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NCPCR Asks UP Govt To File 'Urgent Appeal' Against Allahabad High Court's Contentious 'Oral Sex With Minor' Judgment

Sparsh Upadhyay
24 Nov 2021 4:20 PM GMT
National Commission for Protection of Child Rights, NCPCR, Allahabad High Court, Oral Sex With Minor, uttar pradesh government, Section 4 of the POCSO Act, sexual abuse, penetrative sexual assault,  aggravated sexual assault,
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The National Commission for Protection of Child Rights (NCPCR) today wrote to the Uttar Pradesh Government asking it to file an "urgent appeal" against a recent Allahabad High Court Judgment wherein the sentence of a Convict has been commuted in a sexual assault case involving a 10-year-old minor.

Read more about the Judgment here: Oral Sex With 10-Yr-Old Boy Not An 'Aggravated Sexual Assault' But 'Penetrative Sexual Assault' Under POCSO Act: Allahabad High Court

Essentially, the Allahabad High Court, while dealing with the appeal of a POCSO Convict, accused of committing oral sex with a 10-year-old boy, observed that putting the penis into the mouth does not fall in the category of aggravated sexual assault or sexual assault.

While commuting his sentence, the Court had observed that the act of the convict would come under the category of penetrative sexual assault (and not 'aggravated penetrative sexual assault'), which is punishable under Section 4 of the POCSO Act.

Referring to Allahabad High Court's judgment [Sonu Kushwaha v. State of Uttar Pradesh], the letter written by Commission's Chairperson Priyank Kanoongo and addressed to the Chief Secretary, Government of Uttar Pradesh, states thus:

"...it has been observed by the Commission that the observations of the Hon'ble High Court in the present matter for commutation of sentence of the accused from 10 years to 7 years and the offence from Aggravated Penetrative Sexual Assault (Section 5 and 6) to Penetrative Sexual Assault (Section 3 and 4) seems to be not as per the letter and spirit of the POCSO Act, 2012."

The letter further avers that the commutation of the sentence of the accused in the case is prejudicial to the justice delivered to the victim in this case and against this backdrop, the Commission feels that such necessary steps in the matter to file an urgent appeal against the aforesaid Judgement of Hon'ble High Court must be taken by the State.

The Commission has stressed that as per Section 44 of the POCSO Act, NCPCR is the monitoring body regarding the implementation of the POCSO Act, and thus, the letter calls upon the State Government to file an urgent appeal against the order.

Further, the commission has also requested the chief secretary to provide details of the minor so that legal aid could be provided to the child.

Allahabad High Court Judgment

Pursuant to the perusal of the specific provisions of the POCSO Act, the Bench of Justice Anil Kumar Ojha observed that the Act [putting a penis inside the mouth of a child] falls under the category of 'penetrative' sexual assault punishable under Section 4 of the POCSO Act 2012.

"It is clear that offence committed by appellant neither falls under Section 5/6 of POCSO Act nor under Section 9(M) of POCSO Act because there is penetrative sexual assault in the present case as appellant has put his penis into mouth of victim. Putting penis into mouth does not fall in the category of aggravated sexual assault or sexual assault. It comes into category of penetrative sexual assault which is punishable under Section 4 of POCSO Act", the Court observed.
Importantly, it may be noted that Section 5 of the POCSO Act outlines the scope of 'aggravated penetrative sexual assault', which the court observed, wasn't applicable in the instant case.

Further, it is significant to note that Section 5 (m) of the POCSO Act stipulates that 'whoever commits penetrative sexual assault on a child below twelve years' would be punishable with the offence of 'aggravated penetrative sexual assault', as punishable with greater punishment under Section 6 of the Act.

However, this aspect wasn't taken into account by the Court in its order, despite noting that the proven facts of the case are that the appellant had put his penis into the mouth of the victim aged about 10 years and discharged semen therein.

Click Here To Read/Download NCPCR's Letter

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