Orissa High Courts Calls Explanation From Judicial Officer For Sentencing Rape Convict To Less Than Minimum Sentence Prescribed

The Orissa High Court has ordered a senior Judicial Officer in the rank of District Judge to submit explanation as to why he sentenced a person, convicted under Section 376(1) of the IPC for commission of rape, to seven years of rigorous imprisonment when the minimum sentence prescribed under that provision is ten years.

While disapproving the order of sentence passed by the Trial Court Judge, the Single Judge Bench of Justice Sangam Kumar Sahoo observed,

“The Hon’ble Supreme Court has time and again held that Courts cannot impose lesser than the minimum sentence prescribed under a statute, especially when the said provision does not provide any discretion to the Court to hand down a lesser term of imprisonment having regard for some peculiar circumstances of the case at hand.”

The Court was hearing a criminal appeal filed by a person convicted for commission of rape under Section 376(1), IPC and sentenced to undergo rigorous imprisonment for seven years by the Additional Sessions Judge-cum-Special Judge, Jajpur Road.

While the matter was taken up for hearing, the counsel for the appellant pointed that the Trial Court has handed down a sentence which is not legally tenable being less than the minimum sentence prescribed for such offence. The Court then perused Section 376(1) which reads as follows:

“(1) Whoever, except in the cases provided for in subsection (2), commits rape, shall be punished with rigorous imprisonment of either description for a term which shall not be less than ten years, but which may extend to imprisonment for life, and shall also be liable to fine.”

The Court took into consideration the fact that prior to the enactment of the Criminal Law (Amendment) Act, 2018, the said provision prescribed a minimum sentence of seven years and further, it also provided discretion to the Court to impose lesser than even the minimum sentence if some peculiar circumstances of the case warrant so.

However, in the instant case, the Court noted that the occurrence took place in the intervening night of 15.03.2020 and16.03.2020. So, it was clear that the amended provision was needed to be applied by the Trial Court, whereby it could not have sentenced less than ten years of rigorous imprisonment.

“It appears that earlier the punishment prescribed for the offence under section 376(1) of the I.P.C. was shall not be less than seven years but which may extend to imprisonment for life, and shall also be liable to fine”. However, the said provision was substituted by the Criminal Law (Amendment) Act, 2018 (Act 22 of 2018) with effect from 21.04.2018, which provided that the punishment shall not be less than ten years, but which may extend to imprisonment for life and shall also be liable to fine,” the Court added.

To clarify the mandate of law, Justice Sahoo placed reliance upon the following observation made by the Supreme Court recently in State of U.P. v. Sonu Kushwaha:

“When a penal provision uses the phraseology “shall not be less than….”, the Courts cannot do offence to the Section impose a lesser sentence. The Courts are powerless to do that unless there is a specific statutory provision enabling the Court to impose a lesser sentence.”

Accordingly, the Court ordered the Registrar (Judicial) to communicate the order, through e-mail, to the concerned Presiding Officer wherever he is currently posted and called for an explanation to be furnished to the Court in ‘sealed cover’ on or before July 19, 2023.

“Let an explanation be called for from the concerned Presiding Officer as to how he sentenced the appellant to rigorous imprisonment for seven years when the minimum sentence prescribed for the offence is ten years,” Justice Sahoo ordered.

Case Title: Chandrakanta Mohapatra v. State of Odisha

Case No.: CRLA No. 1010 of 2022

Order Dated: July 11, 2023

Counsel for the Appellant: Mr. A.R. Panda, Advocate

Counsel for the State: Mr. P.B. Tripathy, Addl. Standing Counsel

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