Constitutional Bar Against Retrospective Imposition Of Harsher Penalty Is Absolute

1. Leave granted.

2. The present appeal arises from the judgment dated

05.09.2023 passed by the High Court of Chhattisgarh,

whereby the appellant’s appeal challenging the judgment of

conviction dated 30.11.2021 rendered by the Trial Court was

dismissed. By the said judgment, the appellant was convicted

under Section 376AB of the Indian Penal Code, 18601 and

Section 6 of the Protection of Children from Sexual Offences

Act, 20122 and sentenced to imprisonment for life, meaning

imprisonment for the remainder of his natural life, along with

a fine of ₹10,000/-.

1

IPC.

2 POCSO.

3. The facts, in brief, are as follows:

3.1. On 26.06.2019, the father of the prosecutrix (PW-3)

lodged FIR No. 37/2019 at Police Station Vishrampur,

Kondagaon, Chhattisgarh. He stated that on

20.05.2019, he, his wife, and mother had gone to attend

a marriage ceremony in the village, leaving their two

children at home. The prosecutrix, then aged about 5

years, was playing outside the house. When his wife was

later unable to locate their daughter, she went to the

appellant’s house and questioned him about her

whereabouts. Upon being confronted, the appellant fled.

3.2. The FIR was registered against the appellant alleging

that he had lured the prosecutrix to his house and

committed rape upon her.

3.3. The Trial Court framed charges against the appellant

under Section 376AB IPC and Section 6 of the POCSO

Act.

3.4. Upon consideration of the oral and documentary

evidence adduced, the Trial Court recorded a categorical

finding that the appellant had lured the minor

prosecutrix into his house and forcibly committed rape

on her. The appellant was accordingly convicted and

sentenced under Section 6 of the POCSO Act to life

imprisonment for the remainder of his natural life, along

with a fine.

3.5. The High Court, in the impugned judgment, affirmed

the conviction and sentence. It recorded that no

leniency could be shown in light of the fact that the

victim was a five year old child and the crime committed

was of a grave and heinous nature.

3.6. Aggrieved by the said conviction and sentence, the

appellant has approached this Court.

4. We have heard learned counsel for the parties.

5. By order dated 30.09.2024, notice was issued limited to the

question of sentence.

6. The submission advanced on behalf of the appellant is that

the incident occurred on 20.05.2019. While the conviction is

under Section 6 of the POCSO Act, the Protection Of Children

From Sexual Offences (Amendment) Act, 2019, which came

into force on 16.08.2019, enhanced the minimum sentence

to 20 years and redefined “imprisonment for life” to mean

imprisonment for the remainder of the natural life. It is the

appellant’s contention that the sentencing court erred in

applying the amended provisions retrospectively, as the

incident in question took place prior to the amendment.

7. The State, opposing any modification in sentence, contends

that the appellant does not deserve any leniency considering

the nature and gravity of the offence committed.

8. Section 6 of the POCSO Act, prior to the 2019 amendment,

read as under:

“6. Punishment for aggravated penetrative sexual

assault – Whoever commits aggravated penetrative sexual

assault shall be punished with rigorous imprisonment for

a term which shall not be less than ten years but which

may extend to imprisonment for life and shall also be liable

to fine.”

9. This Court, having found no merit in the challenge to

conviction, had confined its notice to the question of

sentencing. However, we find merit in the appellant’s

submission that since the offence was committed on

20.05.2019, the amended provision of Section 6 of the

POCSO Act, which came into force on 16.08.2019, could not

have been applied to his case.

10. In this regard, Article 20(1) of the Constitution of India

is relevant and reads as under:

“20. Protection in respect of conviction for offences –

(1) No person shall be convicted of any offence except for

violation of a law in force at the time of the commission of

the act charged as an offence, nor be subjected to a penalty

greater than that which might have been inflicted under

the law in force at the time of the commission of the

offence.”

11. The Constitutional bar against retrospective imposition

of a harsher penalty under Article 20(1) is clear and absolute.

The Trial Court, in applying the enhanced sentence

introduced by the 2019 Amendment to Section 6 of the

POCSO Act, has effectively subjected the appellant to a

punishment greater than that which was permissible under

the law in force at the time of commission of the offence which

is clearly violative of the bar contained in Article 20(1) of the

Constitution of India.

12. The sentence of “imprisonment for life, meaning

remainder of natural life,” as per the amended provision, did

not exist in the statutory framework on 20.05.2019, the date

of the incident. Under the unamended Section 6, the

maximum punishment permissible was imprisonment for life

in its conventional sense and not imprisonment till the

remainder of natural life.

13. Accordingly, while we uphold the conviction of the

appellant under Section 6 of the POCSO Act, we modify the

sentence to that of rigorous imprisonment for life, as

understood under the unamended statute, and set aside the

sentence of imprisonment for the remainder of the natural

life. The fine of ₹10,000/- is maintained.

14. Appeal is partly allowed as per the findings above.

15. Pending application(s), if any, stand disposed of.

…………………………..J.

(VIKRAM NATH)

…………………………..J.

(SANDEEP MEHTA)

New Delhi

July 25, 2025