errors of judgment

The Allahabad High Court recently said that Oral sex with a minor (approximately 10 years of age in this case) is not a case of ‘aggravated penetrative sexual assault’. under Protection of Children from Sexual Offenses (POCSO) Act, it’s shocking Section 5(m) of the Act It clearly stipulates that “whoever commits penetrative sexual assault on a child under the age of twelve” is called “aggravated penetrative sexual assault”. Section 6 provides for punishment of imprisonment for a term which shall not be less than 10 years but which may extend to imprisonment for life.

Although Para 16 of the judgment reiterated Sections 3 to 10 of the Act, Section 5(m), all verbatim including Justice Anil Kumar Ojha, in Para 17, concluded that “putting of penis in mouth does not amount to aggravating (clairvoyant) sexual assault or sexual assault”. There seems to be an obvious error of law that must be quickly corrected.

editorial | POCSO SHOCKER: On Allahabad High Court’s decision on child sexual abuse

protect children

POCSO was enacted specifically to protect children (of any gender) from the offenses of sexual assault, sexual harassment and pornography, realizing the fact that a large number of such offenses neither specifically Provision was made and neither was adequately punished. The Statement of Objects and Reasons of the Act reinforces the legislative intent, which was clarified by providing a neutral definition and providing enhanced punishment for various offenses of a sexual nature. Although section 42 on ‘alternative punishment’ was specifically introduced in the POCSO to provide for greater punishment, in case of difference when compared to any other law, to remove discrepancies in the quantum of punishment for the same or similar The Indian Penal Code was also amended for this. Crime

Second, there is no ambiguity about the language used in section 5 of the Act. Recently, the Supreme Court rejected the requirement for skin-to-skin physical contact in sexual assault cases, holding that where the language of a statute was explicit, the intent of the legislature was to collect from the language used. In the absence of the ambiguity of the language used in Section 5 regarding the definition of ‘aggravated penetrative sexual assault’, there was no reason for the Court to deviate from the law and award less punishment. Though the ‘rule of leniency’ was not discussed in the judgment, there was no application in the matter.

Third, this was not a case where the Court had the discretion to impose a minimum sentence of 10 years as prescribed in Section 6 of POCSO. Earlier, courts had the discretion to award a sentence less than the minimum prescribed under Section 376 (punishment for rape) of the IPC by recording ‘substantial and specific reasons’. Supreme Court, in State of Rajasthan Vs Vinod Kumar (2012) set aside the High Court order which had reduced the sentence to the minimum without recording ‘sufficient and special reasons’. However, This discretion was removed in February 2013 by amending Section 376 of the IPC. Since the POCSO Act does not confer any discretion in awarding the sentence of imprisonment, the High Court was mandated to comply with the statutory provisions.

decision to investigate

Fourth, the High Court did not consider the reasons for not treating the offense as serious in nature. The age of the victim was recorded to be around 10 years and did not even fall under the category of minor difference by 12 years. The Supreme Court has held that the recording of reasons by a judge is not an act of mere formality, but an exercise of judicial accountability and transparency. This makes the judgment available for further investigation on the test of logic and justice. Five, it was not even a case where the provision of a minimum sentence of 10 years of imprisonment for serious penetrative sexual assault disproportionate to the gravity of the offense (with the aim of protecting children below 12 years of age) was under challenge . Under Article 14 of the Constitution. When no such test of reasonableness was under investigation, the Court fell into error by not considering the offense under the relevant sections in force.

Read also | Offender’s sexual intent, not skin-to-skin contact, constitutes assault: Supreme Court

Despite quoting the relevant sections of ‘Aggravated Penetrative Sexual Assault’, the High Court ignored Section 5(m) of POCSO and convicted the accused for ‘Penetrative Sexual Assault’ with lesser punishment. Since the monitoring of the implementation of the Act is the responsibility of the National Commission for Protection of Child Rights, State Commission for Protection of Child Rights and the State Government, this decision, which appears to be counter-conduct, must be challenged so that the accused cannot be caught in the clutches of the appropriate sections of the POCSO Act. Escape is not allowed.

RK Vij is a senior IPS officer from Chhattisgarh and views are personal