POCSO ACT,2012 and its Landmark Cases  (PROTECTION OF CHILDREN FROM SEXUAL OFFENCES)

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AUTHOR: Anushka Swaroop a student at Chhatrapati Shahu Ji Maharaj University (ABVSLS), Kanpur

 

ABSTRACT

Protection of Children from Sexual Offences Act,  2012  (POCSO ACT)”. The article provides a detailed study of the POCSO Act with an aim at providing children with mechanisms that could help prevent sexual offences to children and also have a child-friendly judicial process, the speedy trial and limit for disposal of cases, types of offences under this act and their punishment, loopholes of this act and it also talks about Laws before POCSO act 2012 and the need for 2012 legislation.

 

This is over and above a piece on “Landmark Judgments under POCSO Act,” showcasing the most important cases such as “Gulafsa begum v/s State of UP” (2021) case and the “Alakh Alok Srivastava v/s Union of India” (2018) case along with “Jarnail singh V/S State of Haryana” (2022) These cases are conceptually decisive in the sense that they outline and structure the interpretation and application of the Act.

 

INTRODUCTION

This is the legislation which is equally applicable to Gender and its main aim is to protect children from the wrongdoings of sexual abuse, harassment, pornography, trafficking; it also facilitates the constitution of special courts to take cognizance of such offences along with the connected or incidental matters.

Under this act, the age of protection is below 18 years and, evidently, is that of minors and minimum punishment is 10 years’ imprisonment.

 

WHAT IS CHILD SEXUAL ABUSE?(CSA)
The term CSA refers to sexual activities such as inappropriate touching of private parts or involving the child in touching the private parts of the perpetrator, molestation, sodomy, exhibitionism, pornography and cyber sexual acts.
Around 53% of Indian children are being reported to experience various forms of abuse, which surprisingly increased by 8.7% and hit a total of 1, 62,000 incidents, as reported by the National Crime Record Bureau (NCRB) in the year 2022.


SPEEDY TRIAL AND LIMIT FOR DISPOSAL OF THE CASE
Section (35) of POCSO Act prescribes the following timelines:

  • For regarding the evidence of the child – 30 Days from the date of taking cognizance of the offence.
  • For completing the trial – 1 Year from the date of taking cognizance of the offence.

 

UNDER THIS ACT

– Six Sexual offences against children  :


1) Penetrative Sexual Assault Section (3)- It consist of the penetration of a child’s vagina, urethra, anus or mouth by a penis/ finger/ objects/ body part. Manipulates any part of the body of a child so as to cause penetration into vagina, urethra, anus or any of the body of such child or makes her do so with him or any other person. Compels a child to do so with another  person with or without consent.

Punishment for the same is given under section(4) – 10 Years imprisonment for the individual

having the age of 16-18 years and 20 years imprisonment for the individual having the age below 16 years.

2) Aggravated penetrative sexual assault Section(5) – It lays down that whoever taking advantage of a child’s mental or physical disability When the abuse child is disabled or when the abuse is committed by a person in a position of trust or authority like a family member, teacher or doctor or pregnant women or gang rape or grievous injuries or child below the age of 12 years,
If he commits ‘penetrative sexual assault’ or ‘sexual assault’ on the child, he commits ‘aggravated penetrative sexual assault’.

Section(6) stipulates the punishment for the same – 20 years imprisonment or Death penalty.

3) Sexual assault section (7)- whoever with sexual intent touches the vagina ,penis ,Anus or breast of the child or make the child touches the private parts of such person or any other person or does any other act with sexual intent which involves physical contact without penetration

Punishment for the same is given under section (8) – 3 years imprisonment

4) Aggregative sexual assault section (9)-whoever commits sexual assault on a child and who has already been convicted of having committed any offence under this Act or any sexual offence punishable under any other law for the time being in force; or (u) whoever commits sexual assault on a child and compels the child to strip or parade naked in public, is said to commit aggravated sexual assault.

Punishment for the same is given under section (10)- 5 years imprisonment

5) ) Sexual harassment section (11) – Any person with sexual intent with child, the harassment revolves around utter word, gestures, exhibits objects or body parts, make the child to do above, showing pornography, stalking the child

Punishment for the same is given under section (12)- 3 years imprisonment.

6) Child pornography section (13)- Any visual depiction of sexually explicit conduct involving a child which includes photographs, video, digital or computer generated image indistinguishable from an actual child, and image created, adapted or modified but appear to depict a child
Punishment for the same is given under section (14)- 5 years/ 7 years imprisonment.

 

-Mandatory reporting :

Section (19)- Any person who has apprehension that an offence under this act is likely to be committed or has knowledge that such an offence has been committed, he shall provide such information to SJPU Or police.
Section 19(7) –No person shall incur any liability, whether civil or criminal, for giving the information in good faith for the purpose of sub section (1).

-Punishment for failure of report :

 Section 21(1)- Any person who fails to report the commission of an offence shall publish with imprisonment of either description which may extend to 6 months or with fine or with both.
Section 21(2)- Any person, being in charge of any company or an institution who fails to report the commission of an offence is respected of a subordinate under his control, shall be published with imprisonment for a term which may extend to 1 year and with fine

–Procedure for media regarding confidentiality :
Right to confidentiality section (23)- No report in any media shall disclose, the identity of a child including his name, address,
photograph, family details, school, neighborhood or any other particulars which may lead to disclosure of identity
of the child.
The publisher or owner of the media or studio or photographic facilities, shall be jointly and severally liable for the acts and omissions of his employee.


– Medical examination of child :

Section (27) – Medical examination and treatment should be prime motive. One cannot insist for fir first, before that treatment should be done properly.
In case of female victim female doctor will examine the child in presence of the parent’s of the child or any other person with whom the child reposes trust.

 

LAWS BEFORE POCSO ACT,2012
Before POCSO Act Goa Children’s Act, 2003 was the only specific piece of child abuse legislation.
Child sexual abuse were prosecuted under the following sections of the Indian Penal Code (IPC) which has now turned into Bhartiya Nyaya Sanhita (BNS)
1) I.P.C. (1860) Section 375– Rape

    B.N.S (2023) Section 63
2) I.P.C. (1860) Section 354- Outraging the modesty of a woman

    B.N.S (2023) Section 74
3) I.P.C. (1860) Section 377- Unnatural offences


 
 NEED FOR 2012 LEGISLATION
1) These sections neither safeguard the male child from sexual abuse not his modesty.
2) Only rape was criminalized (Male should be the penetrator and female child peno vaginal (offences).
3) Female abuses were not to be punished sternly.
4) No system of protection of children survivors during the trial.
5)  No touching and touching abuse such as sexual harassment ,  pornography and oral sex, sexual assault and using object against children for sexual offences respectively were not dealt with.

 

LANDMARK JUDGEMENT UNDER POCSO ACT,2012

  1. GULAFSA BEGUM V/S STATE OF UP (2021) – Victim not to be compelled to go for DNA test.
    In the instant case criminal revision filed by Gulafsa Begum who challenged the judgment and order passed by the Additional Sessions Judge in Sultanpur, Uttar Pradesh.
    The judgment refers to a criminal appeal (juvenile) associated with a case crime filed against the
    opposite party nos. 2 and 3 and other co-accused under Sections 376, 504, 506 IPC, and Section 3/4 of the POCSO Act.
    Gulafsa’s daughter, about 14 years of age, was allegedly raped seven months back, which resulted in her pregnancy. Gulafsa’s associates tried to arrange a marriage between her daughter and the opposite party no. 2, but the latter’s father refused to accept the proposal.
    Gulafsa and her accomplices threatened the opposite party no. 2 that it would meet dire consequences if the child was not aborted. The Investigating Officer framed charge sheet against the opposite party no. 2 and two others.
    Later on, opposite party no. 2 was declared a juvenile and the case was transferred to the Juvenile Justice Board.
    During the appeal, opposite party no. 2 sought DNA test of Gulafsa’s daughter, this was rejected by the Juvenile Justice Board. Opposite party no. 2 filed a criminal appeal, and during its pendency, they applied to impaled Gulafsa as opposite party no. 2. The Appellate Court decided the appeal without addressing the impleadment application.

 

  • ALAKH ALOK SHRIVASTAVA VS UNION OF INDIA (2018) [SC] – Best Practice For Trial In Pursuance To POCSO Act
    In the aforesaid judgment, it considered two prominent questions –

 


1.Disposal Of The Case With an Eight Months Old Girl as Victim. Here, An eight months female child was also violated under Protection of Children from Sexual Offences Act, 2012 POCSO Act

2. Treading Expediency to give speedy and time-bound results regarding the Child’s Friendly Proceeding in terms of POCSO Act.


In this case, it is an eight-month-old girl who was the victim of a crime under the POCSO Act. It raised questions over the child’s well-being and the legal proceeding that should take place in the court of law in a child-friendly manner.
The health condition of the child was checked by doctors from the All India Institute of Medical Sciences (AIIMS). Delhi State Legal Services Authority accompanied the medical team while taking the examination. The court reiterated that the POCSO cases need to be disposed of promptly. It pointed out that when children are concerned, speedy trial becomes more imperative.
The present case under the POCSO Act calls for child-friendly procedures for courts where a child has to undergo proceedings with safety and care.
The Supreme Court highlighted urgency in justice provision for child victims and emphasized procedures that are child-sensitive. This is a case reminder of our mutual responsibility to provide protection and assistance to vulnerable children.

 

  • JARNAIL SINGH V. STATE OF HARYANA (2013)-Age in the Juvenile Justice and POCSO Act
    In the present case during the year 1993 Jarnail Singh is held guilty for kidnapping and raped a minor girl.
    The mother of the victim girl reported in the police that her daughter missing. The mother suspicion is on one Jarnail Singh. Then the police verified the residence  both were missing their residence.
    Proceeding with Judgment:
    The trial court convicted Jarnail Singh on the basis of oral testimony of the prosecutrix and medical evidence of her ruptured hymen. Not satisfied with the judgment of the trial court, Jarnail Singh appealed to the Punjab & Haryana High Court, which dismissed his appeal in 2008.
    The Supreme Court later confirmed the conviction and sentence for rape and kidnapping.
    .
    Legal Principles and Rulings:
    1. The case brings out the need for corroborative evidence in sexual assault cases.
    2. The Supreme Court held that the absence of visible injuries on the body of the prosecutrix does not negate sexual assault.
    3. Medical evidence, along with the testimony of the victim, can prove guilt beyond reasonable doubt.
    Sentencing: Jarnail Singh was given rigorous imprisonment for his crimes.

 

FREQUENTLY ASKED QUESTIONS (FAQ’S)

 

  1. What is the POCSO Act, 2012?
  2. The POCSO Act is a comprehensive criminal law that intends to protect children under the age of 18 from sexual abuse, harassment, and exploitation.

 

  • Is the POCSO Act gender-neutral?
  • Yes, the POCSO Act is gender-neutral and applicable to all children, irrespective of their gender.


  • What are the major laws against child sexual abuse in India?
  • The major law is the POCSO Act, 2012, which defines specific sexual offenses and provides stringent punishments.


  • Is there a time limit for reporting abuse under the POCSO Act?
  • There is no specific time limit for reporting abuse under the POCSO Act. However, it is advisable to report as soon as possible to ensure timely intervention and justice.


  • Which provisions of the POCSO Act mandate confidentiality of the victim’s identity?  
  • Section 23 of the POCSO Act mandates the confidentiality of the victim’s identity to protect their privacy and dignity.


  • What is the punishment for penetrative sexual assault under the POCSO Act?
  • Penetrative sexual assault carries severe penalties, including life imprisonment.


  • Can a conviction for sexual assault be made on the sole testimony of the victim?
  • Yes, a conviction can be made based on the sole testimony of the victim, provided the court finds the testimony credible and reliable.


  • What are the duties of citizens as defined under the POCSO Act?
  • Citizens are expected to report their knowledge concerning any offenses under the POCSO Act before the concerned authorities.

                

LOOP HOLES OF THIS ACT
1) Consexual sex between children is punishable as per the law.
2) This law prohibits sex till the age of 18 years only.
3) Mandatory reporting leads to illegal termination of pregnancies as teenagers who are pregnant will not seek help.
4) POCSO Act 2012 is a aspirational and an amazing law but implementation is very poor.
5) It is very tough to implement the lady medical officers for examining the female children in every small hospitals females doctors are not
necessarily available.
6) Human resources are very poor at the hospital to support the family of the survivors and victims’.
7) We talk about special courts in POCSO cases but however, it’s the same building, same judge, and same advocates with old mindset and without child friendly environment.

CONCLUSION
The main intention of the POCSO Act was to save children below 18 years of age from sexual abuse and other sexually explicit crime. However, it is seen that the POCSO Act is occasionally taken advantage of by using its provisions in child custody cases and divorce proceedings. Many fake allegations are often filed by either of the parties under the POCSO Act.
The people in society need to come to understand that the POCSO allegations involve a serious gravity. In an effort to eliminate such instances, higher penalties should be implemented. Such divorce cases involving allegations of POCSO should have examinations conducted on a stricter scale. False cases can also provide unnecessary delays in the closure of cases falling under the purview of POCSO.

 

REFRENCING

 

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