Aggravated penetrative sexual assault under POCSO Act: What the Allahabad High Court missed

Almost a decade after its passing, it seems that the provisions of the POCSO Act are yet to be given effect to in letter and spirit by the courts in the country.

The Protection of Children from Sexual Offences (POCSO) Act was enacted by Parliament in the year 2012 to protect children from offences of sexual assault, sexual harassment and pornography.

The legislation was passed in furtherance of the mandate under Article 15 read with Article 39 of the Constitution of India, and after the ratification of the United Nations Convention on the Rights of Children, in 1992, which requires State parties to undertake all appropriate measures to prevent the inducement or coercion of a child to engage in any unlawful sexual activity or any exploitative use of children.

Almost a decade after its passing, it seems that the provisions of the POCSO Act are yet to be given effect to in letter and spirit by the courts in the country.

Recently, the Allahabad High Court, in its judgment delivered on November 18 in an appeal by an accused who put his penis into the mouth of a 10-year-old boy, had modified the conviction the accused by holding that this act would fall within the ambit of Section 3 (penetrative sexual assault). An offence under this Section carries a minimum sentence of 7 years' imprisonment under Section 4. The Court held that the act would not fall under Section 5 (aggravated penetrative sexual assault), punishable under Section 6 with minimum imprisonment of 10 years which may extend to imprisonment for life and fine.

Penetrative sexual assault is defined under Section 3, which reads, “a person is said to commit penetrative sexual assault if he penetrates his penis, to any extent, into the mouth of a child or makes the child do so.”

The judgment notes in two places that the victim was 10 years old at the time of the incident. Despite this, unfortunately, the judge has not taken note of clause ‘m’ of Section 5 of the POCSO Act, which reads that whoever commits penetrative sexual assault on a child below 12 years is said to have committed aggravated penetrative sexual assault. In fact, the judgment even makes a mention of this provision, but does not apply it to the facts of this case.

Thus, the view taken by the Allahabad High Court is erroneous on the face of Clause ‘m’ of Section 5 read with Section 3 of the POCSO, and the view taken by the Special Court was rather a correct view.

It is unfortunate that in recent times, High Courts have been delivering judgments pertaining to various provisions of the POCSO Act with hugely varying interpretation. This, despite the fact that the provisions of the POCSO Act are very clear and the language is unambiguous, leaving no room for confusion or unnecessary legal jugglery.

A classic example was seen in what came to be known as the 'skin to skin' judgment of the Bombay High Court, which held that pressing the breast of a child without removing her clothes will not amount to 'sexual assault' under Section 7. While setting aside this judgment, the Supreme Court held that the law has to be given an interpretation that gives effect to the intention of legislature instead of defeating it.

Similarly, in July this year, the Madras High Court observed that judges dealing with cases under the POCSO Act, must necessarily be given special training and sensitisation on how to deal with such cases. Justice P Velmurugan was prompted to make this observation after he noted that a trial court judge had failed to appreciate the legal consequences that would follow when a child subjected to sexual assault was below the age of 12 years.

To say the least, in this case, both the public prosecutor and the Court failed in their duties when it comes to applying the mandate of the provisions of the POCSO Act.

Shobha Gupta is a practicing advocate at the Supreme Court.

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