Mar 11, 2022

Protecting Children from Sexual Offences: Why is the Allahabad High Court decision under the scanner?

TRIGGER WARNING: The following content contains information on child sexual abuse which some readers may find disturbing.

The Protection of Children from Sexual Offences Act, also known as the POCSO Act, was introduced in the year 2012 to protect children (persons of any gender below the age of 18 years) from sexual abuse and exploitation. 


What has the Allahabad High Court held?

On 18th November 2021, the Allahabad High Court reduced the number of years of imprisonment of a convicted sexual offender from 10 years to 7 years [Sonu Kushwaha v. State of Uttar Pradesh Cr. Appeal No. 5415 of 2018]. The reason the judge gave for this reduction was that it was a case of penetrative sexual assault and not one of aggravated penetrative sexual assault.


What is the difference between ‘Penetrative Sexual Assault’ and ‘Aggravated Penetrative Sexual Assault’?


‘Penetrative Sexual Assault’ is the act of insertion of a penis or any other object into the vagina, mouth, urethra or anus of a child, or of asking the child to do the same [Section 3 of POCSO Act]. It includes the manipulation of these body parts of the child in a way that amounts to penetration or the touching of these body parts of a child by mouth. The punishment for ‘Penetrative Sexual Assault’ is imprisonment for not less than 7 years, but which can extend up to life imprisonment [Section 4 of POCSO Act].


‘Aggravated Penetrative Sexual Assault’ includes the act of committing a penetrative sexual act on a child who is below the age of 12 years [Section 5(m) of POCSO Act]. It is punishable with imprisonment for not less than 10 years, but which can extend up to life imprisonment [Section 6 of POCSO Act].


Why is the Allahabad High Court’s judgment being criticised?


Here, the Judge agreed that the accused had inserted his penis into the mouth of a child who was about 10 years of age. As we saw above this is an act of ‘Aggravated Penetrative Sexual Assault’, for which the minimum punishment  is 10 years. It is not clear how the judge classified this as a case of ‘Penetrative Sexual Assault’.


How can this error be remedied?


The prosecution can appeal this decision before the Supreme Court of India within 3 months of the date of the High Court’s judgment. The Supreme Court, after considering all the facts and the law, can once again restore the punishment of 10 years or even increase it, as it deems fit. 

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