[POCSO Act] Special Court Cannot Impose Sentence Lower Than Minimum Punishment Prescribed: Karnataka High Court

The Karnataka High Court has enhanced the sentence of five years imposed by the special court on an accused convicted under the Protection of Children From Sexual Offences (POCSO), Act, observing that when the statute has prescribed a minimum sentence of seven years for the offence punishable, the Special Judge did not have any power whatsoever to reduce minimum sentence to five years. A single judge bench of Justice V. Srishananda, sitting at Kalaburagi bench, upheld the conviction handed down to Shaikh Rouf under Section 4 of the Act and Section 376 of the Indian Penal Code and enhanced the sentence of the trial court. The bench said “Awarding sentence of five years to the respondent/accused by the learned trial judge ignoring the fact that statute has prescribed the minimum sentence of seven years for the offence punishable under Section 4 of POCSO Act, is clearly illegal and calls for interference by this Court.” The prosecution had approached the court challenging the order of the special court dated 07-09-2015, by which the court convicted the accused for sexually assaulting a 12-year-old girl. However, sentenced him to undergo simple imprisonment of five years on both counts. The state government in its appeal contended that when the Trial Court had found that the prosecution proved the case by examining all material important witnesses, it was not correct in reducing the quantum of sentence and fine amount against the respondent/accused. It was said “The approach of the trial Court in sentencing the respondent/accused for a period of five years for the offence under Section 4 of the POCSO Act is illegal as minimum sentence that is prescribed under the provisions of Section 4 of the POCSO Act is seven years and there is no discretion vested in the learned Special judge to reduce the minimum sentence of seven years to five years.” Further, it was submitted that since the respondent/accused by committing heinous offence had ruined the future life of a 12 years old minor girl and her well reputed status in the society is defamed and caused social concern to society at large. The sentence and fine amount ordered by the Trial Court is very much inadequate and the same is not in accordance with IPC and the POCSO Act. The bench noted that the order of conviction passed by the trial Court insofar as convicting the accused under Section 376 of IPC and under Section 4 of the POCSO Act is not challenged by the accused. Thus as such, the conviction order has become final. Even he has chosen not to file a cross appeal after the present appeal. Thus it said “The argument of the learned counsel for the respondent/accused that the learned Special Judge ought not to have convicted the accused for the offence punishable under Section 376 of IPC, when once accused was convicted for the offence punishable under Section 4 of the POCSO Act. Said argument loses its significance in view of the fact that punishment prescribed under Section 376 of IPC and Section 4 of POCSO Act are one and the same.” Referring to Section 4 of the POCSO Act which provides the minimum sentence that is to be imposed after finding the accused guilty under Section 4 of the POCSO Act, is seven years, the bench said “Since the statute has prescribed a minimum sentence of seven years for the offence punishable under Section 4 of the POCSO Act, learned Special Judge did not have any power whatsoever to reduce the minimum sentence to five years. Perhaps, the said aspect of the matter has missed the notice of the learned Special Judge while passing the order of sentence.” It added “When a statute prescribes a minimum sentence, the trial judge or the appellate judge has no discretion whatsoever to reduce the minimum sentence prescribed by the statute.” Accordingly it allowed the appeal and held “The State has made out a case for enhancing the sentence to seven years which is the minimum sentence prescribed by statute under Section 4 of POCSO Act.” Case Title: State of Karnataka And Shaikh Rouf Case No: CRIMINAL APPEAL No.200060/2016 Citation: 2023 LiveLaw (Kar) 18 Date of Order: 03-01-2023 Appearance: HCGP Gururaj V Hasilkar for appellant; Advocate Ishwaraj S Chowdapur for respondent.Click Here To Read/Download Judgment

[POCSO Act] Special Court Cannot Impose Sentence Lower Than Minimum Punishment Prescribed: Karnataka High Court

Mustafa Plumber

This is a premium content
Available exclusively to
Our subscribers

INR 1099+GST

Tags

[POCSO Act] Special Court Cannot Impose Sentence Lower Than Minimum Punishment Prescribed: Karnataka High Court

Mustafa Plumber

This is a premium content Available exclusively to Our subscribers

INR 1099+GST

Tags

This is a premium content
Available exclusively to
Our subscribers