POCSO Act Not In Derogation Of Any Other Law, Has Overriding Effect In Case Of Inconsistency: Karnataka High Court

A division bench of Justice H.T.Narendra Prasad and Justice Rajendra Badamikar said,

"Section 42A (POCSO Act) makes it clear that act is not in derogation of any other law and if there is any inconsistency with any other law for the time being in force, the provisions of POCSO Act, shall have overriding effect."

It added, "In the instant case, there is no inconsistency as the offence under Section 376(2)(i) as well as Section 6 of POCSO Act are punishable with minimum imprisonment of ten years. But the judgement discloses that though the Trial Court has considered Section 42 of POCSO Act, it has proceeded to impose sentence of 7 years with fine of Rs.30,000/- with default clause of RI for two years. This is against the statute."

Case Details:

The State had filed an appeal challenging the inadequate sentence of imprisonment imposed against the accused Shankar urf Shankarappa. It was alleged that the victim came to Mundaragi for attending the marriage of their relative and accused persuaded the victim girl to accompany him and around about 1 O'clock, he kidnapped the victim girl in his car and took her to his sister's house situated in Savadi village of Ron Taluk by introducing the victim as his wife.

Further, it is alleged that he kept the victim in the house of his sister and had forcible sexual intercourse over her in spite of her protest and thereafter confined her in a rented house situated in Koppal wherein he repeatedly had sexual intercourse with the victim in spite of her protest. He had also threatened her when she attempted to contact her parents.

The police on the complaint filed, traced the victim and she was secured by the police and then she was subjected to medical examination. Following which the police chargesheeted the accused under Sections 363, 342, 343, 376(i) and 506 of Indian Penal Code, 1860 and Sections 4 and 5(L) of the Protection of Children from Sexual Offences Act, 2012.

During the trial the prosecution examined 29 witnesses to bring home the guilt of the accused. The trial court by its judgement dated March 26, 2018, sentenced the accused to suffer 7 years rigorous imprisonment for offences under section 376 (i) and sections of POCSO Act.

Prosecution arguments:

It was submitted that imposition of a lesser/inadequate sentence for the offence under Section 376(i) of IPC and Sections 4 and 5(L) of POCSO Act is contrary to law, facts and evidence on record. He would also contend that under Section 42 of the of POCSO Act, if the offender is found guilty of the offence under such other law, he is liable for punishment under the provisions of POCSO Act as well as under other law, then he shall be punished for the offence which is greater in degree."

Further, it was said that Section 5(L) of POCSO Act which is punishable under Section 6 of POCSO Act for aggravated penetrative sexual assault the minimum sentence shall not be less than ten years along with fine and it may extend to life. Moreover, the Special Judge has convicted the accused for the offence punishable under Section 5(L) of POCSO Act, he has not imposed the minimum sentence prescribed under the statute but imposed only 7 years of imprisonment which is against the statutory mandate."

Submission on behalf of Convict:

It was submitted that the accused was granted remission by the State and he was compelled to withdraw the appeal filed by him and now the present appeal is not maintainable as the State being a parental party, cannot take dual stand for remission and for enhancement of the sentence. She would also contend that the State cannot be permitted to blow hot and cold simultaneously. She would invite the attention of the Court towards the Doctrine of legitimate expectation by the public authority which is responsible in this regard.

Court findings:

Referring to relevant provisions of POCSO Act the court said, "It is not under the serious dispute that the victim was minor and she suffered penetrative sexual assault by the accused regularly for nearly two months. The said offence is punishable under Section 6 of POCSO Act. Section 6 of POCSO Act is amended with effect to 16.08.2019 wherein the minimum sentence is 20 years but in the instant case the offence is committed on 21.05.2014 and for two months thereafter."

It added, "Even prior to amendment, the minimum sentence prescribed for the offence under Section 5(L) is imprisonment which shall not be less than ten years with fine."

Further it said, "Section 376(2) (i) of IPC is pertaining to rape of a woman when she is under sixteen years of age. Even under Section 376(2)(i) of IPC, the minimum sentence imposed is 10 years."

Following which it held, "The sentence so far as it relates to Section 376(i) of IPC and Sections 4 and 5 (L) read with Section 6 of POCSO Act is enhanced and accused is sentenced to undergo rigorous imprisonment for a period of ten years along with fine as imposed by the Trial Court."

Court rejects argument of the convict that appeal filed by the state is not maintainable.

It was argued that by the act of the State, the accused was compelled to withdraw his appeal to challenge the judgement of the trial court in order to get remission and hence, the appeal is not maintainable as the State being a parental party cannot by way of compulsion blow hot and cold simultaneously.

The bench said, "The remission was granted to the accused under Karnataka Prisons Rules and it is an ordinary remission in respect of good behaviour incentive and other conditions incorporated in Rule 36. The remission was not granted by the State by passing any special law or treating it as a special case but the remission was statutory remission under the provisions of Karnataka Prisons Rules, 1974."

It was also argued that the State has compelled the accused to withdraw the appeal in order to get remission. To which the bench said, "In these Rules, there is no provision to show that remission cannot be granted in case of any pendency of the appeal. Further, the remission is under statute and pendency of appeal has no relevancy and in any event the accused is going to get the benefit of remission if he is entitled under law."

Accordingly it held, "It is to be noted here that remission is granted under the statute. The enhancement of sentence is also sought only under the statute wherein minimum sentence is prescribed. Hence, there is no inconsistency with each other. The arguments advanced by the learned counsel regarding doctrine of legitimate expectation cannot be made applicable to the facts and circumstances of the case in hand."

The convict also referred to Section 377 of Cr.P.C. and contended that when the State has filed an appeal for enhancement of sentence, the accused is at liberty to plead for his acquittal or for reduction of sentence.

To which the bench said, "At the first instance, the question of seeking reduction of sentence in this case does not arise at all as the Trial Court erred in not imposing minimum statutory sentence prescribed under the law. The second aspect regarding the accused arguing for acquittal also does not arise, since the appeal filed by him was withdrawn and now after having withdrawn the appeal, he cannot argue for acquittal."

Case Title: THE STATE OF KARNATAKA v. SHANKAR URF SHANKRAPPA S/O RAMPPA HUBBALLI

Case No: CRL.A. NO.100242/2018

Citation: 2022 LiveLaw (Kar) 143

Date of Order: 22ND DAY OF APRIL 2022

Appearance: Advocate V.M. BANAKAR for appellant; Advocate ANURADHA DESHPANDE for respondent

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