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
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