Justice Pushpa Ganediwala has given another controversial judgement w.r.t. POSCO Act. It is difficult to fathom as to how a High Court Judge give such an unprecedented judgement which is likely to set a dangerous precedent.
In the latest controversy, the complaint is filed by the mother of the minor victim. Who had alleged that the accused pants were unzipped and he was holding the hands of her minor daughter. In her complaint she has also informed that her daughter had told her that the accused removed his penis from his pants and asked her daughter to “come to the bed for sleeping.”
Since the victim is less than 12 years old the matter falls under the section 9 of the POSCO Act i.e. Aggravated Sexual Assault. According to Section 9, “whoever commits sexual assault on a child below twelve years…is said to commit aggravated sexual assault”. The punishment of Aggravated Sexual Assault is given in section 10 of the POSCO Act. According to which “Whoever, commits aggravated sexual assault shall be punished with imprisonment of either description for a term which shall not be less than five years but which may extend to seven years, and shall also be liable to fine.”
The sessions court had convicted the accused under the sections 8, 10 and 12 of the POSCO Act but the High Court set aside this conviction and found the accused guilty under section 354A 1(i) of the IPC which talks about sexual harassment. Section 354A is as follows-
- A man committing any of the following acts—
i. physical contact and advances involving unwelcome and explicit sexual overtures; or
- a demand or request for sexual favours; or
- showing pornography against the will of a woman; or
- making sexually coloured remarks, shall be guilty of the offence of sexual harassment.
- 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.
- 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.
Whereas, under the POSCO Act the imprisonment for committing aggravated sexual assault is not less 5 years, the imprisonment under IPC for sexual harassment is of maximum 3 years.
Whereas the sessions court had sentenced the 50year old accused 5 years of rigorous imprisonment and fine of Rs.25000. The High Court opined that, “Considering the nature of the act, which could be established by the prosecution and considering the punishment provided for the aforesaid crimes, in in the opinion of this Court, the imprisonment which he has already undergone would serve the purpose”. This means that 5 months of imprisonment is sufficient as the accused was in prison for that duration before the appeal before the High Court.