AN ANALYSIS OF PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT, 2012

Authored By:                                                 

Mr. Hitabhilash Mohanty, LLM in Human Rights

TABLE OF CONTENTS

Introduction. 1

An Overview of the Act 2

Important Provisions of the Act 4

The Sexual Offences which are Recognized Under The Pocso Act and Punishments for Those Offences. 4

Procedure for Reporting of Cases under the Act 7

Medical Examination under Section 27 of Pocso Act 8

Introduction of Death Penalty. 9

Provision for Special Courts. 10

INTRODUCTION

The very inadequacy of Indian Penal Code and absence of any stringent legislation for effectively addressing and tackling heinous crimes such as sexual exploitation and sexual abuse of children birthed the commencement of  POCSO Act, 2012 as the very intention of Government establishments was to protect the children from offences of sexual assault, sexual harassment and pornography and to facilitate adequate legal machinery by establishing special courts for trial of such offences and matters incidental connected with child sexual abuse crimes. This was in due compliance of Article 15 of Constitution of India which mandates the states to protect the children of this nation and in lieu of United Nations Conventions on the Rights of the Child which prescribes the set of standards to be followed by state parties in securing the  best interest of the child.

Though this legislation is general in nature and applies to everyone irrespective of their caste, creed, gender, religion etc. particularly, it punishes the offenders committing crimes against the children in rural as well as urban areas of the country. 

AN OVERVIEW OF THE ACT

To deal with child sexual abuse cases, the Government has brought in a special law, namely, The Protection of Children from Sexual Offences (POCSO) Act, 2012. The Act has come into force with effect from 14th November, 2012 along with the Rules framed thereunder.

The POCSO Act, 2012 is a comprehensive law to provide for the protection of children from the offences of sexual assault, sexual harassment and pornography, while safeguarding the interests of the child at every stage of the judicial process by incorporating child-friendly mechanisms for reporting, recording of evidence, investigation and speedy trial of offences through designated Special Courts.

The said Act defines a child as any person below eighteen years of age, and defines different forms of sexual abuse, including penetrative and non-penetrative assault, as well as sexual harassment and pornography, and deems a sexual assault to be “aggravated” under certain circumstances, such as when the abused child is mentally ill or when the abuse is committed by a person in a position of trust or authority vis-à-vis the child, like a family member, police officer, teacher, or doctor. People who traffick children for sexual purposes are also punishable under the provisions relating to abetment in the said Act. The said Act prescribes stringent punishment graded as per the gravity of the offence, with a maximum term of rigorous imprisonment for life, and fine.

In keeping with the best international child protection standards, the said Act also provides for mandatory reporting of sexual offences. This casts a legal duty upon a person who has knowledge that a child has been sexually abused to report the offence; if he fails to do so, he may be punished with six months‟ imprisonment and/ or a fine.

The said Act also casts the police in the role of child protectors during the investigative process. Thus, the police personnel receiving a report of sexual abuse of a child are given the responsibility of making urgent arrangements for the care and protection of the child, such as obtaining emergency medical treatment for the child and placing the child in a shelter home, should the need arise. The police are also required to bring the matter to the attention of the Child Welfare Committee (CWC) within 24 hours of receiving the report, so the CWC may then proceed where required to make further arrangements for the safety and security of the child.

The said Act makes provisions for the medical examination of the child in a manner designed to cause as little distress as possible. The examination is to be carried out in the presence of the parent or other person whom the child trusts, and in the case of a female child, by a female doctor.

The said Act provides for Special Courts that conduct the trial in-camera and without revealing the identity of the child, in a child-friendly manner. Hence, the child may have 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; further, the child is not to be called repeatedly to testify in court and may testify through video-link rather than in a courtroom. Above all, the said Act stipulates that a case of child sexual abuse must be disposed of within one year from the date the offence is reported. It also provides for the Special Court to determine the amount of compensation to be paid to a child who has been sexually abused, so that this money can then be used for the child’s medical treatment and rehabilitation.

The said Act recognises almost every known form of sexual abuse against children as punishable offences, and makes the different agencies of the State, such as the police, judiciary and child protection machinery, collaborators in securing justice for a sexually abused child. Further, by providing for a child-friendly judicial process, the said Act encourages children who have been victims of sexual abuse to report the offence and seek redress for their suffering, as well as to obtain assistance in overcoming their trauma. In time, the said Act will provide a means not only to report and punish those who abuse and exploit the innocence of children, but also prove an effective deterrent in curbing the occurrence of these offences.

The said Act is to be implemented with the active participation of the State Governments. Under Section 39 of the said Act, the State Government is required to frame guidelines for the use of persons including non-governmental organisations, professionals and experts or persons trained in and having knowledge of psychology, social work, physical health, mental health and child development to assist the child at the trial and pre-trial stage.

The said Act of 2012 was amended in 2019 and the offences prescribed in the old Act is replaced with enhanced punishments.

IMPORTANT PROVISIONS OF THE ACT

• POCSO Act defines child as any person below 18 years of age,[1]

• There are five types of sexual offences against children under POCSO Act. These are: penetrative sexual assault; aggravated penetrative sexual assault; sexual assault; aggravated sexual assault; and sexual harassment,[2]
• Abetment of an offence or an attempt to commit an offence is also punishable under the Act,[3]
• Using a child for pornographic purposes such as representation of the sexual organ of a child, usage of a child engaged in real or stimulated sexual acts, the indecent or obscene representation of a child is an offence under POCSO Act and is punishable,[4]
• A Special Court is a court to be set up under section 28 of the POCSO Act for providing speedy trial and to try the case in a child friendly atmosphere.[5]
• The Special Court shall complete the trial within a period of one year from the date of taking cognizance of the offence.[6]

THE SEXUAL OFFENCES WHICH ARE RECOGNIZED UNDER THE POCSO ACT AND PUNISHMENTS FOR THOSE OFFENCES

[Comparative overview of 2012 Act and 2019 Amendment Act]

• Penetrative sexual assault: Under the Act, a person commits “penetrative sexual assault” if he: (i) penetrates his penis into the vagina, mouth, urethra or anus of a child, or (ii) makes a child do the same, or (iii) inserts any other object into the child’s body, or (iv) applies his mouth to a child’s body parts.  The punishment for such offence is imprisonment between seven years to life, and a fine.  The Bill increases the minimum punishment from seven years to ten years.  It further adds that if a person commits penetrative sexual assault on a child below the age of 16 years, he will be punishable with imprisonment between 20 years to life, with a fine. 

• Aggravated penetrative sexual assault: The Act defines certain actions as “aggravated penetrative sexual assault”.  These include cases when a police officer, a member of the armed forces, or a public servant commits penetrative sexual assault on a child.  It also covers cases where the offender is a relative of the child, or if the assault injures the sexual organs of the child or the child becomes pregnant, among others.  The Bill adds two more grounds to the definition of aggravated penetrative sexual assault.  These include: (i) assault resulting in death of child, and (ii) assault committed during a natural calamity, or in any similar situations of violence.  Currently, the punishment for aggravated penetrative sexual assault is imprisonment between 10 years to life, and a fine.  The Bill increases the minimum punishment from ten years to 20 years, and the maximum punishment to death penalty.
   
• Aggravated sexual assault: Under the Act, “sexual assault” includes actions where a person touches the vagina, penis, anus or breast of a child with sexual intent without penetration.  “Aggravated sexual assault” includes cases where the offender is a relative of the child, or if the assault injures the sexual organs of the child, among others.  The Bill adds two more offences to the definition of aggravated sexual assault.  These include: (i) assault committed during a natural calamity, and (ii) administrating or help in administering any hormone or any chemical substance, to a child for the purpose of attaining early sexual maturity.

• Pornographic purposes: Under the Act, a person is guilty of using a child for pornographic purposes if he uses a child in any form of media for the purpose of sexual gratification. The Act also penalises persons who use children for pornographic purposes resulting in sexual assault.  The Bill defines child pornography as any visual depiction of sexually explicit conduct involving a child including photograph, video, digital or computer generated image indistinguishable from an actual child.  In addition, the Bill enhances the punishments for certain offences as shown the below mentioned table.

Table: Punishment for offences for using child for pornographic purposes

Offence	POCSO Act, 2012	Amendment Act, 2019
Use of child for pornographic purposes	Maximum: 5 years	Minimum: 5 years
Use of child for pornographic purposes resulting in penetrative sexual assault	Minimum: 10 years Maximum:life imprisonment	Minimum: 10 years (in case of child below 16 years: 20 years) Maximum: life imprisonment
Use of child for pornographic purposes resulting in aggravated penetrative sexual assault	Life imprisonment	Minimum: 20 years Maximum: life imprisonment, or death.
Use of child for pornographic purposes resulting in sexual assault	Minimum: Six years Maximum: Eight years	Minimum: Three years Maximum: Five years
Use of child for pornographic purposes resulting in aggravated sexual assault	Minimum: Eight years Maximum: 10 years	Minimum: Five years  Maximum: Seven years

Note: Punishment for using child for pornographic purposes resulting in any form of sexual assault is in addition to minimum five years for use of child for pornographic purposes.

• Storage of pornographic material: The Act penalises storage of pornographic material for commercial purposes with a punishment of up to three years, or a fine, or both.  The Bill amends this to provide that the punishment can be imprisonment between three to five years, or a fine, or both.  In addition, the Bill adds two other offences for storage of pornographic material involving children.  These include: (i) failing to destroy, or delete, or report pornographic material involving a child, and (ii) transmitting, displaying, distributing such material except for the purpose of reporting it.

PROCEDURE FOR REPORTING OF CASES UNDER THE ACT

• Reporting of offence to the SJPU or the local police[7]
• In case, child is in need of care and protection, SJPU/ local police to provide such care within 24 hours of the report[8]
• SJPU/ local police to report the matter to CWC and Special Court within 24 hours[9]
• Obligation of media, studio and photographic facilities report cases to SJPU/ local police[10]
• Failure to report commission of offence punishable with imprisonment of six months or with fine or both[11]
• Failure to record an offence also punishable with imprisonment of six months or with fine or both[12]
• Failure to report by a person, who is in charge of any company or an institution, in respect of offence committed by subordinate under his control, also punishable with imprisonment of one year and fine[13]
• Failure to report not punishable in case of a child[14]
• False complaint against any person with malicious intent punishable with imprisonment of 6 months or with fine or both[15]
• False complaint against child, punishable with imprisonment of one year or with fine or with both[16]
• No civil or criminal liability for giving information in good faith[17]
• Media not to disclose the identity of the child, except when permitted by the Special Court[18]
• Identity includes: name, address, photograph, family details, school, neighbourhood or any other particulars which may lead to disclosure of identity of the child
• Punishment in case of contravention is imprisonment for not less than 6 months which may extend to one year

MEDICAL EXAMINATION UNDER SECTION 27 OF POCSO ACT

As per section 164A of CrPC:

In case of girl child, medical examination by lady doctor • Medical examination in the presence of parents

In case parent of the child cannot be present, medical examination to be conducted in the presence of a woman nominated by the head of the medical institution

Section-164 A of Cr.P.C.- Medical examination of the victim of rape.

The registered medical practitioner, to whom such woman is sent shall, without delay, examine her and prepare a report of his examination giving the following particulars, namely:-

• the name and address of the woman and of the person by whom she was brought;
• the age of the woman;
• the description of material taken from the person of the woman for DNA profiling;
• marks of injury, if any, on the person of the woman;
• general mental condition of the woman; and
• other material particulars in reasonable detail..
• The report shall state precisely the reasons for each conclusion arrived at.
• The report shall specifically record that the consent of the woman or of the person competent to give such consent on her behalf to such examination had been obtained.
• The exact time of commencement and completion of the examination shall also be noted in the report.
• The registered medical practitioner shall, without delay forward the report to the investigation officer who shall forward it to the Magistrate referred to in section 173 as part of the documents referred to in clause (a) of sub-section (5) of that section

INTRODUCTION OF DEATH PENALTY

While introducing the The Protection of Children from Sexual Offences (Amendment) Bill, 2019[19]in the Lok Sabha, it was noted in the statement and object of the Bill that “in the recent past incidences of child sexual abuse cases demonstrating the inhumane mind-set of the abusers who have been barbaric in their approach towards young victims is rising in the country. Children are becoming easy prey because of their tender age, physical vulnerabilities and inexperience of life and society. The unequal balance of power leading to the gruesome act may also detriment the mind of the child to believe that might is right and reported studies establish that children who have been victims of sexual violence in their childhood become more abusive later in their life. The report of the National Crime Records Bureau for the year 2016 indicate increase in the number of cases registered under the said Act from 44.7 per cent. in 2013 over 2012 and 178.6 per cent. in 2014 over 2013 and no decline in the number of cases thereafter.”[20]

Be that as it may, the Supreme Court, in the matter of Machhi Singh vs. State of Punjab[21], held that when the community feels that for the sake of self-preservation the killer has to be killed, the community may well withdraw the protection by sanctioning the death penalty. But the community will not do so in every case. It may do so in rarest of rare cases when its collective conscience is so shocked that it will expect the holders of the judicial power centre to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty. The same analogy has been reiterated by the Supreme Court in the matter of Devender Pal Singh vs. State (NCT of Delhi)[22] wherein it was held that when the collective conscience of the community is so shocked, the court must award death sentence.

In the above backdrop, a strong need was stated and sought to take stringent measures to deter the rising trend of child sex abuse in the country, the proposed amendments to the said Act make provisions for enhancement of punishments for various offences. Hence, Section 6 of the Principal Act was substituted introducing ‘death penalty’ with new section vide Clause 4 of the Bill ,2019 which reads as follows:

“Sec. 6.(1) Whoever commits aggravated penetrative sexual assault shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of natural life of that person, and shall also be liable to fine, or with death.”[23]

PROVISION FOR SPECIAL COURTS

• The POCSO Act provided provisions and guidelines for the establishment of Special Courts for speedy trial of cases exclusively related to sexual offences against children.
• The Special Courts or child-friendly courts as they are called, have been created keeping in mind the best interests of the children. A Special Court is a court to be set up under section 28 of the POCSO Act and Special Courts are vested with special powers to decide only cases under the POCSO Act.
• To try the offences under POCSO Act, the State Government shall in consultation with the Chief Justice of the High Court designate for each district a Court of Session to be a Special Court. Further if a court of session is notified as a children’s court under commission of protection of child right act or
• Special court designated for similar purposes under any other law such court shall be deemed to be a special court
• May take cognizance of any offence, without accuse being committed to it for trial, without the accuse being to it for trial upon receiving a complain of facts which constitute such offence or upon a police report of such fact. (sec-33(1))
• Section 32 of the POCSO Act says that the State Government shall, by notification in the Official Gazette, appoint a Special Public Prosecutor for every Special Court for conducting cases under the Act.
• He shall be deemed to be a public servant and he had been in practice for not less than 7-years as an advocate

Measures to be taken by Special Court during trial

• The identity of the child should not be disclosed.
• Frequent breaks during trial should be permitted to the child
• Create a child-friendly atmosphere by allowing a family member or any person the child trust to be present
• Ensure that the child is not summoned to testify time and again
• Ensure that the dignity of the child is maintained by disallowing aggressive questioning or character assassination of the child.
• Ensure that the child victims should not be brought through the common corridor and from the same entrance as the abuser into the Courtroom which undermines the dignity of the child victim
• Ensure the identity of the child is not disclosed during the investigation or trial As far as possible, ensure that the trial is completed within one year from the date of taking cognizance of the offence.
• The trial at the Special Court must be conducted in-camera and in the presence of the child’s parents or any other person of the child’s choice.
• During the course of the trial, all questions that the Special Public Prosecutor or the counsel for the accused, have for the child should be communicated to the Special Court, who in turn will put the questions to the child.
• Under Section 35 of the Act, the evidence of the child should be recorded within a period of thirty days of the Special Court taking cognizance of the offence. Any reasons for delay in doing so, should be recorded.
• The Special Court should ensure that the child is not exposed to the accused, and arrange for the accused to hear the child’s statement and communicate with his lawyer. This is typically done by recording the evidence through video-conferencing or by using single visibility mirrors or curtains.
• While recording the evidence of a child with mental or physical disability, the assistance of a qualified special educator or a person familiar with the manner of communication of the child or an expert in that field, can be sought as stated in Section 26 of the Act.

Though the Act has envisaged the provision for compensation of victims under the Act but there were no such fixed parameter/scale of award. Hence, it was at the discretion of the courts or were forwarded to the District Legal Service Authority wherein the compensation is disbursed as per victim compensation fund. Due to this ambiguity, the courts have faced dilemma. Below mentioned are few important judgments wherein compensation to the victim under the Act is discussed in details.

The Hon’ble Supreme Court in the case of  Ankush Shivaji Gaikwad v. State of Maharashtra AIR 2013 SC 2454 held that“…unless Section 357 is read to confer an obligation on Courts to apply their mind to the question of compensation, it would defeat the very object behind the introduction of the provision.”

“…compensation is not ancillary to other sentences but is in addition to other sentences.”

In Re: Indian Woman says gang-raped on orders of Village Court published in Business & Financial News dated 23.01.2014 (2014) 4 SCC 786, the Hon’ble Supreme Court held that

“There is a statutory duty upon the State, under Section 357A of CrPC, to award compensation to victims of crime. A new Section 357A was introduced to the Criminal Procedure Code in order to cast a responsibility on the State Governments to formulate Schemes for compensation to the victims of crime in coordination with the Central Government. Unlike Section 357, the onus was not simply on the offender to pay the compensation, but had been put on the District Legal Service Authority or State Legal Service Authority to determine the quantum of compensation in each case.”

It is noteworthy to mention that the Supreme Court in the case of Suresh &Anr. v. State of Haryana (Crl) No. 420 of 2012 held that:

“The object and purpose of the provision of Section 357A CrPC is to enable the Court to direct the State to pay compensation to the victim where the compensation under Section 357 was not adequate or where the case ended in acquittal or discharge and the victim was required to be rehabilitated.”

Due to the prevailing ambiguity in providing assistance to the victims wherein the courts faced dilemma for ordering compensation from relevant authority, the Central Government enacted the POCSO Rules, 2020. Following are the heads under which the PocsoRules, 2020 have been laid down are as follows:

• Awareness generation and capacity building
• Procedure regarding care and protection of child
• Interpreters, translators, special educators, experts and support persons
• Medical aid and care
• Legal aid and assistance
• Special relief
• Compensation
• Procedure for imposition of fine and payment thereof
• Reporting of pornographic material involving a child
• Monitoring of implementation of the Act

Protection of Children from Sexual Offences Rules, 2012 are hereby repealed, except as respects things done or omitted to be done before such repeal.

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[1]Section 2 of POCSO Act, 2012

[2]Sections 3, 5, 7, 9 & 11 of POCSO Act, 2012

[3]Section 16 of POCSO Act, 2012

[4]Section 13 of POCSO Act, 2012

[5]Section 28 of POCSO Act, 2012

[6] Section 35 of POCSO Act, 2012

[7]Section 19 of POCSO Act, 2012

[8]Section 19(5) of POCSO Act, 2012

[9]Section 19(6) of POCSO Act, 2012

[10]Section 20) of POCSO Act, 2012

[11]Section 21(1) of POCSO Act, 2012

[12]Section 21(1) of POCSO Act, 2012

[13]Section 21(2) of POCSO Act, 2012

[14]Section 21(3) of POCSO Act, 2012

[15]Section 22(1) of POCSO Act, 2012

[16]Section 22(3) of POCSO Act, 2012

[17]Section 19(7) of POCSO Act, 2012

[18]Section 23 of POCSO Act, 2012

[19]The Protection of Children from Sexual Offences (Amendment) Bill, 2019, Bill No. 1 of 2019 as introduced in Lok Sabha. Available at: http://164.100.47.4/BillsTexts/LSBillTexts/Asintroduced/1_2019_LS_Eng.pdf.

[20]Ibid at ‘Statement of Objects and Reasons’.

[21]Machhi Singh vs. State of Punjab [1983 (3) SCC 470]

[22]Devender Pal Singh vs. State (NCT of Delhi) [AIR 2002 SC 1661]

[23]Section 6 – Punishment for aggravated penetrative sexual assault. (Amended provision of the Act)