In a controversial recent judgment, the Allahabad High Court reduced the sentence handed down to a man convicted of forcing a child to perform an oral sex act, because of a clearly incorrect application of the Protection of Children from Sexual Offences (POCSO) Act.
The high court was hearing an appeal by one Sonu Kushwaha against the judgment of a special POCSO court, which had convicted him under Section 6 of the POCSO Act (ie for 'aggravated penetrative sexual assault'), as well as Sections 377 (unnatural sexual offences), and 506 of the Indian Penal Code.
[Trigger Warning: Child sexual assault]
In March 2016, Kushwaha had taken a boy aged around 10 years to a temple, given him Rs 20 and forced him to perform oral sex on him. When the boy told his family about the incident, his father filed a complaint, leading to Kushwaha's arrest and prosecution.
The minimum punishment for 'aggravated penetrative sexual assault' is 10 years' rigorous imprisonment, which was what the special POCSO court awarded to Kushwaha (along with lesser sentences for the other offences).
While Justice Anil Kumar Ojha of the Allahabad High Court upheld the conviction of Kushwaha in his judgment dated 18 November, he held that the offence committed by him did not constitute 'aggravated penetrative sexual assault' but 'penetrative sexual assault', which is a lesser offence under the POCSO Act.
The minimum punishment for penetrative sexual assault is seven years' imprisonment, which is what the high court modified Kushwaha's sentence to.
Why This is a Misreading of the POCSO Act
Justice Ojha says he arrived at his decision after reading the provisions of the POCSO Act, but a plain reading of the act shows that he has got the law wrong.
As Kushwaha had inserted his penis in the boy's mouth, this clearly fell within the definition of 'penetrative sexual assault' under the POCSO Act, ie insertion of penis in the private parts or mouth of a minor. However, that's not all.
According to Section 5(m) of the POCSO Act, any penetrative sexual assault upon a child below the age of twelve years is 'aggravated penetrative sexual assault'. 'Aggravated' offences under the POCSO Act lead to more severe punishment.
As the survivor in this case was around 10 years old at the time of the offence, once it is admitted that Kushwaha had forced him to perform oral sex on him, it is clear that he had committed 'aggravated penetrative sexual assault'.
Justice Ojha does not at any point in his judgment explain how Section 5(m) does not apply here, despite noting the survivor's age and there being no dispute that he was under 12 years of age.
Therefore, the judgment is a clear misreading of the POCSO Act and needs to be corrected immediately, through a review or an appeal.
This can be done by the high court itself without any review petition filed – as the Kerala High Court recently reaffirmed, high courts can review their own judgments of their own accord using the power under Article 226 of the Constitution.
Alternatively, the state of Uttar Pradesh can file an appeal or review, or even functionaries like the Attorney General or National Commission for Women could take the issue to the Supreme Court.
It should be noted that there are social media posts circulating at present (based on a tweet by India Today) which claim that the Allahabad High Court in this case refused to treat oral sex with a minor as 'serious sexual assault'. While the high court's decision is wrong for the reasons outlined above, these posts are also not accurate.
NOTE: As the incident took place in 2016, the enhanced punishments for offences under the POCSO Act introduced by the 2019 amendment to the law cannot apply in this case. For cases after 2019, the minimum punishment for aggravated penetrative sexual assault is 20 years and the maximum is the death penalty. For penetrative sexual assault as well, the minimum sentence has been increased to 10 years in jail, and if the child was under 16 years of age, the minimum sentence is 20 years' imprisonment.
This is not the first time that a judge of a high court has got a key provision of the POCSO Act shockingly wrong.
Justice Pushpa Ganediwala, a judge of the Nagpur bench of the Bombay High Court, delivered several problematic judgments that came to light earlier this year, including a notorious one where she held that groping a minor girl’s breasts without ‘skin-to-skin’ contact, would not amount to sexual assault under the POCSO Act.
As a result of that decision, the convict in that case also saw his sentence reduced.
On 18 November, the Supreme Court quashed that particular judgment after it was appealed by the Attorney General and the National Commission for Women.
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