The Delhi high court on Wednesday expressed displeasure over the 'strategy' adopted by the four death row convicts in the Nirbhaya gang rape and murder case to delay the process of execution, saying the system was being exploited.
A bench of Justices Manmohan and Sangita Dhingra Sehgal questioned the counsel for convict Mukesh Kumar Singh, 32, why he kept waiting for two-and-a half years and did not file curative or mercy petitions after the Supreme Court dismissed his appeal against conviction and confirmed the death sentence awarded to him by the trial court.
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 it was a stratagem devised by the convicts on how to prolong the matter as they kept on sitting after dismissal of their appeals by the Supreme Court.
"On May 5, 2017, the Supreme Court dismissed your Special Leave Petition (SLP) and confirmed the death sentence. What restrained you from filing the curative petition. You were sitting and waiting for two-and-a half year," the bench said.
"A clever prisoner does this. He keeps on waiting for issuance of death warrant and once it is issued, he then challenges it. Yakub Abdul Razzaq Memon judgment clearly says the convict should file the curative petition in a reasonable time," it said.
The bench said the limitation period for filing curative petition started from May 5, 2017, when the apex court had dismissed their appeals and not from December 18, 2019, when the Tihar Jail administration issued notice to the four convicts to file mercy petition in seven days.
It also noted that the apex court in July last year dismissed Mukesh's review petition but further remedies were being availed now.
The bench also pulled up the prison authorities for the delay on their part and not communicating timely to the convicts that they can file mercy pleas after their appeals were dismissed by the Supreme Court in 2017.
It said the notice which was issued to the convicts on October 29 and December 18, 2019, should have been done much earlier after the apex court's 2017 verdict.
"Put your house in order. Your house is in disarray. The problem is people will lose confidence in the system. Things are not moving in the right direction.
"The system is capable of being exploited and is also being exploited. We see a stratagem to exploit the system, which is oblivious about it.
"There is a clear strategy on the part of convict," the bench said.
The prison authorities had only on October 29 and December 18 last year issued notices to the convicts asking them move their mercy pleas in seven days.
To this Delhi government standing counsel (criminal) Rahul Mehra, representing the jail authorities, told the bench the delay was due to the reason that one of the convicts -- Akshay -- had not filed his review plea till 2019 and it was dismissed only on December 18.
He said as per rules, unless all the four convicts exhaust their remedy of mercy petition, the jail authorities cannot proceed.
"If this pattern continues, it will further delay the process. This will frustrate the process and they (convicts) have done it in the past.
"God knows how much time will it take our system," he said.
At the end of the hearing, the bench said, "In a hierarchical system like ours, you cannot play one court against another".
To this, senior advocate Rebecca John, representing Mukesh, said: "I am not playing any games. I am not choosing any forum. I cannot say anything about the other three convicts."