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Courts have no power to reduce minimum sentence prescribed in POCSO Act

  • Published
    20th Jan, 2023
Context

The Karnataka High Court has enhanced the sentence of five years imposed by the special court on an accused convicted under the Protection of Children From Sexual Offences (POCSO), Act, observing that when the Special Judge did not have any power whatsoever to reduce the minimum sentence to five years.

About the Case:

  • A single-judge bench of Justice V. Srishananda upheld the conviction handed down to Shaikh Rouf under Section 4 of the Act and Section 376 of the Indian Penal Code and enhanced the sentence of the trial court.

Section (4) says that “Any person who contravenes the provisions of sub-section (1) or sub-section (2) shall be liable to be punished with imprisonment of either description for a period which shall not be less than six months but which may extend to one year or with fine or with both”.

  • However, the statute has prescribed a minimum sentence of seven years for the offence punishable under the POCSO Act.

What was the High Court’s say on it?

  • The approach of the trial Court in sentencing the respondent/accused for a period of five years for the offence under Section 4 of the POCSO Act is illegal as the minimum sentence that is prescribed under the provisions of Section 4 of the POCSO Act is seven years and there is no discretion vested in the learned Special judge to reduce the minimum sentence of seven years to five years.

Protection of Children from Sexual Offences (POCSO) Act 2012:

  • Definition: “Children” according to the Act are individuals aged below 18 years. The Act is gender-neutral.
  • Types: Different forms of sexual abuse including but not limited to sexual harassment, pornography, penetrative & non-penetrative assault are defined in the Act.
  • Child-friendly process: The investigation process should be child-friendly and the case should be disposed of within one year from the date of reporting.
  • Special Court: The Act provides for the establishment of Special Courts for the trial of such offences and matters related to them.
  • Implementing Agency: The National Commission for the Protection of Child Rights (NCPCR) and State Commissions for the Protection of Child Rights (SCPCRs) monitor the Act’s implementation.
  • Both are statutory bodies.

Recent amendments under the Act:

  • The Protection of Children from Sexual Offences, or POCSO, (Amendment) Bill, 2019, seeks to provide for stringent punishment to those engaging in sexual crimes against children, death penalty in cases of aggravated sexual assault, besides levying fines and imprisonment, to curb child pornography.
  • The POCSO Bill proposes to protect the interest of vulnerable children in times of distress and ensure their safety and dignity.
  • The Bill has been approved by Parliament — the Rajya Sabha on July 29, 2019, and the Lok Sabha passed it on August 1, 2019.

Challenges:

  • A large part of the investigation of offences under the Act is still guided by the Code of Criminal Procedure (CrPC). 
  • The investigation of penetrative sexual assault cases generally involves recording the statement of the prosecutrix, a medical and forensic science laboratory (FSL) examination, and a determination of the child’s age.
  • The POCSO Act provides for recording the statement of the affected child by a woman sub-inspector at the child’s residence or place of choice.
  • But it is practically impossible to comply with this provision when the number of women in the police force is just 10%, and many police stations hardly have women staff.
  • Similarly, despite funds being provided by the Centre to strengthen Mahila desks, many police stations still do not have even a single woman staff.

Government Interventions:

  • In 2015, the Ministry of Home Affairs (MHA) introduced a scheme to create an Investigation Unit on Crime against Women (IUCAW) which was to be made up of 15 police officers (with at least one-third comprising women officers and headed by an additional superintendent of police) in each district.
  • Its aim was to ensure quality investigation of crimes against women on a 50:50 expenditure-sharing basis; the response by States to the scheme has been half-hearted.
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