[Breaking] Nirbhaya: No stay on trial court order postponing execution of convicts, HC directs convicts to avail all legal remedies within 7 days
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[Breaking] Nirbhaya: No stay on trial court order postponing execution of convicts, HC directs convicts to avail all legal remedies within 7 days

Aditi Singh

The Delhi High Court today refused to set aside the trial court order postponing the execution of death warrant against four convicts.

Justice Suresh Kumar Kait held that the death warrant cannot be executed separately for the four convicts.

The High Court also directed the convicts to avail all their legal remedies, if they wish to, within one week from today.

"Failing which, the Court exepcts the Institution/ Authorities concerned tp deal, as per law applicable on, without further delay."
Justice SK Kait

The order was passed in the revision petition moved by the Central government against the trial court order postponing the execution of the Nirbhaya convicts till further orders.

Justice Suresh Kumar Kait
Justice Suresh Kumar Kait

Today, the Court pulled up the authorities for not acting on time and remarked that after the death penalty was upheld in May 2017 by the Supreme Court, the "authorities were sleeping". Justice Kait said,

"I have no hesitation to say that since May 5, 2017 (when the Supreme Court upheld the death penalty) , nobody had bothered to execute the death warrant. They waited for reasons best known to them, till convict Mukesh filed his review petition before the Supreme Court on 6.11.2017.. Even thereafter, all aiuthorities were sleeping and waited till Akshay Kumar Singh filed his petition, with 950 days delay, on 10.12.2019.."

Justice Kait

The Court acknowleged that the convcits had committed a ghastly crime and were accordingly condemned by a common order. However, the protection of Article 21 could not be denied to them.

It said,

“..so long as life lasts, so long shall be the duty and endeavour of the Court to give to the provisions of our Constitution a meaning which will prevent human suffering and degradation. Therefore, Article 21 is as much relevant at the stage of execution of death sentence and its execution. The essence of the matter is that all procedure, no matter what the stage, must be fair, just and reasonable.”
Justice Kait

Relying on Yakub Memon case, the Court acknowleged that Mukesh could filea subsequent mercy petition if there were any change of circumstances and opined that at this stage, he could not be adveresly segregated only because he has been sincerely following his remedies.

It also ruled that the Centre's petition was maintainable in the present case, as it was the Delhi Police which had been probing the matter.

The execution was deferred by the trial court indefinitely in view of the pendency of Vinay's mercy plea before the President, as well the availability of legal remedies before other co-convicts.

It was the Centre’s stand that the convicts were abusing the process of law and that there was a coordinated and deliberate inaction by the co-convicts to delay the execution of sentence.

Seeking the execution the death warrant qua the convicts who have exhausted all their legal remedies, the Centre had argued that under the Delhi Prison Rules, 2018, simultaneous hanging of co-convicts was mandated only till the time the appeal is pending before the Supreme Court.

The Centre had also contended that at the stage of mercy petition, which is an “individual remedy”, there was no bar on bifurcation of co-convicts for the purpose of execution of death warrant.

To support its claim, Centre had submitted that as per the relevant Rule on execution of death warrant against co-convicts, ie. Rule 836, execution had to be stayed qua co-convicts only when "appeal or application" by one of the convicts is pending and the same did not include a mercy petition.

Mukesh had raised preliminary objections against the Centre’s plea.

Counsel appearing for him referred to the order passed by the Division Bench of the High Court in his plea in connection with the first death warrant and stated that the Court had then directed the convicts to approach the Supreme Court for redressal of grievances pertaining to death warrants.

Thus, for the same reason, the High Court could have not entertained the Centre’s plea, it was submitted.

It was also contended that the Centre had no locus in the case.

Counsel for Mukesh had further argued that the Delhi Prison Rules did not affirmatively provide for “piecemeal execution” of a common order of sentence and the Centre’s reliance on mere lack of prohibition of the same could not be accepted in criminal law.

The Court was also informed about the Centre’s application in the Shatrughan Chauhan case in the Supreme Court to update the guidelines on execution of death-row convicts. It was contended that the Centre was aware of the ambiguity with respect to piecemeal execution and had hence sought to settle the issue before the Supreme Court.

Mukesh also disputed the Centre’s allegation of co-ordinated delay on the grounds that the same was not supported by the record of the case.

The other three convicts - Pawan, Akshay and Vinay - also opposed the Centre’s plea.

The Court agreed with Centre’s stance that "appeal or application" under Rule 836 did not include a mercy petition. It, nonetheless, pointed out that the provision did not give a green single to execute the death warrant qua other convicts.

It said,

“In the said proviso ( to Rule 836), it is nowhere mentioned that of mercy petition of one convict is pending, the deaths enetnce of other co-convicts shall be executed..”
Delhi High Court

In support of simultaneous hanging of all the four convicts, the Court also relied on the Supreme Court's decison in Harbans Singh vs State of UP and remarked that it would be a sheer travesty of justice and the course of justice would be perverted, if for the same offence, one convict "has to swing and pay the extreme penalty of death warrant" and while others are spared.

The Central Government has already preferred an appeal against the decision.

The Centre was represented by Solicitor General Tushar Mehta.

Mukesh was represented by Senior Advocate Rebecca John with Advocate Vrinda Grover.

Advocate AP Singh represented the remaining three convicts.

Read the Judgement:

VINAY SHARMA & ORS.pdf
Preview
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