Bombay High Court Criticises Trial Judge For Awarding Lesser Than Minimum Sentence To POCSO Convict

The Bombay High Court recently criticised a Special Judge under the Protection of Children from Sexual Offences Act (POCSO Act) for awarding 3-year imprisonment to a man convicted for attempting to rape a child, observing that the Act calls for a greater punishment.

Justice Bharati Dangre observed that the prosecution neither brought this to the notice of the trial court, nor is there any recommendation, made for filing of an appeal, on behalf of the state against lesser sentence.

“The State and the Special Public Prosecutor continue to act mute spectators to the flawed implementation of the legislation, which is specifically intended to protect the children from commission of serious offences of sexual assault…”, the court observed.

The court held that it is the responsibility of both the prosecution and the judges handling POCSO cases to be well-versed in the provisions of this special enactment.

“The prosecution and the Judges presiding over the POCSO cases are expected to be conversant with the provisions of the special enactment, enacted to protect the children from the offence of sexual assault, sexual harassment and pornography and since the enactment has made it imperative to provide establishment of Special Courts for trial of such offences, also contemplate appointment of a Special Public Prosecutor, there is abject failure on their part, to notice the above glaring flaw, committed by Court imposing the punishment, as above”, the court held.

The court was dealing with an appeal against conviction filed by a 64-year-old man convicted for attempting to rape a 10-year-old girl in 2018 under section 18 (attempt) read with sections 4 (penetrative sexual assault) and 6 (aggravated penetrative sexual assault) of the POCSO Act.

Due to certain discrepancies between the testimony of the victim and her statement to the police, the Special Judge concluded that while there was substantial evidence for an attempt to commit penetrative sexual assault, there was no conclusive proof of such an assault. The appellant was convicted under Section 511 read with Section 376(1) of the IPC and Section 18 read with Sections 4 and 6 of the POCSO Act.

As per Section 42 of the POCSO Act, the appellant was liable to be punished only under the POCSO Act as it prescribes greater sentence. The Special Judge sentenced him to three years of rigorous imprisonment and fine of Rs. 7000/-. Hence he filed the present appeal against his conviction.

Section 18 of the POCSO Act prescribes punishment for an attempt to commit an offence, for a term extending up to one-half of the maximum term prescribed for the offence in question.

The court noted that before the amendment of POCSO Act in 2019, the minimum punishment for penetrative sexual assault was seven years, and for aggravated penetrative sexual assault, the minimum punishment was ten years. “…one fail to understand what promoted the learned Judge to impose sentence of RI for 3 years on being convicted, under Section 4 and 6 of the Act r/w Section 18”, the court added.

It is not open to a Court to impose a punishment lesser than the minimum that is prescribed, the court said, adding, “If Section 18 contemplate imprisonment for life, as a longest punishment, then in no case, the punishment could have been restricted to 3 years of rigorous imprisonment.”

The court further observed that even the Investigating Agency did not invoke the correct sections of the POCSO Act and when it filed the charge-sheet.

“In dealing with the special statute which is brought into force with this avowed purpose by the Parliament, not only the Judges who are assigned, the trial thereunder, but even the Special Public Prosecutors, who assist the Court, are expected to be cognizant of the provisions of the Enactment and the question that arises is, in such a case of miscarriage of justice, who is to be blamed? I do not intend to leave this question open…”, the court stated.

Thus, the court directed the Principal Secretary, Law and Judiciary Department to file an affidavit explaining steps to be taken when such errors occur. The affidavit should also address how to create awareness about the POCSO Act, especially at the prosecution level. The court also expressed its intention to pass appropriate directions to fix accountability in POCSO cases, ensuring that judges are sensitive when dealing with them.

The court allowed the appellant, who was out on bail, to withdraw his application for suspension of sentence and directed him to surrender himself. The case was listed for compliance on September 15, 2023.

Case no. – Criminal Appeal No. 833 of 2022

Case Title – Rodu Bhaga Wagh v. State of Maharashtra & Anr.

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