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Synopsis: Recently Bombay High Court has acquitted a man of sexual charges under POCSO act. The existence of Mandatory Minimum Sentence in the POCSO act is leading to these decisions.
Introduction:
A petition was filed in the Bombay High Court against the decision of the sessions court. The Session Court had convicted a person for the offense of sexual assault under Section 8 of the POCSO Act. The court sentenced him to imprisonment for three years. The person was accused of groping and trying to remove the clothes of a 12-year-old girl.
Bombay High Court in its decision acquitted the person of sexual charges under POCSO act and convicted him for a lesser offense under the Indian Penal Code (IPC). For its decision, HC provided the following justifications:
- Firstly, the groping by the convict was not a direct contact i.e. skin to skin.
- Second, there are no specific details regarding the removal of clothes of the victim.
- Third, the offences under POCSO Act provide for stricter punishment. Thus, punishment requires allegations of a more serious nature and a higher standard of proof.
Before that in a similar case, State v Bijender (2014), Delhi Court acquitted the accused under section 7 of POCSO Act. Instead, it convicted the accused of an offense under the IPC act.
These judgments have a commong reason behind them i.e. the existence of mandatory minimum sentence in POCSO act.
What is the mandatory minimum sentence?
Section 8 prescribes the punishment for the offense of sexual assault defined in Section 7 of the Act. It provides for the mandatory minimum sentence of 3 years and a maximum of 5 years.
Where a law provides for mandatory minimum punishment, Courts cannot prescribe the punishment lower than that. It does not give any discretion to the court to pass any lighter sentence. Only the statute will determine the sentence.
The sentence is prescribed to act as a deterrent to crime. There are many other laws such as IPC Section 124A, where mandatory minimum punishments have been prescribed.
Case law: J&K v/s Vinay Nanda
It was held that if a person is found to be guilty under the POCSO Act, the court has to pass only such a sentence which is reasonable, but it cannot be less than the minimum prescribed by the law.
What are the criticisms of mandatory sentencing?
- Firstly, It results in more acquittals, as when judges think that punishment for the offence is high, they prefer to acquit the accused. It has been reported by the Centre for Child Law at the NLSIU, Bengaluru.
- Secondly, the discretion of punishment is not removed but shifted from the judges to the police.
Way Forward
Legal experts are of the opinion that mandatory sentences are ineffective to give a deterrent effect or reducing crime in society. Therefore, judicial reforms such as making the sentencing process more accountable, transparent and recording specific reasons should be implemented instead of stricter punishment.
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