Nirbhaya case: SC issues notices to 4 death row convicts on Centre's appeal against HC verdict

The Supreme Court Tuesday sought response from the four death row convicts in the Nirbhaya gang rape and murder case on the Centre's appeal against the Delhi High Court verdict which had refused to set aside the stay on their execution. The apex court also granted liberty to the authorities to approach the trial court for obtaining fresh date for execution of death warrant.

A bench comprising Justices R Banumathi, Ashok Bhushan and A S Bopanna made it clear that pendency of appeal filed by the Centre and the Delhi government before it "will not be an impediment for the trial court" to consider the request for issuance of fresh date for execution "on its own merits". It noted the submissions of Solicitor General Tushar Mehta, appearing for the Centre and Delhi government, that one week's time granted by the high court to these convicts is expiring today and no further steps have been taken by them to avail any remedy.

Mehta told the bench, which posted the matter for hearing on February 13, that execution of these convicts is not for "enjoyment " as the authorities are only executing the "mandate of the law". Referring to the delaying tactics of the convicts, he said three of them have exhausted their remedies but one of them, Pawan Gupta, has not yet filed either a curative plea in the apex court or a mercy petition before the President.

He said the court has to keep in mind the impact of this situation on the society as despite the appeals of the convict being dismissed by the top court in 2017, the authorities were "struggling to execute them even now". Mehta referred to the alleged encounter killing of four accused in the gang rape and murder case of a woman veterinarian in Hyderabad and said, "People were celebrating after the incident and this was because people have started losing faith in the system. This reflects poorly on our system."

At the outset, the bench said, "The rules require that you have to wait if mercy petition is pending. If nothing is pending, you can move trial court for fresh death warrant". Mehta said the situation was "tricky" as the trial court had earlier suspended the death warrant and the high court later granted one week to the convicts to avail their remedies.

"You can go back to the trial court. There is no impediment in seeking issuance of fresh death warrant. No one can be compelled to file mercy petition," the bench said. While referring to Rules of the Delhi Jail Manual, Mehta said the issue was regarding high court's direction that these convicts have to be executed simultaneously and not separately.

He said mercy petition is "individual" in nature and the moment authorities would move the trial court for issuance of fresh date for execution, convict Pawan Gupta may file mercy petition and then the high court direction regarding simultaneous execution would come in the way. The bench told Mehta that issuance of notice to the convicts on the appeal would lead to further delay in the matter.

"We are not saying anything on execution for enjoyment. It is the mandate of the law and we are executing it," Mehta said. When the bench said that there is a bar on execution if mercy petition is pending, Mehta said, "It would be qua the convict (who has filed it) only, not others. One person, by his inaction, cannot stay it for others. Mandate of law cannot be frustrated like this".

He said after the high court order, the authorities had approached the trial court but it refused to issue fresh date for execution saying "it will be sinful to issue death warrant" at this stage. "They (convicts) are acting in tandem. Please see the impact of this on the society," he said while referring to the Hyderabad incident.

The bench said that unless the authorities would approach the trial court for issuance of fresh date of execution, "nothing will move". While seeking a stay on the high court order, Mehta said that in the circumstances, it is like "playing at the hands" of these convicts as the trial court would not issue fresh date for execution by saying that this is matter of life and death.

While issuing notices to the convicts, the bench said the notices be served to them today itself through the Tihar Jail Superintendent. The trial court had on January 31 stayed "till further orders" execution of the four convicts in the case -- Mukesh Kumar Singh (32), Pawan (25), Vinay (26) and Akshay (31), who are lodged in Tihar Jail.

Mercy pleas of Mukesh, Vinay and Akshay have already been dismissed by the President. Pawan is yet to file either curative plea or mercy petition. Plea filed by Mukesh challenging the rejection of his mercy petition was dismissed by the apex court.

Vinay approached the top court Tuesday challenging the rejection of his mercy petition. The 23-year-old physiotherapy intern, who came to be known as 'Nirbhaya' (fearless), was gang-raped and savagely assaulted on the night of December 16, 2012, in a moving bus in South Delhi. She died of her injuries a fortnight later in a Singapore hospital.

Six people including the four convicts, Ram Singh and a juvenile -- were named as accused. Ram Singh, the prime accused, allegedly committed suicide by hanging himself in Tihar jail days after the trial began. The juvenile, who was said to be the most brutal of the attackers, was put in a correctional home for three years and was released in 2015.