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What was the Allahabad HC ruling?
- A Single Judge Bench of the Allahabad High Court recently reduced the sentence of a convict who had assaulted a 10 year old boy.
- A Sessions Court had earlier convicted him of “aggravated penetrative sexual assault” under Section 6 of the Protection of Children from Sexual Offences Act (POCSO). The court had sentenced him to 10 years rigorous imprisonment and imposed a fine of ₹5,000.
- Note that the minimum sentence under the Section 6 of the Act is 10 years imprisonment, which may be extended to life imprisonment.
- The High Court reduced the convict’s sentence to 7 years imprisonment while retaining the fine.
Highlights of the Ruling:
- Oral sex with a minor is only a “lesser” offence under POCSO- not sexual assault or aggravated sexual assault as ruled earlier.
- Such an offence is to be tried under Section 4 as it falls into the ‘penetrative sexual assault’ category under the Act.
Why is this erroneous?
POCSO Act’s intention:
- The POCSO Act was especially enacted to protect children from offences like sexual harassment, sexual assault and child pornography. This was done so while realizing that many of these offences weren’t specifically provided for and inadequately penalized.
- The legislative intent of the Act, as listed in the Statement of Objects and Reasons, is made clear by the neutral definitions and enhanced penalties for the various sexual offences.
- The Section 42 on ‘alternative punishment’ provides for awarding greater punishment.
- The IPC was amended to eliminate the anomalies in amount of punishment for the offences, if there are differences when compared with other laws.
- The language used in the Section 5 has no ambiguity.
- The Supreme Court had dismissed the requirement of skin-to-skin contact in sexual assault cases. It held that the legislature’s intention is to be gathered from the language of the statute and the language used is clear.
- In such absence of ambiguity, the High Court needn’t have deviated to award a reduced sentence. This case doesn’t warrant the ‘rule of lenity’.
No discretionary provisions for the court
- The Allahabad High Court was mandated to stick to the statutory provisions and award the minimum prison term as the POCSO doesn’t provide for any discretion.
- The court had no discretionary powers to reduce the sentence from the minimum 10 years’ term as prescribed by Section 6.
- Earlier, IPC Section 376 (deals with rape) gave the courts discretionary powers to award lesser punishments than the prescribed minimum.
- This could be done after recording ‘adequate and specific reasons’. In 2012, the Supreme Court (in State of Rajasthan v. Vinod Kumar) set aside a HC order that reduced the sentence (less than the minimum prescribed punishment) without recording ‘adequate and specific reasons’.
- In 2013, the Section 376 of IPC was amended to remove this discretion of the courts.
No deliberation on the reasons
- The Allahabad High Court failed to deliberate on the reasons for not considering the offence in this case as being of aggravated nature.
- The Supreme Court had said that the judges are to record the reasons not merely for formality but also for ensuring judicial transparency and accountability.
- Recording the reasons makes the ruling open to further scrutiny.
No test of reasonableness under scrutiny here
- This wasn’t even a case where the provision for 10 years imprisonment as minimum punishment was under challenge as being disproportionate when compared to the offence’s gravity under Article 14 of the Constitution.
- In such a case, the court has made an error of not considering the offence under the relevant sections.
What is the way ahead?
- The Section 5(m) of POCSO adds “penetrative sexual assault on a child below 12 years” to a list of crimes that are considered as an aggravated form of offence. This list also includes crimes involving a group of offenders, crimes done repeatedly, those that involve the use of deadly weapons, those that cause grievous harm or injury and those that lead to incapacitation (physical or mental), disease or pregnancy.
- Monitoring the implementation of POCSO is under the ambit of National Commission for Protection of Child Rights, State Commission for the Protection of Child Rights and the state government. They must challenge the court’s decision in this case.
This court verdict is under criticism for not giving due regard to the facts of the case and the law itself. It is a fit case for review.