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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
B.P. DHARMADHIKARI, REVATI MOHITE DERE, JJ.
Mohd Salim Mohd Kudus Ansari - Appellant
Versus
State of Maharashtra - Respondent
Writ Petition No. 1181, 1182 of 2014, 527 of 2018
Decided On : 03-06-2019
Constitution of India, 1950 – Articles 21, 19 – Indian Penal Code, 1860 – Section 376-E, 72, 364, 53, 45, 299 – Code of Criminal Procedure, 1973 – Section 219, 432, 433 – Narcotic Drugs and Psychotropic Substances Act – Section 31 – Punishment for repeat offenders – Constitutional Validity of Section 376 E – Constitutional validity of Section 376-E inserted in the Indian Penal Code by the Criminal Law (Amendment) Act of 2013, with effect from 3rd February 2013, is under challenge before us, in these petitions – Held, Parliament, while making its desire clear also did not encroach on the Courts power and discretion, and left the field of punishment open for the Court, to choose a "just" punishment. – It has, therefore, kept the choice in the area, between life imprisonment for rest of ones natural life or death, open for the Court to select and to formulate the most deserving punishment, in the facts of the case. – It has, therefore, not made death mandatory under Section 376-E and has left the scope for its application on various factors, having a bearing on "death penalty". – Choice left open by Section 376-E itself attracts the judicial discretion and all principles governing the award of the death penalty as per Section 354(3) Cr.P.C. – Union of India nor the State accept that death is mandatory under Section 376-E IPC. – Court have found that Section 376-E IPC neither introduces a discordant note nor introduces any new paradigm in the criminal justice administration. – Legislative developments reveal that it only adds to the efforts being made by the nation to infuse deterrence in the wrong elements and to caution them of serious consequences which may ensue if they continue to tread on the same road. – Attempt is to strengthen the law. Convicts loose their liberty under Article 21 to a certain extent and one who has committed a heinous offence of rape or has repeated it, cannot be allowed to put his life before the lifelong plight of the survivor. – Needless to state, that in cases where Section 376-E is applied, the accused would be entitled to all the procedural safeguards, which already exist in the Cr.P.C. – Thus, there is no vagueness and confusion inasmuch as, there exists a procedure which is just, reasonable and fair to deal with the implementation of Section 376-E. – Court, in these petitions, do not think it necessary to deal with the same, as the challenge before us is the constitutional validity of Section 376-E, on the grounds which have been discussed in detail hereinabove. – Although, we have upheld the constitutional validity of Section 376-E of the IPC, it is always open for the petitioners to challenge its application to the facts of their case, in their Appeals, which are pending before the Division Bench. – Similarly, the submission with respect to application of Section 219 of Cr.P.C. is concerned i.e. whether, if two offences of rape occur in a year, they can be tried together and that in such a situation, there would be no previous conviction and as such, the question of applying Section 376-E would not arise, is again a matter which can be raised before the Court hearing the petitioners appeals. – With regard to the constitutional validity of Section 376-E, we do not find any merit in the said challenge and accordingly dismiss the Petitions. – Petitions Dismissed
REVATI MOHITE DERE, J.
1. The constitutional validity of Section 376-E inserted in the Indian Penal Code ('IPC') by the Criminal Law (Amendment) Act of 2013, with effect from 3rd February 2013, is under challenge before us, in these petitions. The said Section reads thus :
"376-E. Punishment for repeat offenders:-
"Whoever has been previously convicted of an offence punishable under section 376 or section 376-A or section 376-AB or section 376-D or section 376-DA or section 376-DB, and is subsequently convicted of an offence punishable under any of the said sections shall be punished with imprisonment for life which shall mean imprisonment for the remainder of that person's natural life, or with death".
2. These petitions arise in somewhat peculiar circumstances. The petitioners were tried for the offence punishable under Section 376 of the IPC and other offences, in two cases i.e. in Sessions Case Nos. 914 of 2013 and 846 of 2013. Both the cases were tried simultaneously and on 20th March 2014, the order of conviction was pronounced in both these trials. The Sessions Court adjourned the cases to 21st March 2014 for hearing the petitioners on the point of sentence. On the said day, the learned Judge pronounced the sentence and awarded life sentence to the accused in Sessions Case No. 914 of 2013. Thereafter, Sessions Case No. 846 of 2013 was taken up, when the learned Special Public Prosecutor presented an application before the learned Sessions Judge under Section 211(7) of the Code of Criminal Procedure ('Cr.P.C') and prayed for framing of charge under Section 376-E as against the petitioners - Vijay Jadhav, Mohd. Kasim Mohd Hasim Shaikh and Mohd. Salim Mohd. Kudus Ansari. On 24th March 2014, the learned Sessions Judge allowed the said application. The petitioners sought stay of the operation of the order for a period of two weeks to enable them to approach the High Court, however, the same was refused. Pursuant thereto, the petitioners pleaded not guilty to the charge framed against them, under Section 376-E of the IPC. The petitioners - Mohd. Salim Mohd. Kudus Ansari and Mohd. Kasim Mohd Hasim Shaikh, filed two writ petitions, being Writ Petition Nos.1181 of 2014 and 1182 of 2014 respectively before this Court, challenging the constitutional validity of Section 376-E of IPC and for striking down the same and also for quashing of the order dated 24th March 2014 passed by the learned Judge, framing charge under Section 376-E of the IPC and for stay of the proceedings. This Court, after hearing the parties at length, vide order dated 27th March 2014, issued notice to the Attorney General. Since the trial was at the fag end, the trial was not stayed, but all questions/issues were kept open. Thereafter, the trial proceeded and the petitioners were awarded death sentence under Section 376-E of IPC in Sessions Case No.846 of 2013. In 2018, petitioner - Vijay Jadhav also filed a petition, being Criminal Writ Petition No. 527 of 2018, challenging the constitutional validity of Section 376-E of the IPC and prayed that Section 376-E be declared as unconstitutional and for striking down the same. Accordingly, all the aforesaid three petitions have been tagged together for consideration. We may note, that as the petitioners' confirmation appeals are being looked into by the Coordinate Bench, we are not concerned with the actual facts involved in the said confirmation cases, and as such have narrated only the events that led to the filing of these petitions.
Submissions of Dr. Yug Chaudhary :
3. Dr. Chaudhary, learned senior counsel for the petitioners submitted that Section 376-E of the IPC is unconstitutional, as it violates Articles 14 and 21 of the Constitution, on the following grounds :- (i) that it creates a new category of punishment, namely imprisonment till the remainder of one's natural life, which is not envisaged as a punishment in the IPC; (ii) that Section 376-E denudes constitutional powers of remission; (iii) that S
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