SC: Death Penalty can’t be Imposed by Giving Retrospective Effect to POCSO Amendment to an Offence Committed Prior to Amendment

By Sharvari Lohakare

On Monday, the Supreme Court rejected to apply retrospectively the imposition of death sentence under the Protection of Children from Sexual Offences Act (POCSO), 2012, included with effect from 6th August, 2019. The division bench comprising Justices SK Kaul and KM Joseph heard a special leave petition (SLP) favoured by the State of Telangana on the limited issue that the death sentence inflicted by the Trial Court has been amended by the High Court to a life sentence although the respondent convict shall not be released till his last breath. The counsel who appeared on behalf of the petitioner state argued that a signal goes to the society by imposition of the death sentence. Advocate B Madhavan submitted that the imposition of death sentence was included in the Protection of Children from Sexual Offences Act, 2012 with effect from 6th August, 2019and the offence was committed on 18/19 of June, 2019. She also argued that considering the intent of the Parliament, it should be given retrospective effect even though the provision is prospective in nature.

The bench concluded that it is of the view that the High Court has deemed it appropriate to impose the life sentence till the last breath. The court however should not interfere only for conversion of the same into again a death sentence as imposed by the Trial Court as under Article 136 of the Constitution of India.

(136. Special leave to appeal by the Supreme Court

(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India

(2) Nothing in clause ( 1 ) shall apply to any judgment, determination, sentence or order passed or made by any court or tribunal constituted by or under any law relating to the Armed Force.)

Vide POCSO (Amendment) Act, 2019; death sentence was inserted as the punishment for aggravated penetrative sexual assault in Section 6 of the principal Act.

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