The Bombay High Court Thursday refrained from expressing a view on the sessions court’s decision to allow the framing of an additional charge under IPC section 376 E of the Criminal law (Amendment) Act, 2013 against three persons convicted in the Shakti Mills gangrape cases. The additional charge may attract the death penalty for the trio.
The court, however, observed that the constitutional validity of section 376 E needs to be examined, as it overlooks the ‘rarest of rare’ condition required for handing out the death sentence to a convict.
The court, thus, enabled the sessions court to proceed with the charge framed against Vijay Jadhav (18), Mohammed Qasim alias Bangali (20) and Salim Ansari (27), who have been convicted in two separate offences of gangrape — of a telephone operator on July 31, 2013, and that of a photojournalist on August 22, 2013. They have pleaded not guilty to the charge. In the trial court, the prosecution has so far examined two witness in proceedings related to the additional charge.
A division bench of Justices N H Patil and A M Thipsay, however, stated, “We observe that at this stage, we would refrain from expressing any conclusive views on the application of Section 211(7) (of the Criminal Procedure Code under which the prosecution had filed its application in the sessions court) and Section 376 E of the IPC and we keep these issues open, making it further clear that we will not express any opinion. Non-interference of this (High) court in its writ jurisdiction should not be construed as approval of the view of the trial court in allowing the application by the state.”
Issuing a notice to the attorney general, the High Court, however, took note of the accused’s challenge to the constitutional validity of section 376E under the Central government statute. Under the section, if a person who is previously convicted of an offence of rape or gangrape under three sections of the amendment Act, and is subsequently convicted for similar offences, then he shall be punished with imprisonment until the end of his natural life or death.
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Justice Patil remarked that the section that attracts the death penalty for a repeat offence of rape or gangrape, gives a “go-by” to the “rarest of rare” condition that courts take into account while handing out capital punishment to an accused. The court said the constitutional validity of Section 376 E will, therefore, have to be examined. The attorney general has been asked to respond to the notice in six weeks.
The court said the state government, the accused and amicus curiae Abad Ponda had raised “arguable issues” pertaining to Section 376 E. The court, however, asked why two cases of gangrape in the Shakti Mills compound were tried simultaneously. “To bring more credibility to the previousness (sic) of the conviction under 376 E, would it not be appropriate to finish the trial in one case first?” Justice Patil asked.
Advocate general D J Khambata told the court that while the conviction and life sentence had been handed out to the accused in the gangrape of the telephone operator, they were yet to be sentenced in the gangrape of the photojournalist.
Khambata argued, “Conviction may be 10 years ago, one day ago or one minute ago. The idea is not for the prosecution to show serial mentality. Even if he is convicted twice, it was important to give very harsh punishment to someone committing these offences again. If the (subsequent) conviction is in a matter of minutes, it does not reduce the gravity of the crime.”
The court observed that such ghastly acts were undoubtedly condemnable, but added that the charge can have drastic consequences as a person may be hanged if found guilty.