The Allahabad High Court has courted controversy with its November 18 order wherein a single judge held that oral sex with a 10-year-old is penetrative sexual assault and not the more serious charge of aggravated penetrative assault.
Justice Anil Kumar Ojha observed that putting a penis in the mouth does not fall in the category of aggravated sexual assault or sexual assault. Rather, the crime could be categorized as the lesser crime of penetrative sexual assault which is punishable under Section 4 of the Protection of Children from Sexual Offense Act (POCSO), 2012.
The high court thus convicted Sonu Kushwaha under a lesser POCSO charge which also resulted in a reduced jail sentence from a minimum of 10 years to seven years.
However legal experts have questioned the correctness of this order because the age of the minor is important since an accused would attract graver POCSO charges if the crime is committed against a minor who is less than 12 years of age.
"To my understanding, it is a clear-cut case of Section 6, POCSO for the simple reason of age of the child being below 12 years, which is also recorded in the initial part of the order saying the age of the victim is 10 years," advocate Anant Asthana told BOOM.
BOOM examines the controversy on this issue.
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What is the case about?
The high court's order came on a plea filed by Sonu Kushwaha who was challenging a special court's verdict convicting him under Section 377 (unnatural offences) and Section 506 (punishment for criminal intimidation) of the Indian Penal Code (IPC), 1860 and under Section 6 of the POCSO Act. Kushwaha was convicted for soliciting oral sex and ejaculating in the mouth of a 10-year-old boy by paying him Rs. 20.
The high court partly allowed Kushwaha's appeal by convicting him of a lesser POCSO charge. "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 had observed.
"After going through the records and provisions of POCSO Act, I am of the considered opinion that the appellant should be punished under Section 4 of POCSO Act because the act done by appellant falls in the category of penetrative sexual assault", the high court's order read.
Section 5 of the POCSO act outlines the scope of 'aggravated penetrative sexual assault' which has certain conditions one of which stipulates that 'whoever commits penetrative sexual assault on a child below twelve years' would be punishable with the offence of 'aggravated penetrative sexual assault' and is punishable under Section 6 of the Act.
Section 9(m)—aggravated sexual assault—also applies to the accused if the victim is less than 12 years.
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Judge committed error in oversight of victim's age
Advocate Anant Asthana pointed out that there seemed to be "an oversight of the factum of age".
"This is actually the problem associated with tying the hands of Judiciary with prescription of harsh minimum sentences and leaving no scope for judicial discretion in sentencing," he added. "Actually, in practice it is quite common to see police and the judges not paying much attention on the age-related component (of the victim) while determining and applying POCSO charges against the accused," Asthana said.
"The more tender the age, the more severe the punishment has been a norm. POCSO and even the rape laws in the IPC follow this. A judge has to not only punish, he has to also choose appropriate punishment as legislatively mandated. In this case, the judge did not apply the correct provision and did not explain why the aggravated penetrative sexual assault provision is not applicable," law professor Kumar Askand Pandey told BOOM.
"There are approximately 22 factors prescribed in the POCSO Act which elevate an offence to the degree of 'Aggravated' (sexual assault). Age is one of such several factors. Age of 12 years is age of innocence and an offence against a child below the age of 12 makes a POCSO offence aggravated. But in practice, while other very visible aggravating aspects are noticed by police and judges, the aspect on age is often overlooked," Asthana explained.
"There has clearly been a misreading of the basic provisions of the POCSO Act, and it's unfortunate that Constitutional courts are faltering in these basic duties of interpretation," advocate Radhika Roy told BOOM.
However, Roy added that she did not condone the outrage surrounding the rendering of this judgment because most of the headlines give the impression that the Court went "easy on the convict".
"Media houses also have a duty to not misrepresent such orders—this sensationalism for the sake of a few extra likes ends up spreading misinformation and is quite unbecoming," Roy said.
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Mandate of minimum sentence deprives a judge of exercising judicial discretion
While referring to the high court's order, advocate Anant Asthana said that the prescription of minimum mandatory sentences in laws substantially deprives judges of the exercising judicial discretion
"There is anxiety going on in Judiciary on this trend. Nature of offence is not the only determinant for sentencing. Judges want to form a comprehensive view on sentences. In this case, it appears to me that Court was not fully convinced about the degree of punishment awarded by the trial court and if we keep aside the technicality of which section of POCSO applied and which did not, the net impact of this order is a reduction in sentence," Asthana told BOOM.
However, law professor Dr Kumar Askand Pandey said, "I don't agree that this judge's decision was based on an apprehension of imposing a mandatory minimum sentence."
"There's a school of thought that believes that mandatory minimum is cruel, ties the hands of the judges, and should be done away with," he said.
The trial court judge does not have the power to ignore mandatory minimum sentences, but a judge in a constitutional court—like the supreme court or high court—does. "A constitutional court may strike down the provision of a mandatory minimum sentence on the ground that it may arbitrary, cruel, or degrading. Constitutional courts in the United States of America and Canada recently exercised this option in an Arms Cases," Pandey added.
But when a judge exercises such options, he must speak his mind, otherwise, such orders will send a wrong signal" he said.
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