status of Mukesh's mercy petition is concerned, Mehra informed the Court that it was presently with the Home Department which will forward the same to the Lieutenant Governor's Office. The file would then be sent to the Home Ministry, which would forward it to the President.

After hearing the parties at length, the Court expressed its concern over the delay in case.

The Court noted that while the order of sentence had attained finality in July 2018 with the dismissal of Mukesh's review against his conviction, further remedies were being availed now.

The Court therefore decided to not interfere with the order of execution. Consequently, the petition was withdrawn by Mukesh's counsel.

On December 16, 2012, six men in Delhi had brutally gang-raped a young woman, later named ‘Nirbhaya’, in a moving bus. The victim succumbed to her injuries two weeks later at a hospital in Singapore. The six accused were apprehended by the police.

Of the six accused, the main accused committed suicide in Tihar jail during the course of the trial and the juvenile accused was sentenced to three years in a remand home upon conviction. The remaining four were handed a death penalty by the Additional Sessions Judge.

The four convicts had then approached the Delhi High Court in appeal. After the High Court upheld the lower court verdict, the Supreme Court too upheld the death penalty in May 2017.

In July 2018, the Supreme Court dismissed review petitions filed by three of the accused i.e Mukesh, Vinay and Pawan. The fourth convict, Akshay's review petition was dismissed by the Supreme Court in December last year.

Mukesh was represented by Senior Advocate Rebecca John.

With inputs from PTI.

[Read the Judgment]