Child abuse case: POCSO Act was enacted to provide more stringent punishments says Supreme Court

The Supreme Court of India while hearing the State of UP vs. Sonu Kushwaha addressed a question “Whether the respondent is guilty of an offence of aggravated penetrative sexual assault punishable under Section 6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO).” The matter was heard by a two-judge bench including Justice Rajesh Bindal and Justice Abhay S. Oka. In this case, the respondent-accused was prosecuted for the offences punishable under Section 377 and Section 506 of the IPC (Indian Penal Code) and Section 5 read with Section 6 of the POCSO Act. The respondent was convicted for all three offences by Jhansi who was the Special Judge under the POCSO Act. He was sentenced to undergo rigorous punishment for 10 years & a fine of Rs. 5000, 7 years, and 1 year for the offence punishable under Section 6 of the POCSO Act, Section 377 of the IPC, and Section 506 of the IPC respectively. The respondent in a criminal appeal before the High Court of Judicature of Allahabad. The HC stated that “the respondent 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 substantive sentence for the offence punishable under the POCSO Act was brought down to imprisonment for seven years with a fine of Rs.5,000/­.” The matter was then presented before the Supreme Court.

The bench stated that “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, in 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 top Court further told the respondent to surrender before the learned Special Judge under the POCSO Act, Jhansi within a maximum period of one month. The respondent should be sent to prison by the Special Court for undergoing the remaining sentence. The top Court also stated that if the respondent fails to surrender within one month from July 5, 2023, “the Special Court shall forthwith issue a non-­bailable warrant against the respondent and ensure that the respondent is committed to prison for undergoing the remaining sentence for the offence punishable under Section 6 of the POCSO Act.”

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