There is always a need to know the purpose or object of enacting a particular Act, knowing its background or history becomes very important for the reason to enlighten ourselves as to why the Act is enacted and what problems or issues it proposed to answer and to see at present how far it is implemented.

STATEMENT OF OBJECTS AND REASONS

1. Article 15 of the Constitution, inter alia, confers upon the State, powers to make special provision for children. Further, Article 39, inter alia, provides that the State shall in particular direct its policy towards securing that the tender age of children are not abused and their childhood and youth are protected against exploitation and they are given facilities to develop in a healthy manner and in conditions of freedom and dignity.

As we all know that our Indian Constitution is a Grundnorm, it is mother of all Acts. Without our Indian Constitution it is practically impossible for any Act to see light of the day. Let’s see how far the objects of our Indian constitution are met to protect children against all such social evils one of them being offences under this Act.

• The United Nations Convention on the Rights of Children, ratified by India on 11^th December, 1992, requires the State Parties to undertake all appropriate national, bilateral and multilateral measures to prevent
• The inducement or coercion of a child to engage in any unlawful sexual activity;
• The exploitative use of children in prostitution or other unlawful sexual practices; and
• The exploitative use of children in pornographic performances and materials.

• The data collected by the National Crime Records Bureau shows that there has been increase in cases of sexual offences against children. This is corroborated by the ‘Study on Child Abuse: India 2007’ conducted by the Ministry of Women and Child Development.

The latest report released by the National Crime Records Bureau (NCRB) shows that 1,49,404 cases of crime against children were registered in 2021 of which 53,874 (36.05%) were under the Protection of Children from Sexual Offences Act (POCSO).[1]

Moreover, sexual offences against children are not adequately addressed by the extant laws. A large number of such offences are neither specifically provided for nor are they adequately penalized. The interests of the child, both as a victim as well as a witness, need to be protected. It is felt that offences against children need to be defined explicitly and countered through commensurate penalties as an effective deterrence.

• It is, therefore, proposed to enact a self-contained comprehensive legislation inter alia to provide for protection of children from the offences of sexual assault, sexual harassment and pornography with due regard for safeguarding the interest and well-being of the child at every stage of the judicial process, incorporating child-friendly procedures for reporting, recording of evidence, investigation and trial of offences and provision for establishment of Special Courts for speedy trial of such offences.

1. INTRODUCTORY POINTS:
2. The Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as the Act) extends to whole of India.
3. The Act came into force on 14^th November, 2012.
4. This Act consists of 46 Sections and contains 9 chapters.

• ESSENTIAL FEATURES OF THE ACT
• This Act is gender neutral. Child is victim under this Act but child can also be accused (under 18 years).

Placing reliance on the Apex Court’s verdict[2], the court clarified that the word ‘person’ in Section 34(2) of the POCSO Act includes not only a child who is accused of committing an offence but also a child who is a victim of the offence.[i]

“The legislative intent behind using the word ‘person’ cautiously has to be paid homage by interpreting the word ‘child’ in a broader manner to include even a ‘child victim’. Thus, Section 34(2) of the POCSO Act casts a positive duty on the special court to satisfy itself with recorded reasons as to whether the ‘person’ is a child or not” (live law)

The Justice Verma Committee Report, on interpreting Article 34 of the United Nations Convention on the Rights of the Child, recommended that the age of consent under the POCSO Act should be reduced to sixteen years, stating that the POCSO Act “was aimed inter alia to protect children from sexual assault and abuse and not to criminalise consensual sex between two individuals even if they are below eighteen years of age.” [3]

• Section 2(2) clearly states that this Act is not complete in itself and must be read with Indian Penal Code, 1860, the Code of Criminal Procedure, 1973, the Juvenile Justice (Care and Protection of Children) Act, 2000 and the Information Technology Act, 2000. Some of the instances can be seen through catena of judgments discussed below.

In XXX XXX Vs. State of Kerala (2023 (1) PRC 622) court held that, “ A perusal of provisions of POCSO Act reveals that statute does not, by itself, declare Section 21 to be a non-bailable offence. When there is no reference in statute treating a particular offence as bailable or non-bailable, reliance has to be placed on Schedule to Cr.P.C. According to Schedule to Cr.P.C evidences that if, under or laws, offence is punishable with imprisonment for less than three years or with fine only, offence is bailable and non-cognizable. It is thus evident that Section 21 of POCSO Act, which provides for a punishment of six months or a maximum of one year, is a bailable offence.” [4]

• This Act prescribes punishment for failure to report or record a case but the same shall not apply to child.
• Identity of child is concealed and kept confidential in every way possible in the interest of the child by making stringent provisions under this Act.

The apex court took the view that a victim of rape will face hostile discrimination and social ostracisation in society. Such victim will find it difficult to get job, married and much less to get integrated in society like a normal human being. The court felt that the need is much greater to protect the victim and hide her identity after noting few instances that took place:

“In one case, which made the headlines recently, though the name of the victim was not given it was stated that she had topped the State Board Examination and the name of the State was given. It would not require rocket science to find out and establish her identity. In another instance, footage is shown on the electronic media where the face of the victim is blurred but the faces of her relatives, her neighbours, the name of the village etc. is clearly visible. This also amounts to disclosing the identity of the victim. ”

Therefore, the Court held that no person can print or publish the name of the victim or disclose any facts which can lead to the victim being identified and which should make her identity known to the public at large. The Court further held that the name of the victim or her identity should not be disclosed even under the authorization of the next of the kin, without permission of the competent authority.

“the applicant may not be the next of kin, but the “next friend” of the child, who may be entitled to move such an application. It will be for the Court or the competent authority to decide who is the “next friend””[5]

The Sikkim High Court dealing with this issue held as follows:-

“27……….The mandate of the provision requires no further clarification. Suffice it to say that neither for 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 matter, the name, address, school or other particulars which could lead to the child being tracked, found and identified shall be disclosed, unless for the reasons given in the proviso extracted hereinbefore. The Police and Media as well as the Judiciary are required to be equally sensitive in such matters and to ensure that the mandate of law is complied with to the letter.”[6]

The Calcutta High Court has given a detailed judgment setting out the reasons while dealing with the provisions of POCSO and held that neither during investigation nor during trial the name of the victim should be disclosed.[7]

• Utmost care is taken to provide child-friendly environment at all stages of proceedings in court. Section 33(4) of the Act enjoins on the Special Court to ensure that there is child friendly atmosphere in the Court.

In this case Apex Court emphasized the need to have child friendly courts. It noted that those who have been subjected to sexual assault are virtually overwhelmed by the atmosphere in the courts. When they are cross-examined in a hostile and intimidatory manner then the nervousness increases and the truth does not come out.[8]

• Special Courts are designated to deal with POCSO cases for the purposes of providing speedy trial.

• Jurisdiction may lie to the courts which has been constituted under Information Techcnology Act or constituted under Juvenile Justice Act (children’s court (Section 2 (20))or special police officer) or constituted under this Act.

• Special Court can presume that the accused has committed or abetted or attempted to commit the offence unless the contrary is proved (burden of proof is on accused to prove that he is innocent).

Court held that-

“there is sufficient evidence on record to prove that at the time of incident victims’s age was 8 years. Prosecution evidence is cogent, reliable and prosecution witnesses are trustworthy. From the evidence brought on record the prosecution has proved that accused has committed offence of rape as well as aggravated penetrative sexual assault within the meaning of Section 3 of the said Act. Accused has failed to discharge burden of proving his innocence.”[9]

Court shall also presume the existence of culpable mental state on part of the accused and accused can rebut it in his defence.

Usually the defence taken by accused in rape cases is that the consent given by the victim but under this Act consent of victim is no defence for accused.

The court held that “Consent of a minor is not treated as valid consent. A minor girl can be easily lured into giving consent for such an act without understanding the implications thereof. Such a consent, therefore, is treated as not an informed consent given after understanding the pros and cons as well as consequences of the intended action. Duty is cast on the other person in not taking advantage of the so-called consent given by a girl who is less than 16 years of age. Even when there is a consent of a girl below 16 years, the other partner in the sexual act is treated as criminal who has committed the offence of rape. Law leaves no choice to him and he cannot plead that the act was consensual. A fortiori, the so-called consent of the prosecutrix below 16 years of age cannot be treated as mitigating circumstance. Appeal dismissed.”[10]

• Qualifications of Special Public Prosecutors are prescribed.

1. Trial Procedure in child-friendly atmosphere.

1. The evidence of the child shall be recorded within a period of 30 days of the Special Court taking cognizance of the offence and Special Court shall complete the trial as far as possible within 1 year from the date of taking cognizance of the offence.

1. The court must ensure that accused is not brought directly in contact with victim- child.

Section 36 of the Act lays down that the child should not see the accused at the time of testifying. This is to ensure that the child does not get scared on seeing the alleged perpetrator of the crime.

1. The Special court shall try cases in camera.

• SEXUAL OFFENCES AGAINST CHILDREN
• Section 3 deals with Penetrative Sexual assault and Section 4 deals with punishment for penetrative sexual assault where sexual assault against child above 16 but below 18 years is punished with imprisonment not less than 10 years but which may extend to imprisonment for life and fine (Fine imposed shall be just and reasonable and to be paid to the victim to meet the medical expenses and rehabilitation of such victim.) whereas for an offence of sexual assault against a child below 16 years the punishment shall be imprisonment for a term not less than 20 years but which may extend to imprisonment for life (imprisonment for the remainder of natural life of that person) and fine.
• The most important Section under this Act is Section 5 and 6 which deals with aggravated penetrative sexual assault and punishment thereof , court can in exceptional cases even award capital punishment (death penality). It is so termed as aggravated because it is committed by those persons in whom we repose confidence in our daily life namely, police officer, armed forces or security forces, public servant, management or staff of jail, hospital, educational institution or religious institution etc.,
• This Act also deals with Sexual assault and aggravated sexual assault and punishment thereof and also Sexual harassment and punishment for sexual harassment.

• DETERMINATION OF AGE OF THE VICTIM-CHILD

Determination of age of victim is precondition for court to proceed with the case as POCSO case. There are many instances where accused got acquitted for the reason that prosecution could not prove age of victim to be below 18 years. It is also important to determine the age of victim in the light of stringent punishments imposed under this Act.

The Court held that in determining age of child under POCSO Act (Section 34(1)) it must be read with Section 94 of JJ Act, 2015-

“(Para 13) It is evident from conjoint reading of the above provisions that wherever the dispute with respect to the age of a person arises in the context of her or him being a victim under the POCSO Act, the courts have to take recourse to the steps indicated in Section 94 of the JJ Act. The Three documents in order of which the Juvenile Justice Act requires consideration is that the concerned court has to determine the age by considering the following documents:

• the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof;
• the birth certificate given by a corporation or a municipal authority or a panchayat;
• and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board.”

The Supreme Court observed that school transfer certificate and extracts of the admission register cannot be relied on to determine age of the victim in POCSO cases. (LiveLaw)[11]

The court held that “The Birth Certificate issued by the statutorily appointed competent authority is relevant and admissible. The same is a public document and it constitutes primary evidence. Victim has deposed that the physical relations were kept under threats and, therefore, there was no consent. Held, presumption under Section 114A of the Evidence Act is applicable. DNA report shows that the appellant was the biological father of the foetus of the victim. Appeal is dismissed.”[12]

Maherban Hasan Babu Khan vs. State of Maharashtra and Anr (2023 (1) PRC 652)- “Ossification test or other medical test though is a guiding factor for determining the age, it is not conclusive or incontrovertible and leaves a margin of error of two years on either side. Benefit of doubt with regard to the age of the victim always goes in favour of the accused. Appeal allowed”[13]

• BAIL

A question may arise that the offences under this Act being of serious nature which have stringent punishments whether all such offences are to be treated as non-bailable offences?

By observing recent instances of false complaints, our apex court as well as various courts took serious note of it and in such context the legislators are to be appreciated who very well in advance anticipated the consequences of it if at all offences under this Act are made non-bailable and therefore at the very beginning we saw that this Act should be read with Code of Criminal Procedure, 1973

Himanchal Pradesh High Court held that –

The Act does not impose any special prohibition for grant of bail in offences committed under the Act. Rather, Section 31 thereof makes provisions of Code of Criminal Procedure including provisions as to bail and bonds applicable to proceedings therein. This court followed :

“11. Hon’ble Supreme Court judgment in Cr. Appeal No. 1391 of 2022 (Arising out of SLP (Crl.) No. 9317 of 2021) titled X (Minor) Vs. The State of Jharkhand and another, decided on 21.02.2022 refused to accept ‘love affair’ as relevant consideration for grant of bail in POCSO offences keeping in view the age of victim in that case which was only 13 years. In the instant case, however, there is a serious question mark on the age of the victim”.

In the present case taking facts and circumstances of the case into consideration court allowed the petition and ordered to release petitioner on bail.[14]

In Mahesh Kumar Vs. State (NCT of Delhi) (2023 (1) PRC 662), it was held that “ in cases of teenage love, the genuine innocent teenage boys and girls, being unaware of age of consent in law being 18 years, languish in jail or in protection home. It has adverse negative impact on their future too. In such cases, confinement in jail will cause distress and will impact the psychological health of the accused also. Court, however, is bound by the law as it is and therefore, in such circumstances can only direct that the accused be granted his freedom of bail and not languish in jail. Application disposed off”.[15]

The court took a view that-

“a large array of the cases filed under the POCSO Act seems to be those arising on the basis of the complaints/F.I.Rs. lodged by the families of adolescents and teenagers who are involved in romantic relationship with each other. The scheme of the Act clearly shows that it did not intend to bring within its scope or limits, the cases of the nature where the adolescents or teenagers involved in the dense romantic affair.”[16]

• FEW IMPORTANT PROCEDURES UNDER THE POCSO ACT

1. PROCEDURE FOR REPORTING CASES
2. Any persons who comes across with a person indulging in exploitation of child including the victim child can give information to Special Juvenile Police Unit or the local police officer, after recording the same the report must be read over to child, if necessary assistance of translator or interpreter can be taken.
3. There are situations where victim will be brought in serious condition where there is a need to either immediately admit to nearest hospital or send to shelter homes by special juvenile police unit or local police.
4. Such police officer must within 24 hours report the matter to child welfare committee and the special court or court of session as the case may be.  The person who gives information in good faith incurs no liability.
5. Media plays an important role in communicating news to every nook and corner of this country, people nowadays have easy access and the expression prevalent these days is “viral”. It is to be well appreciated that law has put restriction or limitation on media by imposing an obligation not to reveal identity of victim either directly or indirectly and respecting the dignity, reputation and privacy of victim child but if Special court permits such disclosure in the interest of child then identity can be revealed. If media contravenes this provision then publisher or owner shall be jointly and severally liable. It is relevant here to note that the source of information which media acquires is very fast and in such cases law rightly included a provision obliging even media to report such cases immediately when they come across and if not done so they get penalized under this Act.
6. More than utilizing a legislation in right manner people often misuse such beneficial provisions for their personal vengeance, one such act is giving false complaint or false information for obvious reason to harass innocent person. This Act does not entertain such intention to humiliate, extort or threaten or defame an innocent person.

• PROCEDURES FOR RECORDING STATEMENT OF THE CHILD
• Law provides that unlike normal procedure, the statement of the child shall e recorded at the residence of the child or place of his choice by a woman police officer not below the rank of sub-inspector.
• While recording such statements, police officer shall not be in uniform.
• Most importantly while examining the child police officer must make sure that at no point of time the child comes in contact with the accused in any way.
• If magistrate records statement of child then it need not permit presence of advocate of the accused and after recording statement as spoken by the child a copy of the document shall be provided to child and his parents/representative.
• Recording such statement can be in the presence of parents of the child or any person in whom the child has trust and confidence.
• Wherever necessary assistance of a translator or an interpreter may be taken. In case child is having a mental or physical disability then assistance of a special educator or expert in the field of communication of child may be taken.
• Medical examination of victim child if a girl shall be conducted by a woman doctor. It shall be conducted in presence of parent of the child or any other person in whom the child reposes trust or confidence.

• PROCEDUREE AND POWERS OF SPECIAL COURTS AND RECORDING OF EVIDENCE
• A Special Court may take cognizance of any offence upon receiving a complaint or upon a police report.
• As the accused must not be brought in contact face to face with victim, the counsel appearing for the accused (Special Public Prosecutor) while recording the examination-in-chief, cross-examination or re-examination of the child, communicate the questions to be put to the child to the Special Court which shall in turn put those questions to the child.
• Special Court may permit frequent breaks for the child during the trail.
• The Special court shall create a child-friendly atmosphere by allowing a family member, a guardian etc., to be present in the court.
• All pain and trauma that child has gone through enough is to be taken in consideration for which law provides that child should not be called repeatedly to testify in the court.
• Harsh or aggressive questioning is not allowed much less character assassination of the child.
• Special court may in addition to the punishment direct payment of such compensation as may be prescribed to the child for any physical or mental trauma caused to him or for immediate rehabilitation of such child

• CONCLUSION

No doubt that this Act has done its best in protecting interest of child and prescribed punishment which is deterrent but mostly under this Act it provides how a child shall be protected after exploitation though there is a provision where as a preventive action this Act has obliged each and every citizen to report such offence which comes to their knowledge which is about to be committed, but what is in law must be brought in action therefore, Police officers must be very active to prevent such exploitation about to be committed which alone serves the purpose of enacting this Act.  It is a harsh reality that children are exploited by family members, nowadays as everyone is running to make money and giving 90% of their time to their work are neglecting their children ignoring the fact that child is only safe in the hands of parents but again there are instances where one of the parent itself abets or instigates other person to exploit child. To think where the root cause is, it is mind of a human being which is polluted. Law does everything to safeguard the child but it is we who should be having a soul to understand another innocent soul, are we in general thinking before hurting someone physically or mentally, question yourself today. The root cause is fault in upbringing of a child who in future commits such heinous offences. A child of tender age shall be taught moral values and do everything to make him/her a good citizen. It is not only the responsibility of law makers or police officers but a collective responsibility of each and every citizen to be a good contribution in child’s life but not a destructor. I am of no words to describe how a child who goes through such offence would feel so insecure in this world for rest of his/her life. Let’s bring change in this world starting from our home to see a day with zero violence against child.

It was thoughtful of legislator for not only looking at the perspective of society at large but empathetically considering how child should be protected in all angles and at all stages of proceedings.

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[1] https://indianexpress.com/article/india/crime-against-kids-a-third-still-under-pocso-8119689/

[2] Jarnail Singh Vs State of Haryana reported in (2013) 7 SCC 263

[3] https://www.scconline.com/blog/post/2023/03/12/age-of-consent-under-the-pocso-act/#FN0017

[4] XXX XXX Vs. State of Kerala (2023 (1) PRC 622)

[5] Nipun Saxena and Another Vs Union of India and Others (2019 (2) SCC 703)

[6] Subash Chandra Rai v. State of Sikkim, 2018 CriLJ 3146              

[7]  Bijoy v. State of West Bengal, 2017 CrilJ 3893,

[8] Nipun Saxena and Another Vs Union of India and Others (2019 (2) SCC 703)

[9] Bharat Chhagan vs. State of Maharashtra; XYZ (2023 (1) PRC 529)

[10] Surjeet Kumar Vs. State (2023 (1) PRC 370)

[11] P. Yuvaprakash Vs. State Rep. by Inspector of Police (2023 Live Law (SC) 538/2023 INSC 626)

[12] Sameer Shashikant Jhadhav Vs. State of Maharashtra & Anr (2023 (1) PRC 198)

[13] Maherban Hasan Babu Khan vs. State of Maharashtra and Anr (2023 (1) PRC 652)

[14] in Prem dutt s/o Babu ram Vs. State of Himanchal Pradesh (2023 (1) PRC 40)

[15] Mahesh Kumar Vs. State (NCT of Delhi) (2023 (1) PRC 662)

[16] Atul Mishra Vs State of UP

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 Author: Durga Bhavani Allur

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