On POCSO Act: Errors of judgment

News: The Allahabad High Court recently held that oral sex with a minor is not a case of ‘aggravated penetrative sexual assault’ under the Protection of Children from Sexual Offences (POCSO) Act.

About Section 5 and 6 of the POCSO Act

Section 5(m) of the Act clearly lays down that “whoever commits penetrative sexual assault on a child below twelve years” is said to commit “aggravated penetrative sexual assault”.

Section 6 prescribes punishment with imprisonment for a term which shall not be less than 10 years but may extend to imprisonment for life.

Read moreThe POCSO Act and associated issues
Why the Allahabad High Court verdict is controversial?

According to R.K. Vij, a senior IPS officer of Chhattisgarh, the High Court overlooked Section 5(m) of POCSO and convicted the accused of ‘penetrative sexual assault’ with lesser punishment. Further, he mentions the judgment has the following issues with the judgment.

Firstly, there is no ambiguity about the language used in Section 5 of the Act. Recently, the Supreme Court, while dismissing the requirement of skin-to-skin physical contact in cases of sexual assault, held that where the language of a statute was clear. So, there was no reason for the Court to deviate from the law and award lesser punishment.

Read more: The significance of Supreme Court’s recent POCSO decision

Secondly, the POCSO Act does not provide any discretion in awarding punishment of imprisonment. So, the Court was mandated to adhere to the statutory provisions. Hence, the Court cannot award lesser punishment than the minimum 10 years as prescribed in Section 6 of POCSO.

Note: Earlier, the Courts had discretion under Section 376 (punishment for rape) of the IPC to award lesser punishment. But the SC in the State of Rajasthan v. Vinod Kumar case (2012) set aside the High Court order which reduced sentences less than the minimum without recording ‘adequate and special reasons’. 

Thirdly, earlier the Supreme Court has held that recording of reasons by a judge is an exercise of judicial accountability and transparency. This makes the decision available for further scrutiny. But, the High Court did not deliberate on the reasons for not considering the offence as being of aggravated nature.

Fourthly, it was not even a case where the provision of minimum punishment of 10 years imprisonment for aggravated penetrative sexual assault was under challenge. When there is no such scrutiny, the Court fell into error by not considering the offence under the applicable relevant sections.

What should be done?

Since, monitoring the implementation of the Act is the responsibility of the National Commission for Protection of Child Rights, the State Commission for the Protection of Child Rights, and the State government. So they must challenge the High Court ruling.

Source: This post is based on the article “Errors of judgment” published in The Hindu on 02nd December 2021.

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