POCSO Act | Courts Cannot Impose Less Than Minimum Sentence Prescribed : Supreme Court

The Supreme Court observed that the Courts cannot impose sentence lesser than the minimum punishments prescribed in POCSO Act.

The POCSO Act was enacted to provide more stringent punishments for the offences of child abuse of various kinds, the bench of Justices Abhay S. Oka and Rajesh Bindal observed.

In this case, the Trial Court sentenced the accused to rigorous imprisonment for ten years for the offence punishable under Section 6 of the POCSO Act and was directed to pay a fine of Rs.5,000/­ (also imposed rigorous imprisonment for seven years for the offence punishable under Section 377 of IPC. For the offence punishable under Section 506 of IPC, he was sentenced to undergo rigorous imprisonment for one year.). Partly allowing his appeal, the Allahabad High Court 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. 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/­.

While considering the appeal, the bench noted that the High Court had found that the accused had put his penis into mouth of the victim aged about 10 years and discharged semen. 

The bench said that, given this finding, the accused has committed an offence of aggravated penetrative sexual assault as he has committed penetrative sexual assault on a child below twelve 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 bench observed.

Regarding the sentence imposed, the bench, while allowing the appeal, observed thus:

"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. 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 victim­child 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."

Case details

State of U P vs Sonu Kushwaha | 2023 LiveLaw (SC)  502 | CrA 1633 OF 2023 | 5 July 2023

Headnotes

POCSO Act - 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. (Para 12)

POCSO Act ; Section 6 - Accused had put his penis into mouth of the victim aged about 10 years and discharged semen - The accused has committed an offence of aggravated penetrative sexual assault as he has committed penetrative sexual assault on a child below twelve years. (Para 7-11)

Interpretation of Statutes - Penal Statutes - “Shall not be less than…" - 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. (Para 12)

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