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POCSO Act has an overriding Effect in Case Of Inconsistency and is not in Derogation of Any Other Law: In Karnataka High Court

The Karnataka High Court recently increased the sentence of imprisonment from seven to ten years imposed on an accused convicted of raping a minor girl and charged under sections of the Protection of Children From Sexual Offences (POCSO) Act.

In the case of State of Karnataka vs Shankar Urf Shankarappa (CRL.A.NO.100242 OF 2018), a division bench of Honourable Justice H.T. Narendra Prasad and Justice Rajendra Badamikar stated that “section 42A (POSCO Act) makes it clear that act is not in derogation of any other law and if there is any inconsistency with any other law for the time being in force, the provisions of POCSO Act.

It went on to say, “In the instant case, there is no inconsistency because the offence under Section 376(2)(i) as well as Section 6 of the POCSO Act is punishable by a minimum of ten years imprisonment.” However, the judgment reveals that, despite considering Section 42 of the POCSO Act, the Trial Court proceeded to impose a sentence of 7 years with a fine of Rs. 30,000/- and a default clause of RI for two years. This is against the law.”

The facts of the case are, the victim came to Mundaragi for attending the marriage of their relative and accused persuaded the victim girl to accompany him and around about 1’o clock, he kidnapped the victim girl in his car and took her to his sister’s house situated in Savadi Village of Ron Taluk, introducing the victim as his wife.

Furthermore, he kept the victim in his sister’s house and had forcibly sexual intercourse with her despite her protests, and that he then confined her in a rental house in Koppa where he repeatedly had sexual intercourse with the victim despite her protests. When she tried to contact her parents, he threatened her.

The police tracked down the victim after receiving a complaint, and she was arrested and subjected to a medical examination. The police then filed a charge sheet against the accused under sections 363, 342, 343, 376(i), and 506 of the IPC, as well as sections 4 and 5 (L) of the POCSO Act, 2012.

The state filed an appeal challenging the insufficient prison sentence imposed on the accused Shankar urf Shakarappa.

During the trial, the prosecution called 29 witnesses in order to prove the accused’s guilt. The trial court sentenced the accused to 7 years rigorous imprisonment on March 26, 2018, for offenses under Section 376 I and sections of the POCSO act.

It was argued that imposing a lesser/inadequate sentence for the offence under Section 376(i) of the IPC and Sections 4 and 5(L) of the POCSO Act is against the law, facts, and evidence on record. He would also argue that under Section 42 of the POCSO Act, “if the offender is found guilty of the offence under such other law, he is liable for punishment under both the provisions of the POCSO Act and the other law, then he shall be punished for the offence which is greater in degree.”

Furthermore, it was stated that Section 5(L) of the POCSO Act, which is punishable under Section 6 of the POCSO Act for aggravated penetrative sexual assault, the minimum sentence shall not be less than ten years in addition to a fine, and it may extend to life. Furthermore, the Special Judge convicted the accused of the offence punishable under Section 5(L) of the POCSO Act, but did not impose the minimum sentence prescribed by the statute, instead imposing only 7 years in prison, which is contrary to the statutory mandate.”

Convict argued that because the accused was granted remission by the State, he was forced to withdraw his appeal, and that the current appeal is no longer maintainable because the State, as a parental party, cannot take a dual stand for remission and enhancement of the sentence. She would also argue that the State cannot be allowed to be both hot and cold at the same time. She would direct the Court’s attention to the doctrine of legitimate expectation by the public authority responsible in this regard.

The court stated, referring to relevant provisions of the POCSO Act, “The victim was a minor, and she was subjected to penetrative sexual assault by the accused on a regular basis for nearly two months. The aforementioned offense is punishable under Section 6 of the POCSO Act. Section 6 of the POCSO Act has been amended with effect from 16.08.2019, and the minimum sentence is now 20 years, but in this case, the offence was committed on 21.05.2014 and continued for two months.”

“Even prior to amendment, the minimum sentence prescribed for the offence under Section 5(L) is imprisonment for a term not less than ten years, with a fine,” it added. It went on to say, “Section 376(2) I of the IPC prohibits raping a woman under the age of sixteen. Even under IPC Section 376(2)(i), the minimum sentence is ten years.”

Following that, it held that “the sentence in relation to Section 376(i) of the IPC and Sections 4 and 5 (L) read with Section 6 of the POCSO Act is enhanced, and the accused is sentenced to undergo rigorous imprisonment for a period of ten years, together with fine as imposed by the Trial Court.”

According to the bench, “There is no provision in these Rules indicating that remission cannot be granted while the appeal is pending. Furthermore, the remission is mandated by statute, and the status of the appeal is irrelevant; in any case, the accused will receive the benefit of remission if he is eligible under the law.”

As a result, the court ruled, “It should be noted that the statute allows for remission. The enhancement of sentence is also sought only under the statute that specifies the minimum sentence. As a result, there is no inconsistency between them. The learned counsel’s arguments regarding the doctrine of legitimate expectation cannot be applied to the facts and circumstances of the case at hand.”

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