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).
"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.
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).