A Mumbai special court has held that a person accused of offences against children shall be punished under the Protection of Children from Sexual Offences (POCSO) Act given that this is a special provision for handling such offences. The court observed that the accused shouldn’t be prosecuted under Section 354 (outraging the modesty of a woman) of the Indian Penal Code (IPC).
The special court was hearing a case wherein a 17-year old girl who was on her way to a public toilet in her locality when a 25-year old man forcefully took her into his home and molested her by grabbing her breasts. When the girl attempted to scream for help, he is said to have blocked her mouth shut.
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Fortunately, the girl managed to push him away and get out of his home, catching the attention of her cousins nearby who rushed to the scene. Though the accused managed to run away, the police managed to apprehend him later.
Following the incident, a First Information Report (FIR) was filed under Section 8 of the POCSO Act as well as Section 354 of the IPC. It’s worth mentioning here that Section 8 of the POCSO Act comes with a minimum imprisonment of three years whereas a person convicted under Section 354 of the IPC will face a minimum of one year in jail.
This case is pertinent to the current legal environment and is in line with the recent judgment by the Nagpur bench of the Bombay High Court on Jan 19 wherein the accused was acquitted under the POCSO Act but found to be guilty under Section 354 of the IPC with the reasoning being that there was no “skin to skin contact with sexual intent by the accused”. However, the Supreme Court stayed the HC judgment on January 27.
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Section 42 of the POCSO Act clears up some of the judicial confusion, stating that in cases wherein an offender is booked under Section 354 of the IPC as well as Section 8 of the POCSO Act, the offender shall receive the punishment that is “greater in degree”.
With this consideration, the aforementioned Mumbai special court sentenced the accused to three years in jail, saying “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 POCSO Act was brought into force in 2012 as a means of dealing with child sexual abuse. The law is largely seen as gender-neutral with regard to the victims as well as the accused. However, Section 354 of the IPC pertains only to female victims of abuse.
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