Court Emphasizes Section 42 of POCSO Act Mandates Alternate Punishment, Upholds Conviction but Modifies Sentence After 13 Years of Imprisonment
In a significant judgment dated September 29, 2026, the Jharkhand High Court (Division Bench) in the case of Ajay Kerketta v. State of Jharkhand clarified the application of Section 42 of the Protection of Children from Sexual Offences (POCSO) Act, 2012, holding that when an act constitutes an offence punishable under both the POCSO Act and the Indian Penal Code (IPC), only the greater punishment can be awarded, not both consecutively.
The appellant, Ajay Kerketta, was convicted by the Additional Sessions Judge-cum-Special Judge (POCSO), Simdega, for offences under Section 4 of the POCSO Act (penetrative sexual assault), Section 376(2)(f) IPC (rape by person in position of trust or authority), Section 323 IPC (voluntarily causing hurt), and Section 506 IPC (criminal intimidation). The trial court sentenced him to 10 years' rigorous imprisonment (R.I.) with a fine for both Section 4 of the POCSO Act and Section 376(2)(f) IPC offences, directing these sentences to run consecutively, along with additional sentences for the other IPC charges.
On appeal, the legal counsel for the appellant challenged only the sentencing aspect, submitting that the consecutive sentencing under Section 4 POCSO and Section 376(2)(f) IPC violated Section 42 of the POCSO Act. This provision contains a non-obstante clause mandating an alternate punishment where the same act constitutes offences under both laws, and directs that the offender be punished under the law prescribing the greater punishment.
The State's Special Public Prosecutor conceded the point, agreeing that the sentences should run concurrently.
The Division Bench, comprising Justices Ananda Sen and Pradeep Kumar Srivastava, examined the relevant statutory provisions effective at the time of the offence (January 16, 2014). Section 4 of POCSO prescribed imprisonment of not less than seven years extending to life, whereas Section 376(2)(f) IPC prescribed rigorous imprisonment of not less than ten years extending to life. The court held that the greater punishment was under Section 376(2)(f) IPC.
Consequently, the court set aside the sentence under Section 4 of the POCSO Act but maintained the conviction. The sentences under Sections 376(2)(f), 323, and 506 IPC were upheld. Given that the appellant had already served 13 years in custody during the pendency of the appeal-exceeding the maximum sentence now upheld-the court ordered his immediate release, provided he was not required in any other case.
This judgment underscores the importance of the alternate punishment principle under Section 42 of the POCSO Act, preventing double jeopardy through cumulative sentencing for the same act under overlapping statutes. It also reflects judicial sensitivity towards ensuring just sentencing and appropriate relief after long incarceration.
Bottom Line:
POCSO Act, Section 42 mandates alternate punishment where the same act constitutes an offence under both POCSO Act and IPC; sentence cannot be awarded under both Section 4 of POCSO Act and Section 376(2)(f) IPC to run consecutively, and only the greater punishment is liable to be imposed.
Statutory provision(s):
Protection of Children from Sexual Offences Act, 2012 Section 4, Section 42; Indian Penal Code, 1860 Sections 323, 376(2)(f), 506
Ajay Kerketta v. State of Jharkhand, (Jharkhand)(DB) : Law Finder Doc Id # 2996360
