Source: Karnataka High Court

Why in News?

Recently, the Karnataka High Court in the matter of State of Karnataka v. Prathap, has held that a person convicted under the provisions of the Protection of Children from Sexual Offences Act, 2012 (POCSO) cannot avail the benefits under the provisions of the Probation of Offenders Act, 1958.

What was the Background of State of Karnataka v. Prathap Case?

• The prosecution case is that when the victim girl was returning to her home, the accused 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 to her home.
• Thereafter, the victim informed her parents, and a report was given to the police who held an investigation and filed a charge sheet against the accused.
• The accused was charge sheeted for the offences punishable under Section 354A of the Indian Penal Code, 1860 (IPC)and Section 8 of POCSO.
• The Trial Court acquitted the accused of the offences, finding material contradictions in the evidence.
• Thereafter, an appeal has been filed before the High Court of Karnataka, challenging the judgment of the Trial Court.
• The High Court held that the accused is liable to be punished and prescribed a minimum sentence of 3 years imprisonment in addition to fine.

What were the Court’s Observations?

• A bench comprising of Justices Sreenivas Harish Kumar and Vijaykumar A Patil observed that POCSO is a special enactment. This enactment is subsequent to the coming into force of the Probation of Offenders Act, 1958.
  • In the case on hand the accused is liable to be punished according to section 8 of POCSO which prescribes a minimum sentence of 3 years imprisonment in addition to fine.
  • Therefore, the minimum punishment has to be imposed and the provisions of the Probation of Offenders Act, 1958 do not have application.
• It was further held that the provisions of the Probation of Offenders Act, 1958 cannot be applied whenever an accused is convicted under the provisions of the POCSO.

What are the Relevant Legal Provisions?

Section 354A of IPC

• Section 354A of IPC defines and penalizes sexual harassment whereas the same provision has been covered under Section 75 of the Bhartiya Nyaya Sanhita, 2023 (BNS).
  • This Section was introduced by way of Criminal Law (Amendment) Act, 2013, with an object to protect dignity of individuals.
• This Section states that-

(1) A man committing any of the following acts—

(i) Physical contact and advances involving unwelcome and explicit sexual overtures; or
(ii) A demand or request for sexual favors; or

(iii) Showing pornography against the will of a woman; or

(iv) Making sexually colored remarks, shall be guilty of the offence of sexual harassment.

• (2) Any man who commits the offence specified in clause (i) or clause (ii) or clause (iii) of sub-section (1) shall be punished with rigorous imprisonment for a term which may extend to three years, or with fine, or with both.
• (3) Any man who commits the offence specified in clause (iv) of sub-section (1) shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.

Section 8 of POCSO

• Section 8 of this Act deals with the punishment for sexual assault.
• It states that whoever, commits sexual assault, shall be punished with imprisonment of either description for a term which shall not be less than three years, but which may extend to five years, and shall also be liable to fine.

Probation of Offenders Act, 1958

• An Act to provide for the release of offenders on probation or after due admonition and for matters connected therewith.
• The main aim of this Act is to give an opportunity to offenders to reform themselves rather than turning into hardened criminals.
• This Act provides for the release of offenders on probation or after due admonition.
• The Act permits the release of criminals on probation for good behavior if the alleged crime that they have committed is not punished by life imprisonment or death penalty.
• The Act allows for the release of first-time offenders upon proper admonition for those convicted under Sections 379, 380, 381, 404, and 420 of the Code of Criminal Procedure, 1973 (CrPC) as well as those who are subject to a 2-year sentence or a fine or both.