Mumbai: In a setback to three of the convicts in the photojournalist`s rape case, the Bombay High Court on Thursday refused to interfere "at this stage" with the sessions court`s decision to frame a fresh charge for a repeat offence of rape, which can attract the death penalty.
The order of the bench of Justices N H Patil and Abhay Thipsay came on a petition filed Vijay Jadhav, Kasim Bengali and Mohammed Salim Ansari, against the trial court`s March 24 order on prosecution`s application for additional charge against them under section 376 (e) of the Indian Penal Code.
As these three were also convicted for the gang-rape of a telephone operator -- which had taken place a month earlier in the same Shakti Mills compound -- the prosecution, after their conviction in the photojournalist case, sought framing of charge under the newly introduced section 376 (e).
Section 376 (e) provides for the maximum sentence of death in the case of a repeat offence of rape. It was added to section 376 (rape) after the December 2012 Delhi gang-rape.
"At this stage we would refrain from expressing any conclusive view about applicability of section 376 (e) and the tenability of framing of additional charges post-conviction. We keep these issues open. But our interference is not warranted at this stage of trial. Our non-interference in the order of the sessions court shall not be construed as approval of the trial court order allowing the application," HC said.
The court, however, added that it would consider the larger issue of constitutional validity of section 376 (e), and issued notice to the Attorney General of India and posted the petition for hearing after six weeks.
Today`s order makes it possible for the sessions court to go ahead with examination of witnesses after framing of additional charge and hear arguments on the quantum of sentence in the photojournalist`s rape case.
Earlier, defence lawyer Moin Khan argued that fresh charges cannot be applied once a judgement is passed. However Advocate General Darius Khambata contended that a judgement is complete only after the sentence is passed (which is not the case here).