IN Cri.A. 1633 OF 2023 -SC- POCSO Act provides for no discretion to the Court to impose the minimum sentence and when a penal provision uses the phraseology 'shall not be less than…’, the Courts cannot do offence to the Section and impose a lesser sentence: Supreme Court while ruling that Penetrative Sexual Assault against child below 12 years was punishable as Aggravated Sexual Assault
Justice Abhay S. Oka and Justice Rajesh Bindal [05-07-2023]

Read More: State of U.P v. Sonu Kushwaha

Simran Singh

New Delhi, July 6, 2023: The Supreme Court has allowed an appeal against a judgement of the Allahabad High Court which had held that the respondent-accused was not guilty for the offence of ‘aggravated penetrative sexual assault’ punishable under Section 6 of the Protection of Children from Sexual Offences Act, 2012(POCSO) Act, thereby reducing the substantive sentence for the offence punishable under the POCSO Act to imprisonment for 7 years with a fine of Rs.5,000/ under section 4 of the said Act. The Bench was of the view that the Court could not impose sentence lesser than the minimum punishments prescribed in POCSO Act.

The Division Bench comprising of Justice Abhay S. Oka and Justice Rajesh Bindal stated that the POCSO Act was enacted to provide for more stringent punishments for the offences of child sexual abuse of various kinds.

In the matter at hand, the Trial Court had sentenced the accused to rigorous imprisonment (RI) for 10 years for the offence punishable under Section 6 of the POCSO Act and was directed to pay a fine of Rs.5,000/­and had also imposed RI for 7 years for the offence punishable under Section 377 of Indian Penal Code, 1860(IPC) and for the offence punishable under Section 506 of IPC, he was sentenced to undergo RI for 1 year. The Allahabad High Court, while partly allowing the appeal preferred by the respondent-accused, held that he was guilty of the offence of ‘penetrative sexual assault’ punishable under Section 4 of the POCSO Act and not the offence of ‘aggravated penetrative sexual assault’ punishable under Section 6 of the POCSO Act. The minimum punishment under section 6 of POCSO Act is ten years rigorous imprisonment along with a fine. Therefore, his sentence for the offence punishable under the POCSO Act was brought down to imprisonment for seven years with a fine of Rs.5,000/­.

The Bench noted that the High Court had found that the respondent-accused had put his penis into mouth of the minor, aged 10 years and had discharged semen. Given this finding, the Court was of the view that the respondent-accused had committed an offence of aggravated penetrative sexual assault as he had committed penetrative sexual assault on a child below 12 years.

"Surprisingly, the High Court has observed that Section 5 was not applicable, and the offence committed by the respondent falls under the category of a lesser offence of penetrative sexual assault, which is punishable under Section 4 of the POCSO Act. Thus, the High Court committed an obvious error by holding that the act committed by the respondent was not an aggravated penetrative sexual assault. In fact, the Special Court was right in punishing the respondent under Section 6 and sentencing him to undergo rigorous imprisonment for ten years with a fine of Rs.5,000/­.”,

The Court, while dealing with the sentence imposed, observed that “The POCSO Act was enacted to provide more stringent punishments for the offences of child abuse of various kinds and that is why minimum punishments have been prescribed in Sections 4, 6, 8 and 10 of the POCSO Act for various categories of sexual assaults on children. Hence, Section 6, on its plain language, leaves no discretion to the Court and there is no option but to impose the minimum sentence as done by the Trial Court.When a penal provision uses the phraseology “shall not be less than….”, the Courts cannot do offence to the Section and 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. However, we find no such provision in the POCSO Act. Therefore, notwithstanding the fact that the respondent may have moved ahead in life after undergoing the sentence as modified by the High Court, there is no question of showing any leniency to him. Apart from the fact that the law provides for a minimum sentence, the crime committed by the respondent is very gruesome which calls for very stringent punishment. The impact of the obnoxious act on the mind of the victim child will be lifelong. The impact is bound to adversely affect the healthy growth of the victim. There is no dispute that the age of the victim was less than twelve years at the time of the incident. Therefore, we have no option but to set aside the impugned judgment of the High Court and restore the judgment of the Trial Court.”