POCSO Convict Not Entitled To Benefit Under Probation Of Offenders Act: Karnataka High Court

The Karnataka High Court has held that the benefit under the provisions of the Probation of Offenders Act, cannot be extended to a person convicted under the provisions of the Protection of Children from Sexual Offences Act (POCSO).

A division bench of Justice Sreenivas Harish Kumar and Justice Vijaykumar A Patil overturned the acquittal order passed by the trial court and sentenced Prathap to suffer three years rigorous imprisonment, under Section 8 of the Act. It observed,

“The Prevention of Children from Sexual Offences Act, 2012 is a special enactment which came into force w.e.f. 20.06.2012. This enactment is subsequent to coming into force of the Probation of Offenders Act. In the case on hand the accused is liable to be punished according to section 8 of POCSO Act which prescribes a minimum sentence of 3 years imprisonment in addition to fine. Therefore, the minimum punishment has to be imposed. The provisions of the Probation of Offenders Act do not have application.”

The accused on being found guilty pleaded that he is 28 years old, earns his livelihood by doing coolie work and has two minor children. He thus sought to be released by extending the benefit under the provisions of Probation of Offenders Act.

In response, the prosecution submitted that since Section 8 of the POCSO Act provides for a minimum sentence of 3 years imprisonment, the benefit under the Probation of Offenders Act cannot be given. Reliance was placed on Supreme Court judgment in Superintendent, Central Excise, Bangalore v. Bahubali (1979). Following which the court noted when minimum sentence is prescribed, PO Act cannot be applied.

It rejected the contention of the accused that in the cases State of Karnataka v. Kiran Mailareppa Dandennavar and State of Karnataka v. Shaffi Ahamed where the accused was released under Section 4 of the Probation of Offenders Act. It said,

“At that time, the judgments of the Hon'ble Supreme Court to which we have made reference above were not brought to our notice and therefore, we now hold that neither KIRAN MAILAREPPA DANDENNAVAR nor SHAFI AHMED is applicable.”

The trial court had acquitted the accused who was charged for offences punishable under Section 354A of IPC, Section 8 of the Act and Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. It was alleged that on 26.10.2014 the accused caught hold of the victim and attempted to commit rape on her.

The bench on assessing the evidence of the witnesses said they "have not at all been discredited. Even we do not find any minor contradictions as has been pointed out by the trial Court.”

Rejecting the contention of the accused of there being personal enmity between the victim and his family over the issue of filling water from a common tap, the court said “It is true that PW-1 (father of victim) has stated about some kind of a quarrel between PW-5 (mother of victim) and Rajeshwari, the aunt of the accused, but in our opinion it is just a common place act of the female folk and no importance can be given to it.”

It added “Just because PW-1 has given admission about this quarrel, it is highly impossible to infer that in the background of this kind of a quarrel, there existed enmity between two families which goes to the extent of a false complaint being lodged against the accused causing harm to her dignity in the society.”

Thus it held a clear inference can be drawn that an offence falling within the ambit of the POCSO Act and Section 354A of IPC has been made out.

However, it upheld the trial court order acquitting the accused for offence under Section 3(2)(v) of SC/ST (POA) Act. It said “Merely for the reason that the victim girl belongs to that caste, police invoked the offence under the atrocities Act without there being any material for that.”

It directed the accused be sentenced to rigorous imprisonment of three years and fine of Rs.10,000.

Appearance: HCGP K.P. Yashodha for Appellant.

Advocate M.H. Prakash FOR R1.

Advocate C. Sadashiva FOR Advocate G.S. Bhat for R2.

Citation No: 2024 LiveLaw (Kar) 79

Case Title: State of Karnataka AND Prathap

Case No: Criminal Appeal No 1335 OF 2017

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