Nirbhaya Case : Trial Court Dismisses Plea By Tihar Jail For Fresh Death Warrant Against Convicts [Read Order]

A Delhi Court on Friday dismissed the plea moved by Tihar authorities seeking fresh death warrants against the convicts in the 2012 Delhi gangrape and murder case.

"The plea is bereft of merits, death warrant can't be issued on the surmises of conjectures", ASJ Dharmender Rana of Patial House Courts said.

The court has held the application to be premature, and has granted leave to the state to prefer the same at an appropriate stage.

The Court noted that the time period of 7 days granted by the Delhi High Court for the convicts to exhaust their legal remedies was not yet over. Since the convicts have time till February 11 for that, the plea is premature, the judge observed.

The petition was moved under section 413 of Criminal Procedure Code, as mercy petitions of three out of the four convicts, namely Mukesh, Vinay and Akshay, have been rejected by the President of India.

It was mentioned in the application that after the trial court's order dated 31/01/2020, wherein the date of execution was stayed sine die, the President has rejected the mercy pleas of both Vinay and Akshay on February 1 and February 5 respectively. 

A fresh death warrant was sought on the ground that, as on today, none of the petitions of any of the convicts is pending before any court or constitutional authority, and accordingly, nothing survives as on today.

Public Prrosecutor Irfan Ahmad argued that the trial court can issue a fresh death warrant against all the convicts as none of their applications are pending before any court at this moment. 

"What made you presume that Pawan is not going to file his mercy or curative petitions', judge asked the Prosecutor during the hearing.

"If he wanted it, he should've done it after the last order of this court', Prosecutor responds.

The lawyers for the convicts submitted that the application was premature as the 7 days period granted by High Court was yet to be over.

Amicus Vrinda Grover countered the application by relying on the recently pronounced judgement of the High Court.

She argued that the said order clearly directs a period of 7 days to be given to the convicts to utilise their legal remedies.

She further stated that it is clear from the High Court's order that any action or application against the convicts can only be moved after the expiry of the said period of 7 days.

On February 5, the Delhi High Court had upheld the stay put by the Trial Court on the execution of the four convicts. . However, the High Court said that the convicts must exhaust their legal remedies within seven days, failing which the authorities must proceed as per law. The HC said that the convicts cannot be executed separately, when they have been convicted and sentenced by a common order.

They were scheduled to be executed on February 1 at 6 AM, as per the death warrant issued on Janaury 17. This was stayed by ASJ Dharmender Rana on the eve of scheduled execution on the ground that all the convicts have not exhausted their legal remedies. 

The Central Government has moved the Supreme Court against this order of the High Court. The apex court has adjourned the plea till February 11, the last day of time granted by the HC.

Convicts Mukesh Kumar and Vinay Sharma have both filed mercy petitions, which have been rejected by the President. In this light, the government has urged the apex court to allow them to be hanged separately. Akshay Singh has filed his mercy plea before the President, soon after his curative petition was dismissed by the Supreme Court. Pawan Gupta had filed an appeal regarding his claim of juvenility at the time of the incident. This has been rejected along with a review petition against the same. Pawan also has the remedy of filing curative petition against conviction, after which there is the option of filing a mercy plea as well 

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