No discretion to reduce minimum sentence for aggravated penetrative sexual assault under POCSO Act: Supreme Court

The Supreme Court on Wednesday said that courts do not have the discretion to reduce the minimum sentences imposed for offences, including for aggravated sexual assault, under the Protection of Children from Sexual Offences Act (POCSO Act). [State of Uttar Pradesh v. Sonu Kushwaha].When a penal provision expressly prescribes a minimum sentence, courts cannot do offence to such a Section and impose a lesser sentence, the apex court held..A bench of Justices Abhay S Oka and Rajesh Bindal further emphasised that the POCSO Act was enacted to provide for stringent minimum punishments for various kinds of child sexual abuse. In particular, Section 6 of the POCSO Act, which describes the punishment for aggravated penetrative sexual assault leaves no option for the court but to impose the minimum sentence, the bench added. ."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 Courts are powerless to do that unless there is a specific statutory provision enabling the Court to impose a lesser sentence,” the order stated. .The Court also elaborated on why harsh sentences were warranted in such cases. Referring to the present case, which involved the rape of a child who was less than 12 years old at the time, the Court observed, "The impact of the obnoxious act on the mind of the victim-child will be life-long. The impact is bound to adversely affect the healthy growth of the victim.”.Hence, the Court held that there is no question of showing any leniency to the convict, even if he had "moved ahead in life" after undergoing the modified sentence imposed by the High Court. "Apart from the fact that the law provides for a minimum sentence, the crime committed by the respondent is very gruesome which calls for very stringent punishment," the Court added..The Court, therefore, restored a trial court conviction in the matter, which carried a 10-year jail term for the offence of aggravated penetrative sexual assault.Earlier, the Allahabad High Court had reduced the conviction from aggravated penetrative sexual assault to penetrative sexual assault, which only carried a 7-year sentence. Such a modification was despite the fact that the victim was less than 12 years old. Section 5 (m) of the POCSO Act lays down that penetrative sexual assault on a child who is less than 12 years old would amount to an aggravated version of the crime. The Uttar Pradesh government filed an appeal before the Supreme Court, which has now been allowed by the top court. The Supreme Court opined that the High Court's failure to discern that the offence was an aggravated one was ‘an obvious error’ that was ‘surprising.’.The Court proceeded to direct the convict to surrender within a month, failing which the special POCSO court was ordered to issue a non-bailable warrant against him..Advocates Krishnanand Pandeya and Harsh Pratap Shahi appeared for the State. Advocate Satish Pandey appeared for the respondent..[Read judgment]