Probation Of Offenders Act Cannot Be Applied To POCSO Convicts: Karnataka HC

The Karnataka High Court observed that when an accused is convicted under the provisions of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act), Probation of Offenders Act, 1958 cannot be applied.

The Court observed thus in a criminal appeal filed by the State against the judgment of the Additional Sessions and Special Judge acquitting the accused for the offences punishable under Section 354(A) of the Indian Penal Code (IPC), Section 8 of POCSO Act, and Section 3(2)(v) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (SC/ST Act).

A Division Bench of Justice Sreenivas Harish Kumar and Justice Vijaykumar A. Patil held, “It is pertinent to refer to the judgment of the learned Single Judge of the High Court of Calcutta in the case of PRAKASH SHA where it is clearly held that the provisions of the Probation of Offenders Act cannot be applied whenever an accused is convicted under the provisions of the POCSO Act. … Sri.M.H.Prakash, learned counsel for the accused brings to our notice a judgment of the co-ordinate Bench in the case of 'STATE OF KARNATAKA Vs. KIRAN MAILAREPPA DANDENNAVAR' (Crl.A. No. 100442/2019) where the accused was released under Section 4 of the Probation of Offenders Act. This judgment does not refer to the judgments of the Hon'ble Supreme Court which we have referred above.”

The counsel for the accused prayed for releasing him by extending the benefit under the provisions of Probation of Offenders Act.

HCGP K.P. Yashodha appeared for the appellant while Advocate M.H. Prakash appeared for the respondents.

Facts of the Case -

When the victim girl was returning from the house, the accused was alleged to have caught hold of her on the way, kissed her, and attempted to commit rape on her. She escaped from the clasp of the accused and returned home. Her father was informed of the incident and immediately, he went to the house of the accused and slapped him and thereafter, a report was given to the police who held investigation and filed chargesheet against him.

The Trial Court acquitted the accused of the offences finding material contradictions in the evidence. It took note of the fact that the day on which the incident happened, all the workers were very much present in their respective houses as it was Sunday and at least any one of them should have heard the shout of the victim and have rushed to help her. Aggrieved by this, the State was before the High Court.

The High Court in view of the facts and circumstances of the case noted, “Another judgment of the co-ordinate Bench, one of us being a member in the case of 'STATE OF KARNATAKA Vs. SHAFFI AHAMED AND ANOTHER' (Crl.A.No.718/2017), extended benefit under Section 4 of the Probation of Offenders Act to the accused. At that time, the judgments of the Hon'ble Supreme Court to which we have made reference above were not brought to our notice and therefore, we now hold that neither KIRAN MAILAREPPA DANDENNAVAR nor SHAFI AHMED is applicable.”

The Court said that the POCSO Act is a special enactment which is subsequent to coming into force of the Probation of Offenders Act and hence, the accused is liable to be punished according to Section 8 of POCSO Act which prescribes a minimum sentence of 3 years imprisonment in addition to fine.

“Therefore, the minimum punishment has to be imposed. The provisions of the Probation of Offenders Act do not have application. … Taking into account the background of the accused, it is enough if minimum sentence is imposed”, it added.

Accordingly, the High Court sentenced the accused to rigorous imprisonment of 3 years and fine of Rs. 10,000/-.

Cause Title- State of Karnataka v. Prathap & Anr. (Neutral Citation: 2024:KHC:2919-DB)

Appearance:

Appellant: HCGP K.P. Yashodha

Respondents: Advocates M.H. Prakash, C. Sadashiva, and G.S. Bhat.

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