The Bombay High Court Wednesday said it was necessary to examine whether or not the additional charge of Section 376 E of the Criminal law (Amendment) Act, 2013, which could attract capital punishment, could be framed against three accused after the judgment in two separate cases of gangrape in the Shakti Mills compound was pronounced by the trial court.
Asking the public prosecutor to inform the trial court to defer its proceedings till Thursday, the High Court said it was also necessary to examine whether the gangrape of the telephone operator, for which the trio was convicted on the same day as that of a photojournalist, could be termed a “previous” offence committed by the accused.
The court also observed that cases like the Shakti Mills gangrapes, in which the accused are convicted for two gangrapes on the same day are rare. Justice Patil observed, “The consequences are drastic. A person could be hanged if your (prosecution) argument is accepted.”
The two questions in law emerged for the court’s consideration as the application of Section 376 E in the Shakti Mills gangrape cases of July 31, 2013 and August 22, 2013, was debated before the Bombay High Court Wednesday.
The accused have moved the High Court against a March 24 order of a sessions court that allowed an application by the prosecution to frame the additional charge against Vijay Jadhav (18), Mohammed Qasim alias Bangali (20) and Salim Ansari (27).
The application of the section enables the prosecution to seek capital punishment for the trio citing that they were “habitual offenders”. The application also challenged the constitutional validity of Section 376 E.
The court appointed lawyer Abad Ponda as amicus curiae to assist the court. Justices N H Patil and A M Thipsay felt it would not be proper to stay the proceedings before the trial court. The court, however, asked public prosecutor Sandip Shinde to inform the trial court to defer the proceedings before it until Thursday.
Citing provisions in the Criminal Procedure Code (CrPC), Bangali’s lawyer Moin Khan told the court that the trial court had not heard the defence while allowing the prosecution’s plea to frame the additional charge against the accused. He added that the CrPC provides that a court can frame a charge against an accused at any time until a judgment in a case is pronounced, but not after that.
Shinde, however, countered saying that the quantum of sentence is an integral part of the judgment. So it cannot be said that the charge was added after the judgment was pronounced, as the accused in the case have not been awarded their punishment sentence, he argued.
Justice Thipsay said, “It could have been done if the judgment was not pronounced. The question is whether it can be done after that.”
Ponda told the court that as per the CrPC, the previous conviction, as required under 376 E, has to be on the date that the charge (376 E) is framed against the accused. “Previous means previously convicted and not previous in time,” Ponda said.
The arguments will continue before the court on Thursday.