Shakti Mills gang-rape case: attorney general to file reply on constitutional validity of section 376(E)

Mumbai: The Bombay high court has asked the Attorney General of India to file a reply on the constitutional validity of Section 376(E) while hearing a plea by the defence lawyers in the Shakti Mills photojournalist gang-rape case. Section 376(E) of the Indian Penal Code came into force after the Nirbhaya case in New Delhi in December 2012, and facilitates both life and death penalty for repeat offenders.

The high court has refrained from taking a final view on the framing of charges under section 376(E) in the case. This is probably the first time that section 376(E) is being applied in any case in the country.

"At this stage we would refrain from making any final view on the issue of tenability of framing of additional charge," the court said. "We do not express any opinion and state that non-inteference of this court shall not be construed as  approval of allowing the application."  

The sessions court had convicted five men in the Shakti Mills photojournalist gang-rape case and the Shakti Mills telephone operator gang-rape case. Three of the five convicted were involved in both cases and the prosecution had moved the court to allow charges to be framed under section 376(E) against them, which the court allowed.

The defence had challenged this decision on the grounds that the men were not repeat offenders as per the definition of the law.

The court had appointed noted criminal lawyer Abad Ponda as Amicus Curae in the case. Mr Ponda said, the court had erred in allowing the addition of charges after passing the judgement.

Advocate General Darius Khambata argued that the judgement meant both conviction and sentencing and in this case since the sentencing was not completed, the judgement had not been passed.

The decision of the Bombay high court allows the trial of the three men convicted in both cases to continue in the Sessions Court after the framing of charges under section 376(E).