Bird’s-eye view of POCSO Act, 2012: In-depth analysis of its provisions and related case laws

Every other day in the newspaper we get to see the news of sexual exploitation of children either in school or at home by people on whom family trusts. So, the then President on June 19, 2012 gave his assent for the Protection of Children from Sexual Offences Act (POCSO Act) , 2012 which was notified in the Gazette of India on June 20, 2012. The Act defines for children below eighteen years of age and different forms of sexual abuse, including penetrative and non-penetrative assault, as well as sexual harassment and pornography. The Act also casts the in the role of protectors during the investigative process. The Act states that the evidence of the should be recorded within a period of thirty days.

Bird's-eye view of POCSO Act, 2012: In-depth analysis of its provisions and related case laws lawescort

Specified Duties of Police in POCSO Rules 2012 :

As per Rule 4(1) when Police receives information of an offence committed or attempted or likely to be committed, it is the duty of the Police Official to provide to the complainant:

  • Name and Designation
  • Address and Telephone number of the officer who supervises him.
As per Rule 4(2) Police Official on duty should :

  • Register an FIR
  • Provide a copy of the FIR to the complainant
  • If the Child needs medical attention arrange for the same immediately without delay
  • Take the child to the Hospital accompanied by or any person the child trusts
  • Ensure sample collection for forensic examination
  • Inform the child and his parents about a support person , legal advice and right to be represented by a lawyer

As per Rule 4(3) when a child is exploited by a person in the family, shared household or in shelter home and it is found out that the child is without parental support or without home the SJPU or Police will produce the child before the Child Welfare Committee within 24 hours with reasons in writing that the child in need of cars and and request for a detailed assessment by the Child Welfare Committee. After making a detailed assessment and as per Rule 4(7) the Child Welfare Committee will provide a support person to the child.

As per Rule 4(9) the Police shall within 24 hours inform the Special Court of the support person provided to the child in writing.

As per Rule 4(11) the Police shall inform the parents , support person, guardian as the case may be about the developments of the case arrest of the accused and details of various applications filed.

As per Rule 4(12) the Police shall inform the parent or support person or guardian the following :

  • Availability of medical Services
  • Procedural steps involved in Criminal Prosecution
  • Availability of victim compensation
  • Arrest of the offender
  • Filing of Charge against the offender
  • Dates of court proceedings
  • Bail or release of the Offender
  • Rendering of verdict
  • Sentence imposed on a an offender

As per Rule 5(3) no medical practitioner shall demand any legal or magisterial requisition or other documentation as a prerequisite to rendering medical care.

It is a Punishable action if Police / Special Juvenile Police Unit fails to report a commission of the offence under this act [Section – 21 – (1)]

If a Police Officer fails to register a case or take cognizance of the offence under Section 326-A, Section 326-B , Section 354,Section 354—B, Section 370,Section 370-A, Section 376,Section 376- A, Section 376-B, Section 376-C,Section 376-D, Section 376-E Indian Penal Code is punishable offence. [Section 166 – A Indian Penal Code]

The Act further makes provisions for :

  • Avoiding the re-victimization of the child at the hands of the judicial system.
  • Special courts that conduct the trial in-camera in child-friendly manner without revealing the identity of the child.
  • A parent or other trusted person present at the time of testifying and can call for assistance from an interpreter, special educator, or other professional while giving evidence.
  • Disposing the case within one year from the date the offence is reported.
  • No child to be detained in the police station in the night for any reason.
  • Police officer to not be in uniform while recording the statement of the child.
  • The statement of the child to be recorded as spoken by the child.
  • Medical examination of the child to be conducted in the presence of the parent of the child or any other person in whom the child has trust or confidence.
  • In case the victim is a girl child, the medical examination shall be conducted by a woman doctor. 13. Frequent breaks for the child during trial. Child not to be called repeatedly to testify.

The Union cabinet cleared the ordinance on POCSO act whereby death penalty will be given to those convicted of raping a child up to 12 years of age. Centre has cleared the criminal law amendment ordinance and POCSO Act is a part of this amendment.

Bird's-eye view of POCSO Act, 2012: In-depth analysis of its provisions and related case laws lawescortThere was massive outrange across the country in 2 separate cases gang rapes took place in Jammu and Kashmir’s Kathua and Uttar Pradesh’s Unnao. Death penalty was given to the child rapist. In case of gang rape of a girl below 12 years, punishment will be life imprisonment or death sentence.

The Act provides for :

  • Punishment against false complaints or untrue information.
  • Strict action against the offender according to the gravity of the offence.
  • Rigorous imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life and also fine as punishment for aggravated penetrative .
  • Punishment to the people who traffic children for sexual purposes.
The Supreme Court bench of Chief Justice Dipak Misra, Justice D. Y. Chandrachud and Justice A. M. Khanwilkar issued directions in respect of the trial and disposal of matters under the Protection of Children from (POCSO) Act of 2012.

The bench was hearing the PIL filed by advocate Alakh Alok Srivastava, drawing the attention of the court to the shocking incident of rape of an eight-month-old girl by her 28-year-old cousin in Shakur Basti of North-West Delhi in January.

Mr. Srivastava submitted to the bench a compilation on the pendency of Cases under the POCSO Act in all states, except the states of Andhra Pradesh and Telangana, based – “The rate of pendency is as high as 89% to 95% according data communicated by the registries to on the of the respective High Courts . Although section 35 of the POCSO Act envisages the conclusion of trial within one year from the date of cognizance, several matters have been pending since 2013.

ASG Pinky Anand informed the bench that the Criminal Law (Amendment) Ordinance of 2018 has been promulgated on April 21 with a view to amend the POCSO Act to stipulate the capital punishment for rape of children below the age of 12 years.

“The ordinance prescribes the punishment the time limit has been provided in the Cr.P.C. itself it is 6 months for appeals and 2 months for the completion of investigation”, responded the ASG.

In view of the same, the bench issued :

  • Instructions shall be issued to the “special courts” to fast-track the disposal of matters by not granting any unnecessary adjournments and following the procedure under the Act of 2012.
  • The High Courts shall constitute a committee of an appropriate number of judges to monitor the progress of trial under the Act.
  • The Director General of Police of the states shall constitute a Special Task Force to assist in investigation and the production of witnesses before the trial courts on the due date
  • Efforts shall be made by the High Courts to provide child friendly courts in accordance with the spirit of the POCSO Act.

A recent case in SC has been filed where a women of biological age 38yrs but mental age 6yrs was raped. The victim’s advocate argues that “failure to consider the mental age will be an attack on the very purpose of act.” SC has reserved the case for judgment and is determined to interpret whether the 2012 act encompasses the mental age or whether only biological age is inclusive in the definition. The POCSO Act , 2012 was championed the Ministry of Women and Child

Punishment of the Offences Covered in Act :

  • Penetrative Sexual Assault (Section 3) on a child — Not less than seven years which may extend to imprisonment for life, and fine (Section 4)
  • Aggravated Penetrative Sexual Assault (Section 5) — Not less than ten years which may extend to imprisonment for life, and fine (Section 6)
  • Sexual Assault (Section 7) i.e. sexual contact without penetration — Not less than three years which may extend to five years, and fine (Section 8)
  • Aggravated Sexual Assault (Section 9) by a person in authority — Not less than five years which may extend to seven years, and fine (Section 10)
  • Sexual Harassment of the Child (Section 11) — Three years and fine (Section 12)
  • Use of Child for Pornographic Purposes (Section 13) — Five years and fine and in the event of subsequent conviction, seven years and fine Section 14 (1)
  • The media has been barred from disclosing the identity of the child without the permission of the Special Court. The punishment for breaching this provision by media may be from six months to one year (Section 23).
  • For speedy trial, the Act provides for the evidence of the child to be recorded within a period of 30 days. Also, the Special Court is to complete the trial within a period of one year, as far as possible (Section 35).
  • 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, 376C, 376D, 376E or section 509 of the Indian Penal Code (45 of 1860),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 under this Act or under the Indian Penal Code as provides for punishment which is greater in degree.”
  • The POCSO Act is only applicable to child survivors and adult offenders. In case two children have sexual relations with each other, or in case a child perpetrates a sexual offence on an adult, the Juvenile Justice (Care and Protection of Children) Act, 2000, will apply.

However, the could not effectively protect the child due to various loopholes like:

  • IPC 375 doesn’t protect male victims or anyone from sexual acts of penetration other than “traditional” peno-vaginal intercourse.
  • IPC 354 lacks a statutory definition of “modesty”. It carries a weak penalty and is a compoundable offence. Further, it does not protect the “modesty” of a male child.
  • In IPC 377, the term “unnatural offences” is not defined. It only applies to victims penetrated by their attacker’s sex act, and is not designed to criminalize sexual abuse of children.
The Act has been criticized as its provisions seem to criminalize consensual sexual intercourse between two people below the age of 18.Government of India is trying its level best to protect the children below the age of 18 from such heinous acts. For this purpose Child sexual abuse laws in India have been enacted as part of the nation’s child protection policies. The Parliament of India passed the ‘Protection of Children Against Sexual Offences Bill, 2011’ regarding child sexual abuse on May 22, 2012 into Act.

The rules formulated by the government in accordance with the law have also been notified on the November 2012 and the law has become ready for implementation. 53% children in India face some form of child sexual abuse.
CREDITS:
Written by- Pallavi Nayyar
                   Amity law School, Noida

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