Section 42 POCSO: Alternate punishment

Protection of Children from Sexual Offences Act, 2012

Section 42 POCSO at a Glance

Section 42 POCSO applies when one act or omission is an offence under POCSO and also under listed sections of the Indian Penal Code or section 67B of the Information Technology Act, 2000. The offender is then punished only under POCSO or the Indian Penal Code, whichever provides the greater punishment.

Section 42 POCSO Bare Act 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 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.

Amendments to this section
  • Subs. by Act 13 of 2013, s. 29, for s. 42 (w.e.f. 3-2-2013).
  • Subs. by Act 22 of 2018, s. 25, for "376A, 376C, 376D" (w.e.f. 21-4-2018).
  • Subs. by Act 25 of 2019, s. 10, for "376E or section 509 of the Indian Penal Code (45 of 1860)" (w.e.f. 16-08-2019).

Section 42 POCSO in Simple Words

Section 42 POCSO sets the sentencing rule when a single act or omission is an offence under POCSO and also under specified provisions of the Indian Penal Code or the Information Technology Act, 2000. It applies where an act or omission constitutes an offence punishable under POCSO and also under Sections 166A, 354A, 354B, 354C, 354D, 370, 370A, 375, 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB, 376E, or Section 509 of the Indian Penal Code, or under Section 67B of the Information Technology Act, 2000 (21 of 2000).

Where such an overlap exists, notwithstanding anything contained in any law for the time being in force, the offender found guilty of the offence is liable to punishment only under POCSO or under the Indian Penal Code as provides for punishment which is greater in degree. The Act still refers to the Indian Penal Code, which the Bharatiya Nyaya Sanhita, 2023 (BNS) replaced from 1 July 2024.

Act 13 of 2013 substituted Section 42 POCSO from 3 February 2013. Act 22 of 2018 put "376A, 376AB, 376B, 376C, 376D, 376DA, 376DB" in place of "376A, 376C, 376D" from 21 April 2018. Act 25 of 2019 put "376E, section 509 of the Indian Penal Code or section 67B of the Information Technology Act, 2000 (21 of 2000)" in place of "376E or section 509 of the Indian Penal Code (45 of 1860)" from 16 August 2019.

The official text also prints a State amendment for Arunachal Pradesh (Arunachal Pradesh Act 3 of 2019, s. 26), which puts a different list of Indian Penal Code sections into Section 42 POCSO for that State.

When Section 42 POCSO Applies

  • An act or omission constitutes an offence punishable under POCSO.
  • The same act or omission also constitutes an offence under Sections 166A, 354A, 354B, 354C, 354D, 370, 370A, 375, 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB, 376E, or Section 509 of the Indian Penal Code, or Section 67B of the Information Technology Act, 2000.
  • The offender is found guilty of such offence.
  • Notwithstanding anything contained in any law for the time being in force, the offender is liable to punishment only under POCSO or under the Indian Penal Code, whichever provides for punishment that is greater in degree.

Example of Section 42 POCSO

In a trial before the Special Court in Lucknow, Arif is found guilty of an offence against a 15-year-old student. The act committed by Arif constitutes an offence punishable under POCSO and also under Section 376 of the Indian Penal Code. Under Section 42 POCSO, notwithstanding anything in any other law in force, Arif is not sentenced under the provision carrying the lesser punishment. Instead, the Special Court sentences Arif only under POCSO or under the Indian Penal Code, according to whichever of the two provides for punishment that is greater in degree.

FAQs on Section 42 POCSO

What is Section 42 POCSO?▼

Section 42 POCSO governs punishment when an act or omission constitutes an offence punishable under POCSO and also under listed sections of the Indian Penal Code or Section 67B of the Information Technology Act, 2000. It provides that, notwithstanding anything in any other law in force, the offender found guilty is liable to punishment only under POCSO or under the Indian Penal Code, whichever provides for punishment that is greater in degree.

Which sections of the Indian Penal Code are listed in Section 42 POCSO?▼

Sections 166A, 354A, 354B, 354C, 354D, 370, 370A, 375, 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB, 376E, and Section 509 of the Indian Penal Code are listed in Section 42 POCSO. The Act still refers to the Indian Penal Code, which the Bharatiya Nyaya Sanhita, 2023 (BNS) replaced from 1 July 2024.

Does Section 42 POCSO cover any offence under the Information Technology Act, 2000?▼

Yes. Section 42 POCSO lists Section 67B of the Information Technology Act, 2000 (21 of 2000) alongside the listed sections of the Indian Penal Code.

Which punishment applies when an offender is found guilty of an overlapping offence covered by Section 42 POCSO?▼

The punishment that is greater in degree applies. Under Section 42 POCSO, the offender found guilty is liable to punishment only under POCSO or under the Indian Penal Code as provides for the greater punishment.

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Disclaimer: This is for informational purposes only. Always consult a qualified advocate for legal advice.

Sources: Bare Act Text, Protection of Children from Sexual Offences Act, 2012 (India Code) ·