ABSTRACT
The critical analysis of sentencing practices in rape cases in relation with the procedural transformations introduced by India’s new criminal legislation the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 and their interplay with the Protection of Children from Sexual Offences (POCSO) Act, 2012. Criminal laws are of two types: substantive and procedural. While substantive criminal laws under Bharatiya Nyaya Sanhita (BNS), 2023 prescribes stricter rules on penalties for sexual offences, the procedural criminal framework Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 mentions how these sentences are determined, mitigated, or aggravated in practice.
INTRODUCTION
Sexual violence, particularly rape, remain as one of the serious violations of the bodily integrity and human dignity. In India, the legal pillars addressing such offences are The Protection of Children from Sexual Offences (POCSO) Act, 2012 and the newly enacted criminal legislation Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 plays a crucial role in shaping both the substantive and procedural framework governing the prosecution and sentencing of rape and sexual offences.
The POCSO Act was a landmark in child rights jurisprudence, introducing a comprehensive gender neutral, and child – sensitive legal regime to address sexual offences against children. The Act expanded the definition of sexual assault, criminalised penetrative and non – penetrative actions, and introduced punishments including mandatory minimum sentences.
In 2023, the Indian criminal justice system repealed the colonial era Code of Criminal procedure, 1973 (CrPC) and replaced it with Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023. The BNSS along with Bharatiya Nyaya Sanhita (BNS) and the Bharatiya Sakshya Adhiniyam (BSA), form the new trinity of Indian criminal law. BNSS introduces the procedural mandates that mentions the sentencing process in rape cases. These Act includes Sections such as Section 184 which mandates the medical examination of a rape victim be concluded within 24 hours of the police receiving the information and Section 52 which provides for the examination of the accused. Thus the aim of this Act is to strengthen evidentiary standards, reduce delays, and protect the dignity and rights of both the victim and the accused.
KEY WORDS: Sexual Violence, Rape, Child – Rights, Human Dignity, Bodily Integrity, BNSS, POCSO.
POCSO AND BNSS: The Intersection of Substantive and Procedural Law in Sentencing
The Protection of Children from Sexual Offences (POCSO) Act, 2012 was enacted to create a specialised, victim – centric legal regime addressing the sexual offences against minors. As per Section 2(1) (d) under this Act, 2012 any person below the age of 18 years is defined as a child. The offences are categorised as penetrative under Section 3, aggravated and non – penetrative sexual assaults. In the landmark case of Attorney General for India v. Satish & Anr. [2021 INSC 762] where the Supreme Court clarified that “sexual intent” is an essential element in offences under POCSO, especially for non‐penetrative sexual assault. This affects what acts are criminal, thus what kind of proof is needed—and hence how sentencing may be influenced by the nature of the offence.
The legal provisions under the Act, 2012 are as follows:
- Section 4 – Provides that any person who commits penetrative sexual assault shall be punished with imprisonment of either description for a term not less than ten years, which may extend to imprisonment for life, and shall also be liable to fine. Where the offence is committed against a child below sixteen years of age, the punishment shall be imprisonment for a term not less than twenty years, which may extend to imprisonment for the remainder of the offender’s natural life, along with a fine. The fine imposed under this section must be just and reasonable and paid to the victim to cover medical expenses and rehabilitation.
- Section 6 – Provides that any person who commits aggravated penetrative sexual assault shall be punished with rigorous imprisonment for not less than twenty years, which may extend to imprisonment for life meaning for the remainder of the offender’s natural life or with death, and shall also be liable to pay a just and reasonable fine to the victim for medical and rehabilitation expenses. In the case of Satauram Mandavi v. The State of Chhattisgarh & Anr. [2025 INSC 892] Bench of Justice Vikram Nath and Justice Sandeep Mehta held, “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.”
- Section 8 – Provides that any person who 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.
- Section 10 – Provides that any person who 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.
These sections defines the punishments as an substantive law in cases of offences such as penetrative assault, aggravated penetrative assault, sexual assault, aggravated sexual assault.
The BNSS incorporates several procedural innovations and safeguards that impact the handling of sexual offences cases. The key legal provisions of BNSS, 2023 are as follows:
- Section 184 – Mandates that medical examination of a victim of rape or sexual assault be conducted by a registered medical practitioner within 24 hours of the incident being reported to the police. In the case of Ajay Kumar Behera v. State of Karnataka [2024 KHC 27306] the Karnataka High Court directed that until formal amendment is made, medical examination of rape victims under Section 184 BNSS should be conducted only by, or under supervision of, female registered medical practitioner; also that hospitals/medical practitioners must provide legibly written/certified medical reports. This is an early example of courts enforcing procedural dimensions of BNSS that may influence how aggravating factors (e.g. injuries) are medically documented.
- Section 52 – Examination of the accused must be done by a medical practitioner at the request of a police officer not below the rank of sub – inspector. This is to ensure timely collection of biological and DNA evidence which are critical for investigations.
- Section 173 – This section authorises the recording of the statements through audio – visual electronic means, reducing trauma of repeated depositions and ensuring accuracy relevant for child victims under POCSO.
- Section 21 – Offences involving sexual violence should be tried by courts presided over by women judges, promoting gender – sensitive adjudication.
THE INTER – RELATION BETWEEN BNSS AND POCSO
BNSS as the procedural backbone as it provides investigative for the offences registered under POCSO. Section 184 of BNSS strengthens enforcement of Section 27 of POCSO which mandates medical examination of a child by a registered medical practitioner preferably of the same gender. The BNSS requirement of examination within 24 hours harmonises with this, creating procedural uniformity. In the case of Ajay Kumar Behera v. State of Karnataka [2024 KHC 27306] it is directed to amend Section 184 of BNSS to mandate female medical practitioners for sexual offence victims.
While BNSS governs general trial procedures, POCSO under Section 28 – 32 provides for Special Courts. In the Case of Mohd. Firoz v. State of Madhya Pradesh [AIR 2002 SC 1967] explains the trinity “Equality, Justice, and Liberty” as a fair trial recognised in the administration of justice. They concluded that trial or appeal is not obligated to protect rights of the accused but also rights of the victim and interest of society at large.
Both the statutes converge on protecting the dignity and comfort of the victim during testimony. Section 173 of BNSS, 2023 allows audio – visual recording while aligning with Section 24(1) of POCSO, 2013, which mandates that the child’s statement be recorded at their residence or at a place where he usually resides or at the place of his choice.
CRITICISMS
Despite the progressive intent, both the BNSS, 2023 and POCSO Act, 2012 face significant criticisms in sentencing practices. While POCSO mandates minimum punishments this restricts the judicial discretion which often lead to disproportionate outcomes especially in consensual cases. though a consent given by a minor is invalid to have consensual relation.
Another criticism is the overlapping and lack of coordination between the BNSS, 2023 and POCSO Act, 2012. While BNSS lays down general procedural rules for all criminal cases, POCSO contains only offences related to children, Special Courts, child – friendly procedure and so on. This dual applicability creates jurisdictional confusion.
CONCLUSION
The BNSS plays a critical supportive role in the realm of sexual offences relating to child sexual offences by laying down investigation, medical examination, court – jurisdiction and trial norms. The substantive law for children is the POCSO Act. The interplay between substantive law, POCSO, and procedural law, BNSS ensures how seamlessly they work for child victims.
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WRITTEN BY- SUSMITA ROYCHOWDHURY
