Probation Of Offenders Act 1958 Cannot Be Made Applicable To POCSO Cases: Calcutta HC Reiterates
The Calcutta High Court has reiterated that the Probation of Offenders Act 1958 cannot be made applicable to POCSO cases. A Bench of Justice Siddhartha Roy Chowdhury placed reliance on the judgment of the Apex Court in the case of State v. Ratan Lal Arora (2004) 4 SCC 590, wherein it was held -
“that in cases where a specific enactment, enacted after the Probation Act prescribes a minimum sentence of imprisonment, the provisions of Probation Act cannot be invoked if the special Act contains any provision to enforce the same without reference to any other Act containing a provision, in derogation of the special enactment, there is no scope for extending the benefit of the Probation Act to the accused.”
Advocate Kushal Kumar Mukherjee appeared for the Petitioner while Advocate Joydeep Ray appeared for the Respondent before the High Court.
An appeal was filed before the High Court challenging the order of conviction passed by the 2nd Court of Additional Sessions Judge, Special Court, POCSO Act for the offence under Section 354(A) IPC along with Section 8 of POCSO Act.
In this case, it was alleged that while a mother-daughter duo was returning back home from a market, a boy came and pawed the daughter. Thereafter, the girl screamed and managed to catch hold of the boy. After a while, the police came and took the boy into their custody.
Aggrieved with the order of conviction, the Appellant-Accused approached the High Court.
The High Court on perusing the facts and submissions of the parties observed that there is nothing to impeach the credibility of the victim. In this context, the Bench held -
"When a ring of truth is found in what has been stated by the victim girl before the learned Trial Court, non examination of the victim girl by police is of no consequence..."
The Court agreed with the contention of the State that in a case of Section 8 of the POCSO Act examination of doctor is not at all required in the given facts and circumstances.
Furthermore, the Court disagreed with the contention of the Appellant that he was a teen when the offence was committed and with the passage of time he has become a young responsible man who earns bread for his family, therefore, considering his age, nature of offence committed and no criminal antecedents, he may be given the benefit of Probation of Offenders Act, 1958, without subjecting to him to the deleterious effect of jail life.
To this assertion, the Court held, "Under such circumstances, I do not find any reason, to interfere with the order of conviction."
Additionally, it was also observed, "The Protection of Children from Sexual Offences Act, 2012, is meant to protect children from offences of sexual assault and sexual harassment etc. Preamble of the act indicates that sexual exploitation and sexual abuse of children are heinous crimes and need to be effectively addressed."
The Court also placed reliance on Superintendent Central Excise v. Bahubali (1979) 2 SCC 279 wherein it was held that 1958 Act may not apply in cases where a specific law enacted after 1958 prescribes a mandatory minimum sentence.
Thus, the Bench observed, "Probation of offenders Act, 1958, therefore cannot be made applicable in this case in derogation of such special enactment of 2012."
Accordingly, the Court dismissed the appeal and affirmed the order of conviction of the Trial Court and directed that the Appellant shall serve out the sentence of rigorous imprisonment for three years subject to the provision as laid down under Section 428 Cr.P.C.
Cause Title: Prakash Shaw v. State of West Bengal & Anr.
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