Jeetendra Kumar Jha, the lawyer representing the parents of Jyoti Singh (Nirbhaya) says that the decision to file a curative petition is a ploy by the convicts’ lawyers to buy time. He spoke with SheThePeople.TV in an exclusive conversation and deconstructed the legal remedies used by all the convicts.

Tihar Jail administration sent out notices to the four convicts— Mukesh Singh (31), Pawan Gupta (24), Vinay Sharma (25) and Akshay Kumar Singh (33) — on October 29 informing them that they only have seven days left to file their last legal aid i.e. the mercy petition. In response to it, ML Sharma, the counsel of Mukesh and AP Singh, the counsel of the other three convicts decided to challenge it. The two lawyers have also said that they are also yet to file curative petitions for the convicts.

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The curious case of curative petitions

Talking about convict Mukesh Singh’s scope of filing a curative petition, he says, “His request for curative petition was denied by the senior advocates of the legal aid committee of Supreme Court because for curative petition a designated senior advocate has to affix his certificate to show that certain case is fit to apply for a curative petition. After it was rejected, he has written to the Tihar Jail authorities that he wants to file mercy petition and for drafting it, he has requested to be given some advocate,” he says adding that it is on the record before the sessions court.

Jha also informed us that no judge is handling this case after the transfer of predecessor judge, Anu Grover Baliga. So, since the last two dates, no judge is there.

Among the four convicts, only Akshay has an opportunity to file a review petition as he did not filed it along with the other three convicts but the time limitation for filing it has lapsed way back, says Jha.

Only three convicts have filed review petitions

Until now, the three convicts have filed the review petitions in the apex court to review their 2017 judgement in which they had upheld Delhi High Court’s order of capital punishment. The SC had rejected their review petitions as well. “I have heard that while hearing the review petition of the three convicts, the SC bench had also summoned Akshay and asked him if he wants to file a review petition but he denied it. It has not been documented anywhere,” Jha recollects adding that basically the counsels of the convicts are “dragging” the case.

“Our application for hanging them was filed in December 2018 after which they were given opportunities to prefer their remaining remedies but till date, they are just sitting, lingering over the matter one by one as the law is clear that if there are several convicts in a single case then the sentence of hanging can only be executed once with all convicts on the same footing. It is not like if one convict has lost out on all the legal remedies including the mercy petition then he alone will be hanged,” states the lawyer of the victim, in this case Jyoti Singh’s parents.

One convict tried to file a plea to declare him a juvenile

Jha also affirmed that Vinay, who attempted to commit suicide in 2016, has referred one application with the Delhi High Court but it couldn’t be listed. “He had filed a petition claiming that he was a juvenile at the time of the crime with the sessions court after his review plea was dismissed by the SC. The sessions court dismissed it after which he preferred a revision of the sessions court order before the HC but it couldn’t be listed because there were defects in it,” he explains.

On the counsels wanting to file a curative petition, Jha discards their statements saying, “The persons, who are not designate senior advocates, cannot claim that they have a right to file a curative petition. Mr AP Singh and Mr ML Sharma’s statements are premature. They don’t have a right to opine such things.”

Will justice be served in seven days?

Talking about if justice will be served in a week’s time as Tihar Jail claims that the convicts’ legal remedies will be exhausted, he says, “No, because we have pressurized the state machinery by filing our application for execution before the sessions court and the review petitions were dismissed in July 2018. After that, neither any application nor any appeal or any curative petition was filed by either of the convicts till we filed this application for execution. Basically, the application for execution should have been filed by the state stating that dates for execution but by not doing that the state Govt. is also merely beating around the bushes.”’

Jail administration’s notice illegal’

Lastly, he also called out the insignificance of the jail authorities’ notice as he says, “In law, there is no provision that jail administration has the power to advise the convicts to avail their legal remedies. But in the jail manual, the convicts have the right that from the date on which the SC’s order is communicated to seven days, they can prefer their clemency claim.

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Our application for hanging them was filed in December 2018 after which they were given opportunities to prefer their remaining remedies but till date, they are just sitting, lingering over the matter one by one as the law is clear that if there are several convicts in a single case then the sentence of hanging can only be executed once with all convicts on the same footing.

Case History

On December 12, 2012, a physiotherapy student named Jyoti Singh aka Nirbhaya exited a South Delhi mall at around 10.30 in the night after watching a movie with a male friend. The male friend and Jyoti took a bus to reach home. The bus had only six people inside, including the driver and conductor, who first beat up the friend and then brutally gang-raped Jyoti in the moving bus. They, then, threw Jyoti out on the road.

Among the six convicts who were initially arrested, the prime convict Ram Singh committed suicide shortly after getting arrested. The other one, Mohammad Afroz alias Raju was declared juvenile aged 17 years and six months on the day of the crime. He served a sentence of three years in a reform facility before being released in 2015.

Picture credit: IB Times

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