Section 42 of THE PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT, 2012
Original Text
42. Alternate punishment.—Where an act or omission constitutes an offence punishable under this Act and also under sections 166A, 354A, 354B, 354C, 354D, 370, 370A, 375, 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB, 376E, section 509 of the Indian Penal Code (45 of 1860) or section 67B of the Information Technology Act, 2000 (21 of 2000), then, notwithstanding anything contained in any law for the time being in force, the offender found guilty of such offence shall be liable to punishment only under this Act or under the Indian Penal Code as provides for punishment which is greater in degree.
Visual Summary
The Conflict
An offender commits a crime that violates both the POCSO Act and other laws (like IPC or IT Act).
The Comparison
The court compares the punishment prescribed under POCSO versus the punishment under the other law.
The Verdict
The offender receives the punishment that is greater in degree (stricter sentence).
Summary
Section 42 acts as a crucial rule for sentencing when a single criminal act falls under multiple laws. In India, a person might be charged under the Indian Penal Code (IPC), the Information Technology Act (for cybercrimes), and the POCSO Act simultaneously for the same incident.
This section ensures that the offender cannot escape with a lighter sentence by pleading to be tried under a more lenient law. It mandates that if there is a difference in the severity of punishment between the POCSO Act and the other applicable laws, the Court must impose the punishment that is greater in degree. This upholds the legislative intent of providing maximum protection to children and ensuring stringent punishment for sexual offenders.
Key Takeaways
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Overriding Effect: The section uses a “non-obstante” clause (“Notwithstanding anything contained…”), meaning it overrides conflicting provisions in other laws regarding sentencing. -
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Applicable Laws: Specifically mentions conflicts with IPC sections (like Rape, Sexual Harassment, Stalking) and IT Act Section 67B (Child Pornography). -
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Principle of Severity: The guiding principle is solely to administer the punishment that is “greater in degree.” -
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Prevents Double Jeopardy: While a person can be charged under multiple acts, they are punished effectively once for the act, but with the highest applicable severity.
Process Flowchart
Practice Questions
Q1. If an offence is punishable under both POCSO and the IPC, which punishment applies according to Section 42?
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Answer: The punishment which is greater in degree.
Q2. Section 42 specifically mentions which other Act besides the Indian Penal Code?
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Answer: The Information Technology Act, 2000 (specifically Section 67B).
Q3. Does Section 42 allow for double punishment (punishment under both acts consecutively)?
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Answer: No. It states the offender is liable to punishment only under the Act that provides the greater punishment, preventing double jeopardy for the same act.
Related Provisions
- Section 42A: Act not in derogation of any other law.
- IPC Section 376: Punishment for rape (often compared with POCSO Section 4/6).
- IT Act Section 67B: Punishment for publishing or transmitting of material depicting children in sexually explicit act.
Conclusion
Section 42 of the POCSO Act, 2012, serves as a vital legal safeguard. By mandating the “Alternative Punishment” rule, it eliminates ambiguity in sentencing when laws overlap. It reflects the legislature’s firm stance that when a child’s safety is violated, the law must respond with the utmost severity available within the legal framework, ensuring that technicalities do not lead to leniency for the perpetrator.