POCSO ACT: AS IT EVOLVED

 

POCSO ACT: As it evolved

 

Prevention of Children from Sexual offences (POCSO Act 2012 was enacted for safeguarding children from paedophiles and sexual offenders and procedure is laid down and rules framed in that regard. The nuances of law as also the concerns raised of late and more particularly, owing to acquittal of an accused from the charges under POCSO by a ruling that skin to skin contact shall be imperative for making out a case within the purview of Section 8 of the Protection of Children from Sexual Assault (POCSO) Act, which stipulates a minimum punishment of Three (3) years.

There has been considerable debate and discussion as regards the judgment as referred to above.  The ruling by Nagpur Bench of Bombay High Court, in a matter captioned as Satish Ragde Vs. The State of Maharashtra (Criminal Appeal No. 161 of 2020) (Criminal Appeal No. 161 of 2020). The concern has been generic and it is all over. The Attorney General has raised the issue before hon’ble Supreme Court and even National Commission for Women has also preferred appeal against the judgment, besides, State of Maharashtra, also have preferred appeal. The present article shall delve the Act, rules framed thereunder as well as judicial precedents in is perspective, apart from wholesome discussion on POCSO as it evolved.

Before proceeding further, the aforesaid ruling of Bombay High Court may be worth further analysis. The high court has held that groping a minor’s breast without skin-to-skin contact cannot be construed as sexual harassment as described under Section 7 of  POCSO Act. It is to be noted that the 12 year girl was the victim and her mother had registered a case under the POSCO Act. The hon’ble Bombay High Court had set aside the judgment of Sessions Court, which had imposed imprisonment of Three (3) years on the offenders for committing offence against 12 years old girl child. It was held by Nagpur Bench of Bombay High Court that touching a minor's breast shall not be akin to sexual assault, unless, the accused removed the child's top worn. The Court has held that sexual harassment under POSCO Act may have been construed, if done with sexual intent and includes touching the child's private parts or having the child touch the accused's private organ.

The POCSO Act took into consideration the standards prescribed by the Convention on the Rights of the Child adopted by the General Assembly of the United Nations to which the Indian government acceded to on December 11, 1992. The interpretation of the legislation is flawed since the “physical contact” does not necessarily imply skin to skin touch. The hon’ble judge, thus, ostensibly have relied upon a flawed interpretation of the Act and the impact of that shall be far reaching. If this flawed interpretation is allowed to subsist, the entire Act may be redundant. It is in this backdrop, that the Attorney General had requested the Supreme Court to take Suo moto cognizance of the matter. The hon’ble Supreme Court has recorded the fact that the Attorney General had brought to court’s notice judgment of the Bombay High Court, Nagpur Bench dated January 19, 2021, in which the High Court has acquitted the accused under section 8 of POCSO Act on the ground that the accused had no sexual intent in committing the offence under POCSO, because, there was no direct physical contact i.e. skin to skin. The Attorney General submitted that order is unprecedented and likely to set a dangerous precedent. The hon’ble Supreme Court has stayed the acquittal of the accused.

The decision, it appears may have smeared the legislative intent of the Act which is to prescribe enhanced protection to minors for their healthy growth. The Article 21 of Constitution of India which is Right to life and liberty and without dignity such a right shall be rendered meaningless and hence, such a legislation is in place. By virtue of the judgment of Bombay High Court, the very objective appears to have been relegated and the interpretation of “Sexual Assault” by hon’ble high Court is baffling. The sexual crime against child shall entail no leniency, else, the very object of enacting POCSO to punish sexual offenders shall be negated. The narrow interpretation of the law, in the context of above has thus shocked many.

OBJECT OF POCSO

The object of POCSO has been clear and distinct and even if there could be some overlapping between Indian Penal Code and POCSO Act, the fact remains that POCSOO Act is enacted to cater to a situation and is gender neutral.

The POCSO Act seeks to cover all children below the age of 18 years. It is a gender neutral Act and prescribes child friendly processes for reporting, recording and trial as the best interest of child is a priority. The burden of proof shall lie on accused in cases of penetrative sexual assault, sexual assault and aggravated sexual assault. The reporting of child abuse cases is also made mandatory.

 

Why the need of enactment of law such as POCSO was felt is a moot point. Prior to 2012, for instance, if a male child was sexually assaulted, and if the act was penetrative, the act could fall within the purview of Section 377 of the Indian Penal Code that criminalizes unnatural sex. In the prevailing situation a minor male child could not report a case of non-penetrative sexual assault under the IPC. The absence of a gender-neutral law was thus felt with the avowed object to protect children from sexual offences, and then came POCSO Act, 2012. 

The preamble of the POCSO Act sets out in no uncertain terms the object. It begins with –

“An Act to protect children from offences of sexual assault, sexual harassment and pornography and provide for establishment of Special Courts for trial of such offences…”.

Some unique features of the POCSO Act are:

(i)        It is a gender-neutral legislation – it only refers to the perpetrator as “person”, and the victim as “child”  who is below the age of 18.

 It also deals with:  –

·       Sexual Assault and includes Penetrative Sexual Assault (if the sex organ or any object is inserted into any part of the child’s body).

·        Aggravated Penetrative Sexual Assault (when a police officer/ member of the armed forces/ public servant/ staff of hospital/ staff of educational institution commits sexual assault on a child).

·        Sexual Harassment i.e harassment through words or gestures including showing porn to a child porn or making a child exhibit any part of their body).

·        Significantly, use of the words “rape”, “eve-teasing”, or “outraging modesty” are not in vogue in the Act, unlike the Indian Penal Code. This legislation has been created with the intent to ensure that technicalities and descriptions does not come in the way of implementation of the provisions of the Act.

·        A special court and a special public prosecutor has to deal with offences under the POCSO Act.           

 

Special Courts (Section 26)

For the purpose of speedy trial, State Government shall in consultation with the Chief Justice of the High Court, by notification in the Official Gazette, appoint a Special Court i.e. Sessions Court in each district. If any person attempts to commit an offence under the POCSO Act during the provision of Sessions court, protection of Child Rights Act, 2005 or any rule applicable at that time, then such Court shall be deemed to be a Special Court under this section.

Special Court formed under this Act has the right to decide on cases which involves online exploitation of a child through any act, or conduct or manner.

 

Power & Procedure of Special Courts (Section 33)

 

1.         Any Special Court can take the cognizance of any offence, upon receiving a complaint of facts which constitute such offence, or on police report.

2.         The Special Public Prosecutor or any advocate appointed by accused, shall submit the questions to the Special Court that need to be asked to the child during examination-in-chief, cross-examination or re-examination, which the Special Court shall in turn put those questions to the child.

3.         If Special Court finds it necessary, then, it can permit frequent breaks to the child during trial.

4.         Special Court shall create a child-friendly atmosphere in the court by allowing any member, care taker, friend or relative, in which the child has trust or confidence.

5.         Special Court shall ensure that the child is not called repeatedly in the court.

6.         Special court shall not permit aggressive questioning or character assassination of child and shall ensure the dignity of child is maintained throughout the trial.

7.         Special Court shall ensure that at no time during the trial identity of child is disclosed.

8.         If found necessary or in best interest of child, Special Court shall give the permission for revealing the identity of child Explanation: child’s identity shall include the child’s family, school, relatives, neighborhood or any other information through which the identity of child can be found.

9.         Special Court can also order to provide compensation to the child for physical and mental injuries caused for the immediate rehabilitation of child.

10.       Special Court, for the purpose of trial, has all the powers of Sessions Court, and can also ask for the reason of delay in trial.

REQUISITES OF COMPLAINT

The report or complaint about child abuse could be filed, If any person, including child, has any doubt that such offence can happen or has the knowledge that such offence has been committed, can give the information to the following authorities:

i.                 Special Juvenile Police Unit constituted in all police stations;

ii.               Local police

iii.             The non- reporting of offence or filing a false report shall also be liable for punishment.

iv.             The report has to be written and entry of the report in the register of police is a must. In case, it is field by a child ,m then it should be registered in simple language, to enable the child to understand and in case a child does not understand that language, then translator should be used

Not reporting any offence committed under the provisions of this Act,  Shall be punished with an imprisonment of upto six months and/or with fine.

With a view to ensure child’s complete development and respect, during all the steps of legal procedure child’s information needs to be kept confidential. It is necessary to:

i. Not to make any report or present comments related to child which can violate the confidentiality of child’s information. Media shall not disclose any information without any authentic proof.

ii. If through media’s report, no information of child shall be disclosed like name, address, photograph, family details, neighbourhood or any other particulars; until the capable court haven’t released any order permitting the same.

 

In case, the concerned investigating agency understands that the child of sexual abuse need care and protection, then the reasons should be recorded and within the limits of 24 hours police is required to arrange care and protection in a manner necessary.

The Special juvenile Police unit or any local police shall inform about the cases to Child Welfare Committee and to the Special Court or to the Sessions Court, in case the Special Court have not been specifically provided for..

If any person inserts or penetrates any private body part or any object in child’s body or makes the child to do so with him/her, then the same may be treated as penetrative sexual assault and prescribed punished shall be a minimum Ten (10) years which may extend upto imprisonment for life, and shall also be liable to fine. If penetrative sexual assault is done on child below 16 years than the punishment will be minimum 20 years and can extend to life imprisonment and shall also be liable to fine.

 

In an aggravated penetrative sexual assault, minimum terms of imprisonment shall be 20 years and can also be saddled with life imprisonment or even death penalty, besides fine. The fine paid is to be used to meet medical and rehabilitation expenses of victim.

STATEMENT OF CHILD

Child’s statement shall be recorded at the residence of child or at place where child is comfortable in presence of a woman officer not below the rank of sub-inspector.

While recording the statement of child, police officer shall not be in uniform.

The police officer investigating the case shall make sure that the child at no point comes in contact with the accused.

Under no circumstances the child shall be detained in police station in the night.

Police officer shall ensure that child’s identity is protected from public and media, unless otherwise directed by the Special Court in the interest of child.

Recording of statement of child by police (Section 24)

According to section 74 of The Juvenile Justice (Care and Protection) Act, 2015, (1) No report in any newspaper, magazine, news-sheet or audio-visual media or other forms of communication regarding any inquiry or investigation or judicial procedure, shall disclose the name, address or school or any other particular, which may lead to the identification of a child in conflict with law or a child in need of care and protection or a child victim or witness of a crime, involved in such matter, under any other law for the time being in force, nor shall the picture of any such child be published: Provided that for reasons to be recorded in writing, the Board or Committee, as the case may be, holding the inquiry may permit such disclosure, if in its opinion such disclosure is in the best interest of the child.

(2) The Police shall not disclose any record of the child for the purpose of character certificate or otherwise in cases where the case has been closed or disposed of.

(3) Any person contravening the provisions of sub-section (1) shall be punishable with imprisonment for a term which may extend to six months or fine which may extend to Two Lakh rupees or both.

i. If the victim of offence is a girl child, then the medical examination shall be conducted by a woman Doctor.

ii. Child’s medical examination shall be conducted in the presence of parents or guardian, and if they are not present, then in presence of any other person in whom the child has trust or confidence

iii. If during medical examination of child, his/her parents or any other person whom the child trust cannot be present, for any reason, then the medical examination shall be conducted in presence of a woman nominated by the head of medical institution.

Presumption as to certain offences (Section 29)

Estimation of certain offences

If any person is facing criminal charges related to sexual offence on a child or abetting others to commit sexual offence on that child, then the Special Court shall believe that the person has committed the offence, unless proven otherwise.

Presumption of culpable mental state (Section 30)

Special Court shall believe that the offender has the knowledge of offence and the person has the intention and motive of committing the offence, unless it is proven otherwise, that the person mental state was different.

Special Public Prosecutors (Section 32)

i. To conduct cases of state government, in every court a Special Public Prosecutor shall be appointed.

ii. A person shall be eligible as a Special Public Prosecutor only when he/she had been in practice as an advocate for not less than 7 years.

 

Procedure and Powers of Special Courts (Section 33)

1. Any Special Court can take the cognizance of any offence, upon receiving a complaint of facts which constitute such offence, or on police report.

2. The Special Public Prosecutor or any advocate appointed by accused, shall submit the questions to the Special Court that need to be asked to the child during examination-in-chief, cross-examination or re-examination, which the Special Court shall in turn put those questions to the child.

3. If Special Court finds it necessary, then, it can permit frequent breaks to the child during trial.

4. Special Court shall create a child-friendly atmosphere in the court by allowing any member, care taker, friend or relative, in which the child has trust or confidence.

5. Special Court shall ensure that the child is not called repeatedly in the court.

6. Special court shall not permit aggressive questioning or character assassination of child and shall ensure the dignity of child is maintained throughout the trial.

7. Special Court shall ensure that at no time during the trial identity of child is disclosed.

8. If found necessary or in best interest of child, Special Court shall give the permission for revealing the identity of child.

Explanation: child’s identity shall include the child’s family, school, relatives, neighborhood or any other information through which the identity of child can be found.

9. Special Court can also order to provide compensation to the child for physical and mental injuries caused for the immediate rehabilitation of child.

10. Special Court, for the purpose of trial, has all the powers of Sessions Court, and can also ask for the reason of delay in trial

 

RECORDING OF EVIDENCE (Section 35)

Period for recording of evidence of child and disposal of case:

i. Evidence of child shall be recorded by the Special Court within a period of 30 days of cognizance of offence;

ii. Special Court shall complete the trial, as far as possible, within a period of one year from the date of cognizance of the offence Child not to see accused at the time of testifying (Section 36);

iii. Special Court shall ensure that the child is not exposed to the accused while giving statement, and shall also ensure that the accused is in a position to hear the child’s statement and communicate with his/her advocate;

iv. Special Court shall record the statement of child through video conferencing or by using single visibility mirrors or curtains Trials to be conducted in camera (Section 37);

v. Special Court shall try cases in camera where child’s mother, father or any other person on whom the child has trust or confidence is present;

 

Monitoring of the implementation of the Act

The Act shall be properly followed, to ensure this National Child Rights Protection Commission and State commission for Protection of Child Rights is formed. For the protection of child rights, National Child Rights Protection Commission (N.C.P.C.R.) was established during March 2007 under Protection of Child Rights Act, 2005.

HELPLINE:

As regards other measures, what is of paramount importance is that to report a child abuse, calls is to be made on a dedicated number 1098, Or BACHPAN BACHAO ANDOLAN HELPLINE NUMBER 18001027222

 

APPOINTMENT OF SUPPORT PERSON

The POCSO Rules, 4(7) ordains that the Child Welfare Committee may provide a support person with a view to aid or render assistance to child through the process of investigation and it is the responsibility of the police to keep the support person informed about the developments including the arrest of the accused, the applications filed and other court proceedings. It is a matter of concern, though, that most of the orders of the special court does not reflect the appointment of a support person. The role of support person cannot be overstated, as the support person portrays the circumstances of a child its family situation, vulnerabilities etc to the Special court designated for this purpose to make an apt decision.

Allahabad High Court in a matter captioned as Junaid Vs State Of Uttar Pradesh And Another, CRIMINAL MISC. BAIL APPLICATION No. - 46998 of 2020 | 09-07-2021 relating to POCSO Act ,2012, has observed that the court has to correlate and balance the mandate of statutory rights of the victim, with the imperative of constitutional liberties of the accused, and the silences of the legislature have to be interpreted by the courts.

Relating to Bail application and its time bound disposal, in the above context, therefore, following directions were issued:

The directions are as under:

(i)              Notice of bail application by the local police or Special Juvenile Police Unit (SJPU) upon the Child Welfare Committee (CWC) should be served within three days from the date of service of notice of bail application upon the office of the Government Advocate at the High Court. 

(ii)         The time period for the CWC to create assessment report and identify the guardian whom the child trusts or to nominate a support person best suited to protect the best interests of the child and receive bail notice on its behalf, should be fixed within 3 days from date of lodging of FIR, the Bench said.

(iii)          The District Legal Services Authority as well as the High Court Legal Services Committee should provide legal aid within five days from receipt of notice of bail application, before the hearing of the bail application in the High Court and District Court respectively. 

(iv)          the time period for maturation of a bail application under POCSO remains undefined, still, the authorities are obligated to perform their duties in a reasonable time frame. 

(v)            The High court in administrative side may consider the feasibility of creating specific rules for bail maturation or the time period for serving advance notice upon the Government Advocate and other connected issues.

(vi)          The victim/child and its parents are not joined as parties to bail applications by name, other personal details of the child should also not be stated in the bail application. 

(vii)        The High Court has laid down a timeline for maturation of a bail application in POCSO cases, stating that information of crime is to be given by local police/SJPU to the Child Welfare Committee within 24 hours after report of crime u/s 19(6) of the POCSO Act. 

(viii)      The time period for the CWC to create assessment report and identify the guardian, whom the child trusts or to nominate a support person best suited to protect the best interests of the child and receive bail notice on its behalf, should be fixed within 3 days from date of lodging of FIR.

(ix)           The notice of bail application by the local police or SJPU upon CWC should be served within three days from the date of service of notice of bail application upon the office of the Government Advocate at the High Court. 

(x)             That District Legal Services Authority as well as High Court Legal Services Committee should provide legal aid within five days from receipt of notice of bail application, before the hearing of the bail application in the High Court and District Court respectively. 

(xi)           That the timelines of duties have to be strictly adhered to by the respective authorities and failure of its compliance will be proceeded in accordance with the law. 

(xii)         That the Court directed that the DGP, UP Police will create a framework and standard operating procedures for the State, and the District Magistrate of the concerned district will ensure that the reports as directed in the order are produced by the CWC before the Court when the bail application is placed in Court and that action is taken against those who default. 

 

The judgment rendered by hon’ble Supreme Court in APARNA BHAT & ORS.VERSUS STATE OF MADHYA PRADESH & ANR is worth analysis.

 

(a) Bail conditions should not mandate, require or permit contact between the accused and the victim. Such conditions should seek to protect the complainant from any further harassment by the accused;

(b) Where circumstances exist for the court to believe that there might be a potential threat of harassment of the victim, or upon apprehension expressed, after calling for reports from the police, the nature of protection shall be separately considered and appropriate order made, in addition to a direction to the accused not to make any contact with the victim;

(c) In all cases where bail is granted, the complainant should immediately be informed that the accused has been granted bail and copy of the bail order made over to him/her within two days;

(d) Bail conditions and orders should avoid reflecting stereotypical or patriarchal notions about women and their place in society, and must strictly be in accordance with the requirements of the Cr. PC. In other words, discussion about the dress, behavior, or past “conduct” or “morals” of the prosecutrix, should not enter the verdict granting bail;

(e) The courts while adjudicating cases involving gender related crimes, should not suggest or entertain any notions (or encourage any steps) towards compromises between the prosecutrix and the accused to get married, suggest or mandate mediation between the accused and the survivor, or any form of compromise as it is beyond their powers and jurisdiction;

(f) Sensitivity should be displayed at all times by judges, who should ensure that there is no traumatization of the prosecutrix, during the proceedings, or anything said during the arguments, and

(g) Judges especially should not use any words, spoken or written, that would undermine or shake the confidence of the survivor in the fairness or impartiality of the court.

Further, courts should desist from expressing any stereotype opinion, in words spoken during proceedings, or in the course of a judicial order, to the effect that (i) women are physically weak and need protection; (ii) women are incapable of or cannot take decisions on their own; (iii) men are the “head” of the household and should take all the decisions relating to family; (iv) women should be submissive and obedient according to our culture; (v) “good” women are sexually chaste; (vi) motherhood is the duty and role of every woman, and assumptions to the effect that she wants to be a mother; (vii) women should be the ones in charge of their  children, their upbringing and care; (viii) being alone at night or wearing certain clothes make women responsible for being attacked; (ix) a woman consuming alcohol, smoking, etc. may justify unwelcome advances by men or “has asked for it”; (x) women are emotional and often overreact or dramatize events, hence it is necessary to corroborate their testimony; (xi) testimonial evidence provided by women who are sexually active may be suspected when assessing “consent” in sexual offence cases; and (xii) lack of evidence of physical harm in sexual offence case leads to an inference of consent by the woman.

 

As far as the training and sensitization of judges and lawyers, including public prosecutors goes, the Supreme Court mandates that a module on gender sensitization be included, as part of the foundational training of every judge. This module must aim at imparting techniques for judges to be more sensitive in hearing and deciding cases of sexual assault, and eliminating entrenched social bias, especially misogyny. The module should also emphasize the prominent role that judges are expected to play in society, as role models and thought leaders, in promoting equality and ensuring fairness, safety and security to all women who allege the perpetration of sexual offences against them. Equally, the use of language and appropriate words and phrases should be emphasized as part of this training. In paragraph no. 47 of the judgment, the hon’ble Supreme Court has directed that:

The National Judicial Academy is hereby requested to devise, speedily, the necessary inputs which have to be made part of the training of young judges, as well as form part of judges’ continuing education with respect to gender sensitization, with adequate awareness programs regarding stereotyping and unconscious biases that can creep into judicial reasoning. The syllabi and content of such courses shall be framed after necessary consultation with sociologists and teachers in psychology, gender studies or other relevant fields, preferably within three months. The course should emphasize upon the relevant factors to be considered, and importantly, what should be avoided during court hearings and never enter judicial reasoning. Public Prosecutors and Standing Counsel too should undergo mandatory training in this regard. The training program, its content and duration shall be developed by the National Judicial Academy, in consultation with State academies. The course should contain topics such as appropriate court-examination and conduct and what is to be avoided”.

 

The hon’ble Supreme Court has also called upon the Bar Council of India (BCI) to consult subject experts and circulate a paper for discussion with law faculties and colleges/universities in regard to courses that should be taught at the undergraduate level, in the LL.B program. The BCI shall also require topics on sexual offences and gender sensitization to be mandatorily included in the syllabus for the All India Bar Examination.

The hon’ble Supreme Court has further opined that each High Court should, with the help of relevant experts, formulate a module on judicial sensitivity to sexual offences, to be tested in the Judicial Services Examination.

CONCLUSION

What is a grim reminder is that despite the claim of human, being a unique race in its wisdom and expertise, as also the fact that the human is a classical example of social animal and evolved race, but when crime in general and against minor in particular are noticed and the enactment such as POCSO was enacted is an iteration that society has not taught enough at least to such class of human. The extra- ordinary situation necessitates extra-ordinary measures, alright, and therefore, the POCSO Act 2012 is enacted. However, a great deal shall depend upon the enforcement agencies and courts of law, the pleaders, judges, Child Welfare Committee constituted in this regard and at last but not the least, collective outlook of society to gradually weed out the crime against the child.

                                                                        Anil K Khaware

                                                                        Founder & Sr Associate

Societylawandjustice.com