Crime Against Children In Light of POCSO ACT , 2012

By Deeya

Overview

With the intent to effectively address the evil of sexual exploitation and sexual abuse of children, the Protection Of Children from Sexual Offences Act (POCSO) was passed by the parliament in the year 2012. this act specifically talked about the protection of childrens from unnatural offences that occur in the society nowdays very rapidly. india has one of the largest populations of children in the world – Census data from 2011 shows that India has a population of 472 million children below the age of eighteen. Protection of children by the state is guaranteed to Indian citizens by an expansive reading of Article 21 of the Constitution of India and also mandated given India’s status as a signatory to the UN Convention on the Rights of the Child.

This article specifically talked about what the govt. had done to safeguard the rights of childres and protect them from evils of the society which create difficulties for specially girl child to even go outside. the govt had made reforms regarding it and passed the POSCO ACT in the year of 2012.

Also this article gives you a brief analysis of what acts are applied in the court of law before the enactment of posco act and some landmark judgement related to posco act will be discuss further.

POCSO Act, 2012: Introduction

“But no matter how much evil I see, I think it’s important for everyone to understand that there is much more light than darkness.” — Robert Uttaro

The POSCO ACT, 2012 as we discussed earlier was made to protect children from offences of sexual assault, sexual harassment and pornography and provide for establishment of Special Courts for trial of such offences and for matters connected therewith or incidental thereto. The POCSO Act(2019) Amendment seeks to provide for rigid punishment to those engaging in sexual crimes against children, death penalty in cases of aggravated sexual assault, besides imposing fines and imprisonment.

The Protection of Children from Sexual Offences Act, 2012 mentions 12 key principles which are to be followed by anyone, including the State Governments, the Child Welfare Committee, the Police, the Special Courts, NGOs or any other professional present during the trial and assisting the child during the trial. These include:
right to life and survive, right to compensation, right to safety, right to privacy, best interest of child, right to treated with dignity and compassion, right to be protected from discrimination, right to be informed, right to be special preventive measure, right to effective assistance, right to be protected from hardship during judicial activity and the last right to hear and express his view.

Historical Background

Before the introduction of the POCSO Act, 2012, the sole legislation in India that aimed at protecting the rights of a child was the Goa’s Children’s Act, 2003 and Rules, 2004. Under the Indian Penal Code, 1860, child sexual abuse accounted for an offence under Sections 375, 354 and 377. with the growing of sexual abuse in India there is need of laws related to abuse of children in country. With the efforts of multifarious NGOs, activists and the Ministry of Women and Child Development, POCSO Act, 2012 was enforced on 14th November 2012. In India, POCSO Act, 2012 is not the only legislation which deals with child sexual abuse cases. The POCSO Act cannot be called a complete code in itself and provisions of the Code of Criminal Procedure, 1973, Indian Penal Code, 1860, Juvenile Justice Act, and Information Technology Act, 2000 overlap and encapsulate the procedure and specify the offences.

This expanded the criminal penalty for aggravated penetrative Sexual assault to include punishment for abuse by a person in position of trust or authority including public servants, police, armed forces, and management or staff of an educational or religious institution. the main aim of this act is to provide protection to children’s at every stage from judicial activities.

IMPORTACE, As we all know that sexual abuse is increases in India with a high rate so with the increase of crime in society the importance of laws related to that crime is also increases.

POCSO Act, 2012 was enacted when the cases of sexual abuse against children were rising. It contains provisions regarding the protection of children from sexual assault and pornography and lays down the procedure for the implementation of these laws.
The Act has been instrumental in providing a justice mechanism for the victims of sexual abuse and has highlighted the significance of child rights and safety. The reporting of cases of child sexual abuse has also surged as a consequence of awareness.
The Act covers punishment for both non-penetrative sexual assault and aggravated penetrative sexual assault.
The Act calls for mandatory reporting of sexual offences. A false complaint with intent to defame a person is punishable under the Act.

Salient Features of POCSO Act, 2012

Sexual abuse cases happen behind closed doors and the elders attempt to hide these incidents due to the stigma that is attached to these crimes. Consequently, for the proper implementation of the POCSO Act, reporting of these incidents by the third parties who have the knowledge or apprehension of such offences, has been made mandatory under Sections 19 to 22 of the POCSO Act. These laws have been made on the basis of assumptions that children are vulnerable and helpless and society has the duty to protect the interests of the children.
The theory of last seen is applied in the child sexual abuse trials. According to this theory, the person who is last seen with the victim is assumed to be the perpetrator of the offence when the time gap between the point when they were last seen alive is so minute that it is not possible that any other person could have committed the crime.
Child-friendly investigation and trial under Sections 24, 26 and 33 of the POCSO Act lay down the procedure of investigation and trial which has been formulated keeping in mind the needs of a child. The following points are taken into consideration while investigating any crime under POCSO Act.
To monitor the implementation of the Act, the National Commission for the Protection of Child Rights (NCPCR) and State Commissions for the Protection of Child Rights (SCPCRs) have been made the designated authority. Both are statutory bodies.
Section 42 A of the Act provides that in case of inconsistency with provisions of any other law, the POCSO Act shall override such provisions.

Punishment Under POCSO Act, 2012

There are some important sections of POSCO ACT which delas with the punishment for those who committed a crime such as section 4, 6,8,10,12,14,15 etc.

SECTION 4 OF POSCO ACT, deals with Penetrative sexual assault on a child of 16 to 18 years of age and the punishment of that offence is minimum imprisonment of 10 years which may extend to imprisonment for life plus fine.
SECTION 6 OF POSCO ACT, deals with aggravated penetrative sexual assault and the punishment of that offence is minimum rigorous imprisonment of 20 years which may extend to imprisonment for the remainder of natural life plus fine or death.
SECTION 8 OF POSCO ACT, deals with sexual assult and the punishment related to that offence is 3 to 5 years imprisonment plus fine.
SECTION 10 OF POSCO ACT, deals with aggrevate seual assult and the punishment related to that offence is 5 to 7 years imprisonment plus fine.
SECTION 14 [1] OF POSCO ACT, deals with the use of a child for pornography and the punishement related to that offence is first conviction- imprisonment extending up to 5 years second or further convictions- imprisonment extending up to 7 years plus fine.
SECTION 14 [2] OF POSCO ACT, deals with use of a child for pornography while committing an offence under Section 3 and the punishment is minimum imprisonment of 10 years extending up to imprisonment for life plus fine
SECTION 14[3] OF POSCO ACT, deals with use of a child for pornography while committing an offence under Section 5 and punishment for that is rigorous imprisonment for life plus fine.

Jurisdiction of POCSO Act, 2012

Section 28 of the POCSO Act lays down the provision regarding the designation of special courts. It says that the special courts also have the jurisdiction to try offences under Section 67B of the Information Technology Act, 2000. Section 33 gives the power of a Court of Session to the special courts. Furthermore, Section 42A specifies that in case of any inconsistency, the provisions of the POCSO Act would override the provisions of any other law. In the case of M. Kanna v. State (2018), there were discrepancies in the professional duty of the defence counsel who violated the right to a fair trial of the accused. The Madras High Court after making note of this fact remanded the case back to the trial court to provide the opportunity to the accused to cross-examine the witness. Also, the case was transferred from the trial court in which it was pending as it was presided over by the same judge.

Burden of Proof Under POCSO Act, 2012

The POCSO Act is to reduce the burden on the prosecution to prove certain things by introducing presumptions. Section 29 and 30 of the POCSO Act lay down the provision with respect to the burden of proof. According to Section 29, the person who is prosecuted for the commission of the child sexual abuse offences is presumed to have committed or abetted or attempted to commit such offence. The main issue that arises while implementing this provision is that the nature of presumption that has to be applied is at the whim and fancy of the courts. Also, this provision has been challenged to be unconstitutional in a number of cases as it intervenes with the right to be presumed innocent, right against self-incrimination and the right to remain silent.

In Imran Shamim Khan v. State of Maharashtra (2019), a child told her grandmother that she was sexually abused and her medical examination confirmed this. However, her mother told her to ignore it. The statements of the child victim and her grandmother were recorded before the magistrate. The Bombay High Court made an important observation in this case by stating that, “even if a minor in a sexual assault case turns hostile under the POCSO Act, the onus is on the accused to establish the innocence. It is easy to say that the prosecution failed to prove the guilt of the accused. But in a case like this, the judicial approach has to see justice is imparted to the victim too”.

Section 30 provides the opportunity to the accused to prove his/her innocence thereby making the presumption under Section 29 rebuttable. In the case of S. Suresh v. State of Tamil Nadu (2017), the accused was convicted under Section 6 of the POCSO Act and he had not rebutted the presumption of Section 29. Therefore, the Court observed that the rebuttable presumption also proves the guilt of the accused.

Sunderlal v. The State of M.P. and Ors. (2017)- This is an important judicial pronouncement where the father of the minor rape victim filed a petition under Article 226 of the Constitution of India, 1950 to get permission to terminate her pregnancy. The Madhya Pradesh High Court paid emphasis on the report according to which the length of the pregnancy was 20 weeks. Following directives were issued by the High Court in this regard:

In the case of a minor, the consent of the petitioner is enough for the termination of pregnancy and it is not essential to obtain the consent of the minor victim.
The right to termination of pregnancy flows from Article 21 of the Indian Constitution.
A committee constituted of 3 registered medical practitioners has to form an opinion regarding the termination of pregnancy in accordance with the Medical Termination of Pregnancy Act, 1971.
If the Committee gives permission to terminate the pregnancy, then all the services and assistance are to be provided to the victim by the Respondent i.e. State.
In case of termination of the pregnancy, the DNA sample of the foetus is to be kept in a sealed cover in accordance with the procedure.

Shortcomings of the POCSO Act, 2012

False complaints by children are not punishable: Section 22 of the POCSO Act provides for the punishment to the persons who file a false complaint in order to humiliate, extort, threaten or defame another person. However, a child is exempted from any such punishment which is a loophole as many people take advantage of this exemption and misuse this provision.
Pending cases: the POCSO Act specifies that “the Special Court shall complete the trial, as far as possible, within a period of one year from the date of taking cognizance of the offence” under Section 35(2) but the number of pending cases is rising which is creating a huge problem in making the justice mechanism effective.
Two-finger test is administered on the victims of sexual assault while conducting their medical examination. If the vagina of a girl is capable of allowing two fingers to move freely then it is inferred that the victim has been subjected to repeated sexual intercourse. This test is conducted on the minor girls against whom any offence under the POCSO Act is committed. Although the government banned this test in the year 2012, it is still administered.

Conclusion

The need of the hour is to sensitize the public regarding child sexual abuse so that there is no reluctance in reporting these crimes. Moreover, the investigating agencies should be well trained and professionals such as medical practitioners involved in the stages of investigation and trial should be efficient so as to leave any scope of negligence on their part. the POCSO Act already makes the procedure child friendly and this approach should be followed by the judicial officers, magistrates, and police officers so that the child victims could repose trust in them. POCSO ACT, 2012 or Protection of Child from Sexual Offences Act, 2012, is an act that protects a child from being exploited sexually. It covers major sexual offences related to the child. The POCSO Act Punishments are more stringent, and the law is more severe than any other legislation. However, this act also set aside the principle of Innocent till proven guilty, as, under this act, a person is seen as a culprit and not as normal. As this act is related to the child and protects the child from being sexually exploited, the act has recognized all the major acts as offences. The POCSO act Punishment can be up to life imprisonment for the offender according to the severity of the offence.

About Author

Deeya is a student at Vivekananda Institute of Professional Studies.