[POCSO Act] When Law Prescribes Minimum Punishment, Courts Have No Discretion To Award Lesser Sentence: Bombay High Court

The Bombay High Court has held that an increase in the length of sentence as a consequence of awarding the statutory minimum sentence cannot be termed as “enhancement of sentence” within the meaning of Section 386 of the Code of Criminal Procedure. The Court observed that where the legislature has prescribed a mandatory minimum punishment, imposition of such minimum by the Appellate Court is a corrective exercise to bring the sentence in conformity with law and not an act of discretionary enhancement.

Justice Rajnish R. Vyas was hearing two connected appeals arising from the judgment delivered by the Special Judge (POCSO), where the accused had been convicted for offences punishable under Section 376(2)(n) of the IPC and Section 5(l) punishable under Section 6 of the Protection of Children from Sexual Offences Act, 2012, and was sentenced to seven years' rigorous imprisonment. He was acquitted of offences under Sections 363 and 366-A IPC. The accused preferred an appeal challenging his conviction, while the victim filed an appeal under Section 372 CrPC seeking imposition of the statutory minimum sentence and also challenging the acquittal under Sections 363 and 366-A IPC.

On appreciation of evidence, the Court held that the prosecution had proved that the victim was a “child” within the meaning of the POCSO Act. The Court observed that even if consent was assumed, the same would be immaterial in law since the victim was a minor.

The Court drew a distinction between “enhancement of sentence” and “imposition of minimum statutory punishment.” It observed that enhancement ordinarily refers to increasing a sentence within a discretionary range, such as from minimum to maximum. In contrast, where the statute fixes a mandatory sentence below which the sentence cannot go, the Court has no discretion to award a lesser punishment. Imposing the statutory minimum in such circumstances is not an act of enhancement but a correction of an illegality committed by awarding a sentence not authorised by law.

“The increase in the length of the sentence may be a consequence of awarding the statutory minimum sentence, but it cannot be called an enhancement of the sentence. Thus, exercising powers under section 386 of the Code of Criminal Procedure, in the facts and circumstances of the case, would in fact be in the interest of justice,” the Court observed.

Referring to Sections 28 and 354 CrPC, the Court emphasised that courts may pass only such sentences as are “authorised by law.” The Court further referred to Section 42 of the POCSO Act, which mandates that where an act constitutes an offence under both the IPC and the POCSO Act, the offender shall be liable to the punishment which is greater in degree. Hence, the Court concluded that the increase in the term of imprisonment cannot be characterised as an enhancement in the true sense contemplated by Section 386 CrPC.

Accordingly, the accused's appeal against conviction was dismissed. Exercising powers under Section 386 CrPC, the Court imposed the statutory minimum sentence of twenty years' rigorous imprisonment under Section 6 of the POCSO Act and ten years under Section 376(2)(n) IPC.

Case Title: Santosh Maroti Bhandare v. State of Maharashtra & Anr. [Criminal Appeal No. 567 of 2024 with Criminal Appeal No. 740 of 2024]

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