A Comprehensive Guide On POCSO Act, 2012

Index

1. Introduction 
2. Why POCSO Act (2012) Is Needed
3. Scope Of POCSO Act, 2012 
4. When POCSO Act, 2012 Is Applicable
5. Why POCSO Act, 2012 Is Important
6. Salient Features POCSO Act, 2012
7. Important Terms And Sections Under POCSO Act, 2012
8. Punishment Under POCSO Act, 2012
9. Rights To Acknowledge Under POCSO Act, 2012
10. What Is Abetment And Attempt Of Child Abuse
11. Trial Features Under POCSO Act, 2012
12. Drawbacks Of POCSO Act, 2012
13. Conclusion 

Introduction 

The POCSO Act, 2012, is a critical legislation aimed at safeguarding children from various forms of sexual abuse. Despite the adoption of the Convention on the Rights of the Child by the United Nations in 1989, India lacked specific legal measures to address offences against children until 2012. The Act establishes severe penalties, including a minimum of 20 years imprisonment and even the death penalty for aggravated penetrative sexual assault. Its primary objective is to provide a robust framework for preventing and addressing sexual offences targeting children, ensuring their safety and well-being.

Why POCSO Act, 2012 Is Needed 

Prior to the enactment of the POCSO Act, 2012, India only had the Goa Children’s Act, 2003 and Rules, focused on safeguarding children’s rights. The Indian Penal Code, 1860, addressed child sexual abuse under Sections 375, 354, and 377, but lacked provisions for protecting male children or defining terms like ‘modesty’ and ‘unnatural offense.’ This gap in legislation prompted the need for a dedicated statute to address the rising cases of child sexual abuse. Thanks to the collaborative efforts of NGOs, activists, and the Ministry of Women and Child Development, the POCSO Act, 2012, was implemented on 14th November 2012, aimed at specifically addressing and combating child sexual abuse across the country.

Scope Of POCSO Act, 2012 

The scope of the POCSO Act, 2012, extends beyond exclusive jurisdiction over child sexual abuse cases in India. It does not constitute a standalone legal framework but intersects with provisions from the Code of Criminal Procedure, 1973, Indian Penal Code, 1860, Juvenile Justice Act, and Information Technology Act, 2000. These laws collectively outline procedures and define offenses related to child sexual abuse.

When POCSO Act, 2012 Is Applicable 

The POCSO Act, 2012, comprises 46 sections and was gazetted on 20th June 2012, yet its enforcement began on 14th November 2012, prompting questions about its retroactive application.

In the case of Kanha v. State of Maharashtra (2017), the accused faced charges under Section 376 of the Indian Penal Code and Section 6 of the POCSO Act for aggravated penetrative sexual assault leading to the victim’s pregnancy. The accused argued that without evidence of the foetus’s age, the offence date wasn’t near 14.11.2012, thus challenging prosecution under Section 6 of the POCSO Act. The Bombay High Court accepted this argument, resulting in the accused’s acquittal of all charges. This case underscores that when the applicability of the POCSO Act is in question, courts may alter the conviction or acquit the accused.

The Act specifies penalties for offences committed against children. According to Section 2(1)(d) of the POCSO Act, a child is defined as anyone under eighteen years of age. This means that crimes committed against individuals under eighteen years old are punishable under the POCSO Act.

Why POCSO Act, 2012 Is Important 

POCSO Act, 2012 was enacted amidst a surge in cases of sexual abuse against children. It includes provisions aimed at protecting children from sexual assault and pornography, along with outlining the procedures for enforcing these laws.

Sexual abuse incidents against children often occur in various settings such as schools, religious places, parks, hostels, etc., highlighting the lack of guaranteed security for children. Given these emerging dangers, the introduction of separate legislation was crucial to establish a reliable system for reducing such offences and holding perpetrators accountable.

Salient Features POCSO Act, 2012

Under Section 23 of the POCSO Act, guidelines are set for media reporting, emphasising the duty to safeguard the identity of child victims unless authorised by the Special Court. Section 23(2) specifically prohibits media reports from disclosing any details that could reveal the child’s identity, including name, address, photograph, family information, school, or neighbourhood. In the significant case of Bijoy @ Guddu Das v. The State of West Bengal (2017), the Calcutta High Court reinforced these provisions, warning that individuals, including police officers, would face prosecution for breaching these confidentiality rules.

A notable aspect of the POCSO Act is its lack of differentiation based on gender for both victims and perpetrators. This addresses a significant gap in the Indian Penal Code’s provisions. The Act defines a child as anyone under 18 years old, and there have been instances where women were convicted for involvement in child sexual abuse cases.

The secrecy surrounding sexual abuse often leads adults to conceal such incidents due to societal stigma. Therefore, to ensure effective implementation of the POCSO Act, Sections 19 to 22 mandate third parties with knowledge or suspicion of these offences to report them. These laws are founded on the understanding that children are vulnerable and society is obligated to safeguard their interests.

The “last seen” theory is utilized in trials related to child sexual abuse. This theory presumes that the individual last seen with the victim is the perpetrator, provided the time gap between their last sighting and the crime is so small that no one else could have committed it. However, in the case of Shyamal Ghosh v. State of West Bengal (2012), it was noted that when the time gap is significant, it is not appropriate for the courts to apply the last seen theory.

The POCSO Act’s Sections 24, 26, and 33 outline investigation and trial procedures tailored to meet the needs of children. During investigations under the POCSO Act, the following considerations are prioritised:

1. Child statements are recorded at their residence, typically by a female police officer.
2. The recording officer should not be in uniform.
3. The child should not encounter the accused during examination.
4. Children are not to be held overnight in police stations.
5. The child’s identity must be protected.
6. Statements are recorded in the presence of a trusted individual, like parents.
7. Statements are recorded using audio-video equipment.
8. Translators or interpreters are utilised as needed.
9. Frequent breaks are allowed during trials.
10. Special courts ensure minimal testimony repetition for the child.
11. Aggressive questioning of children is prohibited during trials.

Important Terms And Sections Under POCSO Act, 2012

Penetrative sexual assault has been mention under Section 3 and Section 4 has specified the penalties, strengthened further with the 2019 amendment.

The definition of penetrative sexual assault  according to this provision, a person is said to commit “penetrative sexual assault” if they penetrate their penis, to any extent, into the vagina, mouth, urethra, or anus of a child or make the child do so with them or any other person. Additionally, penetrative sexual assault also includes the act of inserting, to any extent, any object or a part of the body (other than the penis) into the vagina, urethra, or anus of the child or making the child do so with them or any other person

In the case of Bandu v. The State of Maharashtra (2017), a person was convicted under Sections 4 and 6 of the POCSO Act, along with relevant provisions of the Indian Penal Code, for committing penetrative sexual assault on a 10-year-old girl who was physically and mentally challenged. Similarly, in Pranil Gupta v. State of Sikkim (2015), a 15-year-old victim residing with the accused sustained injuries in her genital area. The accused admitted to undressing and sexually assaulting her multiple times in one night. Despite the accused’s claim of being unaware of the victim’s age, the High Court prosecuted him under Section 3 of the POCSO Act for the offence.

Section 5 of the Protection of Children from Sexual Offences (POCSO) Act outlines specific circumstances under which penetrative sexual assault is considered aggravated penetrative sexual assault. These instances include:

1. Police Officer: Penetrative sexual assault committed by a police officer within the vicinity of a police station.
2. Armed Forces: Penetrative sexual assault committed by armed forces personnel within the limits of their area.
3. Public Servant: Penetrative sexual assault committed by a public servant, such as a government official or a member of the judiciary.
4. Staff of Jails, Hospitals, or Educational Institutions: Penetrative sexual assault committed by staff members of jails, hospitals, or educational institutions.

These instances of penetrative sexual assault are considered aggravated penetrative sexual assault and are punishable under Section 6 of the POCSO Act.

Section 7 of the Protection of Children from Sexual Offences (POCSO) Act defines sexual assault as an act committed with sexual intent, involving physical contact without penetration. This includes touching the vagina, penis, anus, or breast of the child, or making the child touch the same body parts of the accused or any other person.

In the case of Subhankar Sarkar v. State of West Bengal (2015), the medical examination of the victim did not find evidence of penetrative sexual assault. However, the presence of scratch marks on the victim’s body indicated the use of force. Based on this, the accused was convicted under Sections 8 (punishment for sexual assault) and 12 (punishment for sexual harassment) of the POCSO Act, even though the act did not amount to penetrative sexual assault as defined under Section 3 of the Act.

Aggravated sexual assault under the Protection of Children from Sexual Offences (POCSO) Act is outlined in Sections 9 and 10 of the Act.

Section 9 of the POCSO Act lists the circumstances that constitute aggravated sexual assault, which include:

1. Sexual assault committed by a police officer, a member of the armed forces or security forces, or by the management or staff of a hospital, educational institution, or religious institution.
2. Gang sexual assault.
3. Sexual assault that causes grievous hurt or bodily harm to the child.
4. Sexual assault committed more than once.
5. Sexual assault of a child below 12 years of age.
6. Sexual assault committed for the purposes of menstrual or sexual purification.
7. Sexual assault that results in the pregnancy of the child.

In the case of Sofyan v. State (2017), the accused, a plant operator in the swimming pool area, was convicted by the Trial Court under Section 10 of the POCSO Act and Section 354 of the Indian Penal Code, 1860 for sexually assaulting an 8-year-old girl. The incident occurred when the victim was changing in the swimming costume area, and the accused approached her, inserted his hand into her costume, and touched her with sexual intent. Despite the accused’s claim of false implication, the Delhi High Court upheld the conviction, rejecting his defence.

Section 11 of the POCSO Act defines sexual harassment involving children, encompassing six specific scenarios. These scenarios include:

1. Uttering words, making sounds, or displaying objects with sexual intent to a child.
2. Encouraging a child to display their body to the offender or another person.
3. Showing pornographic material to a child.
4. Monitoring or stalking a child, either in person or online.
5. Threatening to use real or fake images of a child’s body or their involvement in sexual acts via electronic or digital means.
6. Persuading a child for pornographic purposes.

Section 13 of the Protection of Children from Sexual Offences (POCSO) Act criminalises the use of children for pornographic purposes. This includes:

1. Representing the sexual organs of a child.
2. Using a child in real or simulated sexual acts (with or without penetration).
3. Indecent or obscene representation of a child in programs or advertisements on television, the internet, or any other electronic or printed form.

In the case of Fatima A.S. v. State of Kerala (2020), a video on social media showed a mother being painted on her naked body above the navel by her two minor children. The mother claimed that the motive was to teach sex education to the children.

The Supreme Court of India observed that in the initial years, what a child learns from their mother has a lasting impression on their mind. The Court held that this case was covered under Section 13 of the POCSO Act, as the mother’s actions involved the indecent or obscene representation of children, even if the intent was to impart sex education.

Punishment Under POCSO Act, 2012

The punishment for penetrative sexual assault under the Protection of Children from Sexual Offences Act (POCSO) varies depending on the age of the child involved. For penetrative sexual assault on a child below the age of 16 years, the punishment is imprisonment for a term which shall not be less than twenty years, which shall mean imprisonment for the remainder of natural life of that person and shall also be liable to fine. For penetrative sexual assault on a child above the age of 16 years, the punishment is imprisonment of either description for a term which shall not be less than ten years, but which may extend to imprisonment for life and shall also be liable to fine

For aggravated penetrative sexual assault on a child below the age of 16 years, the punishment is rigorous imprisonment for a term which shall not be less than 20 years, which shall mean imprisonment for the remainder of natural life of that person, and the offender shall also be liable to fine.

For aggravated penetrative sexual assault on a child above the age of 16 years, the punishment is rigorous imprisonment for a term which shall not be less than 10 years, but which may extend to imprisonment for life, and the offender shall also be liable to fine or death. 

The punishment for sexual assault under Section 8 of the POCSO Act is imprisonment for a minimum of 3 years, which may extend to 5 years, and the offender shall also be liable to pay a fine.

The punishment for aggravated sexual assault under Section 10 of the POCSO Act is imprisonment for a minimum of 5 years, which may extend to 7 years, and the offender shall also be liable to pay a fine.

The punishment for sexual harassment under the Protection of Children from Sexual Offences (POCSO) Act, 2012 is imprisonment for up to 3 years along with a fine.

The punishment under Section 14(1), using a child for pornographic purposes is 5 years of rigorous imprisonment which may extend to 7 years with a fine. 

The punishment for using a child for pornographic purposes and committing offence under Section 3 will be imprisonment for no less than 10 years up-to life imprisonment with fine. 

The punishment for using a child for pornographic purposes and committing an offence under Section 7 will be imprisonment of 6 to 8 years with a fine. 

The punishment for using a child for pornographic purposes and committing an offence under Section 9 will be imprisonment of 8 to 10 years with a fine. 

Rights To Acknowledge Under POCSO Act, 2012

1. Right to Dignity: Various provisions within the POCSO Act underscore the paramount importance of treating children with dignity and profound compassion. These provisions are designed to ensure that children, especially victims of abuse, are handled with sensitivity and respect throughout legal proceedings and investigative processes.
2. Right to Life and Survival:.The right to life, enshrined in Article 21 of the Indian Constitution, is a fundamental entitlement. It is imperative to shield children from societal perils, ensuring they grow up in environments that prioritise their safety and well-being. The POCSO Act plays a vital role in safeguarding this fundamental right by addressing and penalising acts that jeopardise a child’s life and survival.
3. Right Against Discrimination: Similarly, the right against discrimination is a pivotal aspect of fundamental rights and an additional responsibility under the Indian Constitution. Children must not face discrimination based on factors such as gender, religion, or cultural background. Moreover, investigative and judicial procedures must uphold principles of fairness and impartiality to ensure justice and protection for every child, irrespective of their background or circumstances.
4. Children’s Right to Prevention Measures: Children, due to their developmental immaturity, require comprehensive training to recognize and prevent potential abuses, enabling them to discern between right and wrong actions effectively.
5. Children’s Right to Information: It is essential for children to be informed about the legal procedures involved in convicting perpetrators, ensuring their understanding and participation in the legal process.
6. Children’s Right to Privacy: Provisions such as Section 23 of the POCSO Act aim to safeguard a child’s right to privacy following any offence, maintaining confidentiality throughout legal proceedings to protect the best interests of the child victim.

What Is Abetment And Attempt Of Child Abuse 

Under Section 16 of the POCSO Act, abetment of an offence is clearly defined. The following actions are considered as abetment of an offence under the POCSO Act:

1. Instigating any person to commit the offence.
2. Engaging in a conspiracy with one or more persons to commit an offence, leading to any illegal act or omission as a result of that conspiracy.
3. Intentionally aiding in the commission of the offence.

The penalty for abetting an offence is outlined in Section 17 of the POCSO Act, 2012. It states that a person who aids in the commission of an offence, resulting in the actual execution of the offence, will be punished according to the prescribed punishment for that offence under the POCSO Act.

Section 18 of the POCSO Act addresses attempts to commit offences under the act, making it a punishable offence. Attempting to commit any offence under the POCSO Act, 2012 can lead to either of the following punishments:

1. Imprisonment for a term up to one-half of the maximum imprisonment for that offence, with or without a fine.
2. Imprisonment for a term up to one-half of the longest imprisonment term prescribed for that offence, with or without a fine.

Trial Features Under POCSO Act, 2012

Section 33 of the POCSO Act empowers the Special Court to initiate legal proceedings for an offence without formally committing the accused to trial. Additionally, Section 36 mandates that the victim should not be exposed to the accused during their testimony. However, in the case of Vasudev v. The State of Karnataka (2018), this provision was not followed. The deposition record revealed that the victim faced aggressive questioning, and the accused was only removed from the courtroom after the victim became emotionally distressed while recounting the incident. Despite these procedural irregularities, the Karnataka High Court upheld the conviction of the accused under Section 4 of the POCSO Act.

Under Section 35 of the POCSO Act, there are specific time limits for case proceedings:

1. Evidence recording from the child: Must be completed within 30 days from taking cognizance of the offence.
2. Trial completion: Should conclude within 1 year from taking cognizance of the offence.

In the case of Shubham Vilas Tayade v. The State of Maharashtra (2018), the Special Court allowed the prosecution to record evidence after the 30-day limit. The accused contested this decision, citing a violation of Section 35. However, the high court sided with the prosecution’s argument that since the accused didn’t initially challenge the prosecution’s request, they couldn’t challenge the order later. Additionally, it was noted that the Special Court can extend the evidence recording period beyond 30 days, as long as the reasons for the delay are documented.

Child sexual abuse cases often require more than just a physical examination for diagnosis. Scars or bruises on the victim’s body are not always present, either due to delayed reporting of cases or because the abuse may not cause visible injuries.

Medical examiners play a crucial role in child sexual abuse cases, requiring them to conduct examinations with meticulous care. According to Rule 5(3) of the POCSO Rules, 2012, medical practitioners providing emergency care to a child shouldn’t demand legal or other documentation before delivering such care. Additionally, Section 27 of the POCSO Act outlines specific guidelines for medical examinations, including conducting examinations in line with Section 164A of the Criminal Procedure Code, 1973. Furthermore, it mandates that a female practitioner should examine girls, and the examination must occur in the presence of a trusted individual like parents or, if unavailable, a woman designated by the medical institution’s head.

Drawbacks Of POCSO Act, 2012

The application of the last seen theory poses a risk of wrongful convictions, necessitating the need for circumstantial evidence to support its validity. In the case of Anjan Kumar Sarma v. State of Assam (2017), the Supreme Court ruled that the last seen theory, being a weak form of evidence, should not be solely relied upon for conviction.

The investigation apparatus handling child sexual abuse cases often lacks familiarity with the required procedures, resulting in flawed investigations.

The POCSO Act remains silent on consensual sexual activities where one participant is a minor. According to the Act, if sexual intercourse occurs with consent and involves a minor, the adult participant can face prosecution under the Act, as the consent of the minor is not considered a valid defence.

Children making false complaints are not subject to punishment under Section 22 of the POCSO Act, which exempts them from legal repercussions for filing such complaints. This exemption, however, has been exploited by some individuals, leading to misuse of this provision. Additionally, despite the stipulation in Section 35(2) of the POCSO Act that trials should ideally be completed within a year from taking cognizance of the offence, the increasing number of pending cases poses a significant challenge in ensuring an efficient justice system.

The two-finger test, conducted during the medical examination of sexual assault victims, violates their privacy and dignity. This test involves assessing whether the vaginal opening can accommodate two fingers easily, often implying previous sexual activity. Despite its ban by the government in 2012, this test is still being conducted, particularly on minor girls who are victims of offences under the POCSO Act. The two-finger test is no longer a legally permissible practice in cases of sexual assault, including under the Protection of Children from Sexual Offences (POCSO) Act.

Conclusion 

The POCSO Act, 2012 is a comprehensive law designed to address all aspects of child sexual abuse. It has been further strengthened through the Protection of Children from Sexual Offences (Amendment) Act, 2019, which introduced stricter punishments for offenders. 

There is an urgent need to raise awareness among the public about child sexual abuse to encourage reporting of such crimes without hesitation. Additionally, investigating agencies must receive proper training to handle these cases effectively. Medical practitioners and other professionals involved in the investigation and trial stages should be highly competent to avoid any negligence. 

The POCSO Act has already established child-friendly procedures, which should be consistently followed by judicial officers, magistrates, and police officers. This approach is crucial to instil trust in child victims and ensure justice is served.