“No Benefit Of Probation Act, If The Accused Is Charged Under Special Enactment”- Calcutta High Court Dismisses Criminal Appeal

Recently, Hon’ble Calcutta High court dismissed the criminal appeal filed by the accused and affirmed the trial court judgment wherein accused was held guilty under Sec. 8 of the POCSO and was sentenced to undergo three years Rigorous imprisonment. The Hon’ble court also rejected the plea of accused for the benefit of Probation of Offender Act holding therein that SUPERINTENDENT, CENTRAL EXCISE VS. BAHUBALI reported in (1979) 2 SCC 279 held that 1958 Act may not apply in cases where a specific law enacted after 1958 prescribes a mandatory minimum sentence.”

Further Hon’ble court also relied on STATE VS. RATAN LAL ARORA reported in (2004) 4 SCC 590 wherein it was held that ““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.”

BRIEF FACTS OF THE CASE

Mrs. Nitu Prasad of 18 Hem Bose Lane, Shibpur, Howrah set the criminal proceeding into motion by informing Inspectorin-Charge of Howrah Police Station that on 28.9.2014 she along with her daughter went to a market near Mallick Fatak. On their way back at about 9.30 PM while they were walking down the foot path a boy came and pawed her daughter. She screamed and managed to catch hold of the boy. Within a few minutes police arrived there and took the boy to their custody. The informant came to know that boy as Prakash Shaw of Hut Lane, Mallick Fatak, Howrah.

The information since disclosed offence cognizable in nature Howrah P.S. Case No. 610 of 2014 dated 28.9.2014 was registered under Section 354(A) of the I.P.C. read with Section 8 of the Protection of Children from Sexual Offences Act, 2012. Police took up investigation which culminated into submission of charge sheet against the accused person.

CONTENTION OF THE APPELLANT

learned counsel representing the appellant assails the impugned judgement. According to Mr. Mukherjee, learned Trial Court ought to have considered the discrepancies apparent between the testimony of the de facto complainant and the victim girl. In her written information the informant P.W. 1 stated that the boy came and caught her daughter by hand from behind and placed his hand on the chest of her daughter. While adducing evidence as P.W. 1 she stated that the boy came from the opposite side and thus she contradicted herself.

It is submitted by Mr. Mukherjee, learned counsel for the appellant that the appellant was in his teen when the offence was committed and with the passage of time he has become a responsible young man who earns bread for the family. Considering the nature of offence, age of the appellant and also considering the fact he has no criminal antecedent, he may be given benefit of the Probation of Offenders Act, 1958 without subjecting him to the deleterious effect of jail life.

HON’BLE COURT’S OBSERVATIONS

Hon’ble Mr. Justice Siddhartha Roy Chaudhary observed that “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.”

Hon’ble court further placed reliance on aforesaid rulings and observed that “Probation of offenders Act, 1958, therefore cannot be made applicable in this case in derogation of such special enactment of 2012.”

In view of the above findings, Hon’ble court did not found merits in the case and subsequently dismissed the appeal with the direction to the accused to surrender before the trial court.

 

Case Title:-  Prakash Shaw Vs. State of West Bengal

Case no. :-   C.R.A. 69 of 2018

Order date :- 21.06.2023

 

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