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Allahabad HC holds ‘oral sex with minor not aggravated assault’, sparks row

By Saima Siddiqui 
Updated Date

Prayagraj: The Allahabad High Court has held that oral sex with a minor does not come under the “aggravated penetrative sexual assault” category that invites stricter punishment under Section 6 of the Pocso Act. The observation not only reduced the jail term of the convict of forcing oral sex on a child from 10 to seven years but also sparked controversy on social media.

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Several users on social media have criticised the court’s observation, pointing out the Supreme Court’s earlier order which stated that ‘skin-to-skin’ contact was not necessary for the offence of sexual assault under the Pocso act.

On Wednesday, the Allahabad High Court reduced the jail term of a man convicted of sexually assaulting a 10-year-old boy.

“From the perusal of the provisions of the Pocso Act, it is clear that the offence committed by the appellant neither falls under Section 5/6 of the Pocso Act nor under Section 9(M) of the Pocso Act because there is ‘penetrative sexual assault’ in the present case,” Justice Anil Kumar Ojha observed.

The crime does not fall in the category of ‘aggravated sexual assault’ or sexual assault. It comes in the category of ‘penetrative sexual assault’, which is punishable under Section 4 of the Pocso Act, he said.

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Earlier, a bench of Justices UU Lalit, S Ravindra Bhat and Bela Trivedi said restricting the meaning of “touch” to “skin-to-skin” contact would lead to “narrow and absurd interpretation” and destroy the intent of the Act, which was enacted to protect children from sexual offences.

“Touching through clothes/sheet with sexual intent is covered in the definition of Pocso. Courts should not be overzealous in searching for ambiguity in words that are plain,” the Supreme Court said. “Narrow pedantic interpretation that would defeat the purpose of the provisions cannot be allowed,” the court further said.

In 2016, an FIR was filed in the Jhansi district against a man accusing him of having “oral sex” with the 10-year-old son of the complainant in exchange for Rs 20. The boy was also threatened with dire consequences if he told anybody about the incident.

Based on the FIR filed four days after the incident, a case was registered under Section 377 (carnal intercourse against the order of nature) and 506 (criminal intimidation) of the Indian Penal Code and section 3/4 of the Pocso Act.

The convict appealed against the 10-year jail term sentenced by an additional sessions judge/special Judge, Pocso Act, Jhansi. The Allahabad High Court partly allowed the appeal and sentenced the convict to seven years in jail instead of 10 years.

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