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The Delhi High Court on Wednesday refused to entertain a petition by Mukesh Kumar, one of the four death-row convicts in the Nirbhaya case, challenging a sessions court order fixing the date of his hanging in Tihar jail on January 22, 2020. But the city government said he could not be executed since his mercy plea is pending.
A bench of Justices Manmohan and Sangita Dhingra gave Kumar the liberty to move the sessions court with his prayer after his lawyer made a submission to that effect.
The court observed that once the Supreme Court has dismissed the petitioner’s criminal appeal confirming the death sentence as well as the review and curative petitions, Kumar could not challenge the January 7 order of the additional sessions judge (ASJ) fixing the date of hanging before the high court as the ASJ’s order was nothing but carrying out the orders of the apex court.
“In the event, the petitioner is aggrieved by any such order, he shall have to approach the apex court,” the bench said.
After hearing the counsel for the petitioner and the Centre and others, Justices Manmohan and Dhingra said there was no error in the January 7 sessions court order as till the date of that order, the petitioner had neither filed a review nor a curative petition.
“If the petitioner is of the opinion that the date of execution mentioned in the impugned order needs to be set aside in view of any subsequent event, then he must approach the court that passed the impugned order,” it noted.
During the proceedings, the Delhi government informed the court that the four convicts – Mukesh, Vinay Sharma, Akshay Kumar Singh and Pawan Gupta – could “surely not be hanged” on January 22 since a mercy petition by Kumar is pending.
It said even if the mercy plea is rejected, a convict has to be given notice of 14 days before the execution.
The city government submitted that a mercy petition by one of the convicts was with its home department and the plea would be forwarded to the lieutenant governor’s office. The petition would, thereafter, be sent to the Union home ministry, which will forward it to the President, it said.
Kumar had challenged before the high court the order of execution passed by the sessions court on the ground that he has a constitutional right to seek mercy and his mercy petition is pending.
He had contended that even if his mercy petition is rejected, he should be given a minimum notice of 14 days before the scheduled date of execution.
The sessions court had issued the death warrants, saying the convicts would be hanged in Delhi’s Tihar jail at 7 am on January 22.
The Supreme Court had on Tuesday dismissed the curative petitions of Kumar and Vinay Sharma, saying that no case was made out.
A five judge bench, headed by Justice NV Ramana, while rejecting the applications for oral hearing, had also observed, “The applications for stay of execution of death sentence are also rejected.”
The bench had said, “No case is made out within the parameters indicated in the decision of this Court in Rupa Ashok Hurra…(case of 2002).”
The sessions court order had come after the parents of the 23-year-old paramedical student, who was gang-raped and thrown out of a moving bus in December 2012, moved court seeking to expedite the procedure to hang all the four convicts in the case.
The student died at a Singapore hospital where she was airlifted for treatment.
One of the key accused, Ram Singh, had allegedly committed suicide in Tihar jail during the pendency of the case, while the sixth was a minor at the time of the commission of the crime and was let out after serving a three-year remand in a juvenile justice home.