The four death row convicts in the Nirbhaya gang rape-murder case will not be hanged on January 22 as scheduled with the Delhi government on Wednesday telling the high court that the execution has to be postponed in view of the pendency of a mercy petition by one of them.
As authorities and the victim's mother contended that the four men were 'frustrating' and 'intentionally' delaying the legal process by filing curative and mercy pleas in stages to postpone their execution, the Delhi government recommended rejecting Mukesh Kumar Singh's mercy plea to the President and forwarded it to the Lieutenant Governor.
Deputy Chief Minister Manish Sisodia told reporters that the action was taken at 'lightning speed'.
The high court pulled up the authorities, saying there has been no application of mind and that the system is suffering from cancer in response to the submission that as per prison rules they have to wait for the other co-convicts to exhaust their mercy pleas as well.
The court made the remarks while declining to hear the plea by Mukesh challenging the death warrant.
The high court said there is no error in the trial court's order, adding challenging the order before it amounted to playing one court against another.
The Delhi government and Tihar jail 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 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 told Delhi government standing counsel (criminal) Rahul Mehra in response to his submission.
Besides Mukesh, 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 bench while declining to entertain Mukesh's plea gave him liberty to challenge the death warrant in a sessions court.
Mukesh later approached the court, seeking postponement of the date of his execution on the grounds that his mercy petition is pending with the President.
The plea was mentioned before Additional Sessions Judge Satish Kumar Arora who issued notice to the state and parents of the victim for Thursday.
The high court said it was of the opinion that once the Supreme Court dismissed Mukesh's 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.
It said 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?
"The intent of the law is to give you reasonable amount of time to approach the court. Your time started ticking from May 5, 2017. Even after October 29, 2019 (when first notice was sent to the convicts informing them they can move mercy plea), you did nothing.
"You cannot wait for the co-convicts pleas to be decided, to move the courts," the bench said.
The prison authorities said that under the rules, they will have to wait for the mercy plea to be decided before executing the death warrant.
In response to this submission, the court said '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 we see a stratagem to exploit the system, which is oblivious about it."
Mehra submitted that the January 22 date for execution was 'academic' since if no decision is taken till noon of January 21 on the mercy plea, then prison authorities have to move the sessions court for a fresh death warrant.
If mercy plea is rejected after January 22, then also a fresh death warrant has to be sought from trial court in respect of all the convicts, he said.
Besides pulling up the prison authorities, the court expressed displeasure at the delay in filing curative and mercy pleas by Mukesh after the Supreme Court in May 2017 dismissed the appeals of the four convicts against their conviction and death sentence.
The bench ticked off the prison authorities for the delay on their part in communicating to the convicts to move their mercy pleas after their appeals were dismissed by the apex court.
The prison authorities had only on October 29 and December 18 last year issued notices to the convicts to move their mercy pleas.
Mehra 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.
The review pleas of the other three had been dismissed in July 2018.