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Nirbhaya case: SC dismisses plea of death row convict Mukesh against rejection of mercy plea

The bench said all relevant material including judgements pronounced by trial court, high court and Supreme Court were placed before the President when he was considering the mercy plea of the convict.

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Last Updated: Jan 29, 2020, 05.02 PM IST
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The court said that alleged sufferings in prison can't be grounds to challenge the rejection of mercy petition.
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NEW DELHI: The Supreme Court Wednesday dismissed the petition of death row convict Mukesh Kumar Singh in the Nirbhaya case challenging the rejection of his mercy plea by the President, and said that its "quick consideration" and "swift rejection" does not suggest non-application of mind or it being pre-determined.

The apex court held that all the documents, including the verdicts delivered in the case by the courts, past criminal history of convict, economic condition of his family, were taken into consideration by the President while rejecting the mercy plea.

A three-judge bench, headed by Justice R Banumathi, said that alleged sufferings in jail cannot be a ground to seek judicial review of executive order passed under Article 72 of the Constitution, which deals with power of President to grant pardons and to suspend, remit or commute sentences in certain cases.

"In the result, we do not find any ground for exercise of judicial review of the order of the President of India rejecting the petitioner's (Mukesh) mercy petition and this petition is liable to be dismissed," said the bench, also comprising Justices Ashok Bhushan and A S Bopanna.

It observed that documents including DNA and odontology reports, dying declaration, case diary and charge sheet of the case were already considered by the trial court, high court as well as the apex court and the defence put forth by Mukesh was already rejected.

"It is not necessary that each and every material relied upon by the petitioner-accused should have been placed before the President. There is no merit in the contention of the petitioner that relevant materials were kept out of the consideration of the President," the bench said in its 25-page order.

The bench did not accept the contentions of the convict's counsel that Mukesh was allegedly kept in solitary confinement for over eight months.

The apex court referred to an affidavit filed by Director General (Prisons) which said that he was kept in a separate room having iron bars open to air for security reasons and the same can not be equated with solitary confinement.

"This cannot therefore be a ground for review of the order rejecting the petitioner's mercy petition," the bench said.

Dealing with arguments of the convict's counsel that the mercy plea was rejected with "lightening speed", the bench said: "As held by the constitution bench..., the court shall keep in mind that where the power is vested in a very high authority, it must be presumed that the said authority would act carefully after an objective consideration of all the aspects of the matter.

"Merely because there was quick consideration and rejection of the petitioner's mercy petition, it cannot be assumed that the matter was proceeded with pre-determined mind".

The apex court agreed with the contentions of Solicitor General Tushar Mehta that delay in disposal of mercy petition might be a ground for seeking judicial review of the order passed under Article 72 Constitution.

"But the quick consideration of the mercy petition and swift rejection of the same cannot be a ground for judicial review of the order passed under Article 72/161 of the Constitution. Nor does it suggest that there was pre-determined mind and non-application of mind," the bench noted.

It said that exercise of the power under Articles 72 and 161 (power of the Governor to grant pardons and to suspend, remit or commute sentences in certain cases) is a matter of "discretion" and the apex court has taken the consistent view that executive orders under these Articles "should be subject to limited judicial review."

The bench noted that Tihar jail superintendent had sent documents - nominal roll of Mukesh, his latest medical report, trial court verdict and details of punishment - for consideration of the mercy plea as probably, these were the only materials available or called from him.

It also perused two files containing the communications of the Ministry of Home Affairs, Delhi Government and office of Delhi's Lieutenant Governor and also the file containing the note put up before the President.

"By perusal of the note, we have seen that all the documents were taken into consideration and upon consideration of the relevant records and the facts and circumstances of the surrounding crime, the President has rejected the mercy petition," it said.

The bench did not agree with the submissions of convict's counsel that jail superintendent had not sent his recommendations in the nominal roll.

Mukesh had also alleged that he was tortured and sexually abused in the prison.

Mukesh is one of the four men on death row for the 2012 gang rape and murder of a physiotherapy intern in Delhi.

The trial court has issued black warrants for the execution of the four convicts -- Mukesh (32), Pawan Gupta (25), Vinay Kumar Sharma (26) and Akshay Kumar (31) -- at 6 am on February 1.

The president had rejected Mukesh's mercy plea on January 17.

Of the other three, the apex court has also rejected the curative petition of Vinay.

Akshay has also moved the top court on Wednesday with a curative petition while convict Pawan is yet to file a curative plea.

The 23-year-old woman, who came to be known as 'Nirbhaya', the 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.

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