January 30, 2021 11:28:02 pm
A SPECIAL court in Mumbai recently held that since the Protection of Children from Sexual Offences (POCSO) Act is a special provision dealing with offences against children, an accused is to be punished under the Act and not under Section 354 (outraging modesty of a woman) of the Indian Penal Code.
The facts of the case before the special court are similar to the one decided by the Bombay High Court’s Nagpur bench on January 19, where the man was acquitted under the POCSO Act but held guilty under Section 354 of the IPC stating that there was no “skin to skin contact with sexual intent by the accused”.
The Supreme Court stayed the HC judgment on January 27 with Attorney General KK Venugopal submitting before the court that it is likely to “set a dangerous precedent”.
In the special court’s order delivered on January 18, a 17-year-old girl, who was visiting a public toilet in her locality, was pulled by a 25-year-old man into his home. He then pressed her breasts and, when she began shouting, he clamped her mouth shut. She pushed him away and began shouting, following which her cousins rushed to her rescue. The accused then ran away.
An FIR was filed under Section 8 of the POCSO Act and Section 354 of the IPC, and the accused was subsequently arrested. Section 8 of the POCSO Act prescribes punishment for sexual assault of a minor. Sexual assault under Section 7 of the Act includes an act done with sexual intent, which involves physical contact without penetration. While Section 8 has a minimum punishment of three years, a person convicted under Section 354 of the IPC can be sentenced to a minimum of one year in jail.
The special court held that both offences under Section 354 and Section 8 of the POCSO Act were proven against the accused. It took into consideration Section 42 of the POCSO Act, which states that, in such cases, the offender is liable to punishment under whichever law has punishment “greater in degree”.
“Though the offences punishable under Section 354 of the IPC and under Section 8 of the POCSO Act are proved, in view of the mandate of Section 42 of the POCSO Act, the accused has to be punished under the provisions of the POCSO Act as this is the special provision dealing with offences against children. So, the accused is to be punished under Section 8 of the POCSO Act and not under Section 354 of the IPC,” the court said, sentencing the accused to three years in jail.
In the HC judgment now stayed by the apex court, the judge ruled that since there was no skin to skin contact by the accused, who had similarly taken the victim into his house and touched her breasts, it amounted to punishment under Section 354 of the IPC.
The POCSO Act was enacted in 2012 as a special Act to deal with child sexual abuse. It is a gender neutral law with regard to child victims and the accused, who can be booked under it, unlike Section 354 of the IPC that is specifically for woman victims.
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