Allahabad High Court’s Interpretation Of Pocso Act
Judgement Given On : 21/07/2023
Introduction
A recent judgment by the Allahabad High Court has sparked debate and concern over its interpretation of the Protection of Children from Sexual Offences (POCSO) Act. In this case, a 10-year-old boy was subjected to sexual assault, involving a penetrative act. While the court acknowledged this act as “penetrative sexual assault” under the POCSO Act, it did not classify it as “aggravated penetrative sexual assault.” This distinction is pivotal as the former carries a minimum prison term of seven years, while the latter mandates a minimum of ten years, extendable to life imprisonment.
Legal Framework
The heart of the matter lies in the interpretation of Section 5 of the POCSO Act, which delineates circumstances that escalate a sexual offense to its aggravated form. These circumstances encompass various scenarios, such as when the offender is a police officer, a member of the armed forces, a public servant, or is associated with specific institutions like jails, remand homes, hospitals, educational or religious institutions, or any place of custody or care and protection. Additionally, aggravated offenses include those committed by a group of offenders, repeated offenses, offenses involving deadly weapons, causing grievous harm or injury, leading to physical or mental incapacitation, pregnancy, or disease. Importantly, Section 5(m) explicitly adds that “whoever commits penetrative sexual assault on a child below 12 years” falls within the ambit of aggravated offenses.
Analysis of the Verdict
The verdict from the Allahabad High Court has invited scrutiny due to its characterization of the offense as non-aggravated, resulting in a reduced sentence from ten years to seven years. This interpretation has raised concerns, as it appears to disregard the provisions of Section 5(m) of the POCSO Act, which explicitly includes penetrative sexual assault on a child below 12 years as an aggravated offense.
The Issue of Per Incuriam
The term “per incuriam” refers to a judgment made without due regard to the law and facts. Legal experts argue that the Allahabad High Court’s verdict may fall into this category due to its apparent omission of the relevant legal provision. The ruling’s potential misinterpretation or disregard of Section 5(m) of the POCSO Act raises questions about its legal soundness.
Implications and the Need for Review
The ramifications of this verdict are significant, as it sets a precedent for lower courts handling similar cases. Interpreting the POCSO Act in this manner could potentially dilute the severity of offenses against children and inadvertently lead to reduced sentences for perpetrators.
Given the potential legal oversight, legal scholars and experts suggest that this verdict warrants a review. Clarity on the applicability of Section 5(m) and the categorization of penetrative sexual assault on a child under 12 years as an aggravated offense is essential to ensure the effective implementation of the POCSO Act and the protection of children’s rights against sexual offenses.