In an urgent sitting held on Saturday evening, the Delhi High Court issued notices to the four convicts of the Nirbhaya rape case, in a plea challenging the trial court order which had put a stay on their execution.
This revision petition is moved by Ministry of Home Affairs, against the order dated 31/1/2020 wherein ASJ Dharmender Rana had stayed the execution date issued against the four convicts till further orders are passed.
During the proceedings, it was categorically argued by Solicitor General Tushar Mehta that the trial court erroneously interpreted Rule 836 of Delhi Prison Rules, to hold that pendency of mercy petition of even one of the convicts would automatically stay the execution of the death sentence all the other co convicts.
He submitted that the word 'application' in Rules 836 and 856, refer to judicial applications such as SLPs and criminal appeals. It does not include a mercy petition, as the same is not a judicial application but an executive application.
It was further submitted that the Additional Sessions Judge acted beyond its jurisdiction in
postponing the death warrants issued against the said four death convicts, and more specifically against Mukesh, who has exhausted all his legal remedies.
The judgment of the Supreme Court in Shatrughan Chauhan v. Union of India is cited to argue that the delay caused in hanging of a death row convict, whose mercy plea has been rejected, has a de-humanizing effect on such a convict.
It was also argued that the ASJ did not have the jurisdiction to pass such an order, and in exercising his jurisdiction, he has wrongly interpreted Rule 836 r/w Rule 850 and 854 of the Delhi Prison Rules, 2018.
Moreover, Rule 840 of the said Prison Rules clearly states that it is the State Government which is empowered to decide as to whether the execution should be postponed" in case the mercy petition is filed beyond the stipulated period of seven days.
It was further contended that Rules 836, 850 and 854 have also been wrongly interpreted as a joint reading of the aforesaid provisions makes it clear that it is only in case of pendency of the "mercy petition" of the concerned prisoner/convict, that execution of his/her death would remain stayed during the aforesaid period.
The petition submitted before the court highlights that the four convicts are using delaying tactics to frustrate the process of justice. It states that:
'The said four convicts by filing their respective review petitions or curative petitions or mercy petitions, one after another and that too at such a belated stage i.e. after the issuance of death warrants are in fact being permitted to play with
the majesty of law leading to unnecessarily prolonging the execution of the death sentence awarded to them in accordance with the law, thereby taking the judicial process for a ride.'
Highlighting the need to interpret the law in favour of the process of justice, SG Tushar Mehta challenged the interpretation of the ASJ by submitting that 'if this is how the law is to be interpreted, there won't be any end to it.'