The Bombay High Court has expressed strong criticism regarding a special judge’s decision to impose only a 3-year prison sentence on a man convicted of attempting to rape a child, despite the Protection of Children from Sexual Offences Act (POCSO Act) calling for a more severe penalty.
This case prompted Justice Bharati Dangre to take note of the significant errors often made by judges and special prosecutors appointed under the POCSO Act, leading to miscarriages of justice.
The single bench emphasized that the state and the Special Public Prosecutor must not remain passive observers to the flawed implementation of legislation designed to protect children from serious sexual assault offenses, which are considered heinous.
The court directed the principal secretary of the State’s law and judiciary department to submit an affidavit outlining the steps to be taken if prosecutors fail to notice gross errors in applying the POCSO Act. The affidavit should also specify the state department’s intentions upon discovering such glaring errors, with a two-week deadline for submission.
Furthermore, it directed the principal secretary to propose a mechanism for raising awareness about the POCSO Act, given that even the investigating agency failed to invoke the correct provisions in the present case. In this particular case, a 64-year-old man was convicted of attempting to rape a 10-year-old child.
The trial court had imposed a 3-year prison sentence by invoking Section 18 of the POCSO Act, which deals with attempts to commit an offense and is combined with Sections 4 and 6, addressing sexual assault and penetrative sexual assault, respectively. Section 18 allows for a punishment that can be half of the imprisonment for life or one-half of the longest sentence prescribed for the main offense.
The Court asked why the trial court judge imposed only a 3-year sentence when the minimum punishments for the main offenses under Sections 4 and 6 were 7 years and 10 years, respectively, and life imprisonment at most. The High Court pointed out that it is not permissible for a court to impose a penalty lower than the prescribed minimum and that discretion is only allowed between the lesser and maximum penalties.
The Court raised concerns about the accountability of prosecutors and judges who fail to identify such errors when implementing the POCSO Act and indicated its intention to issue appropriate directives to enhance accountability among POCSO judges once the State government submits the requested affidavit on this matter.
