Section 42 POCSO Act 2012: Alternate Punishment and Section 42A
Section 42 of the Protection of Children from Sexual Offences Act, 2012 addresses conduct that is punishable both under POCSO and under specified provisions of general criminal law or Section 67B of the Information Technology Act, 2000. Its core rule is that the offender is liable to the punishment that is greater in degree. Section 42A separately gives POCSO overriding effect to the extent of inconsistency with another law.
Text of Section 42 of the POCSO Act
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 or section 509 of the Indian Penal Code or section 67B of the Information Technology Act, 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.
How the Alternate Punishment Rule Works
Section 42 deals with overlap between POCSO offences and specified offences under other criminal law. Where the same act or omission constitutes an offence under POCSO as well as an offence listed in Section 42, the court does not use the overlap to reduce the punishment. The statutory direction is to impose liability under the law that provides punishment greater in degree.
The provision begins with a non-obstante clause - "notwithstanding anything contained in any law for the time being in force" - which gives the alternate-punishment rule overriding force for the situation specifically covered by Section 42.
Offences Expressly Referred to in Section 42
| Law | Provisions expressly appearing in Section 42 |
|---|---|
| Indian Penal Code, 1860 | Sections 166A, 354A, 354B, 354C, 354D, 370, 370A, 375, 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB, 376E and 509. |
| Information Technology Act, 2000 | Section 67B, concerning material depicting children in sexually explicit acts and related conduct specified by that provision. |
Current Position After Bharatiya Nyaya Sanhita, 2023
Current law note: The enacted text of Section 42 POCSO continues to contain references to specified sections of the Indian Penal Code, 1860. The Bharatiya Nyaya Sanhita, 2023 came into force on 1 July 2024 and repealed the IPC subject to its repeal and savings framework. For conduct governed by the post-1 July 2024 criminal law, the corresponding provisions of the BNS and the applicable rules governing references to repealed and re-enacted legislation must therefore be considered. For earlier offences and saved proceedings, the relevant IPC provisions may continue to govern according to the applicable savings provisions.
The statutory text of Section 42 should not be silently rewritten by substituting BNS section numbers for the IPC references. The applicable substantive law depends on when the alleged offence occurred and the legal effect of the repeal, re-enactment and savings provisions.
Amendment History of Section 42
Section 42 was substituted by the Criminal Law (Amendment) Act, 2013 with effect from 3 February 2013. The list of IPC offences was subsequently expanded by the Criminal Law (Amendment) Act, 2018 with effect from 21 April 2018. The Protection of Children from Sexual Offences (Amendment) Act, 2019 further amended the provision with effect from 5 August 2019.
Section 42A: POCSO in Addition to Other Laws
42A. Act not in derogation of any other law.
The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force and, in case of any inconsistency, the provisions of this Act shall have overriding effect on the provisions of any such law to the extent of the inconsistency.
Section 42A performs a broader harmonizing function. POCSO ordinarily operates in addition to other applicable laws. However, where there is an inconsistency between POCSO and another law, POCSO prevails to the extent of that inconsistency.
Difference Between Section 42 and Section 42A
| Provision | Purpose |
|---|---|
| Section 42 | Deals specifically with alternate punishment where the same act or omission is punishable under POCSO and specified provisions of other criminal law; the greater punishment applies. |
| Section 42A | States that POCSO is additional to other laws and gives POCSO overriding effect where another law is inconsistent with it, to the extent of the inconsistency. |
Key Points of Section 42 POCSO Act
- Section 42 addresses overlapping offences under POCSO and specified provisions of other criminal law.
- The offender is liable to the punishment that is greater in degree.
- The provision contains a non-obstante clause.
- Section 67B of the Information Technology Act, 2000 is expressly included.
- The enacted POCSO text continues to refer to specified IPC provisions.
- The BNS came into force on 1 July 2024, so current cases require consideration of the applicable BNS, repeal and savings framework.
- Section 42A makes POCSO additional to other laws but gives POCSO overriding effect to the extent of inconsistency.
Official Legal Resources
Authoritative statutory material can be checked on the India Code POCSO Act, the Bharatiya Nyaya Sanhita, 2023 and the India Code portal. Court judgments and case information are available from the Supreme Court of India and eCourts Services.
Updated: 3 October 2026.