LEGISLATIVE COMMENTARY:POCSO

Divyanjali Mishra,

Maharashtra National Law University, Aurangabad

I. ABSTRACT

Until 2012, there was no specific legislation dealing with offenses related to children or child sexual abuse. Because there was no legislation, sexual offenses against children were on the rise. the rise.  In the IPC, the range of sexual violence offenses was limited. Sections 354, 509, 376, and 376 and 377 dealt with such offenses under the IPC. Sections 4(1), 5(d), and 7 of the Immoral Traffic (Prevention) Act, 1956, also dealt with such cases. Apart from rape, all other sexual offenses fall under the category of “outraging the modesty of women”. This is punishable by a maximum of two years and/or a fine. It’s important to note that both males and females have committed sexual offenses against children. However, under the IPC, the sexual offenses are gender-specific, and here the perpetrator can only be a man. There was a growing need for gender-neutral legislation. We enacted POCSO to address this growing need.

II. OBJECTIVES OF POCSO

The following are the objectives of POCSO:

1. To protect children from sexual assault, harassment, pornography, and other sexual offenses.

2. To safeguard the interests of children.

3. To adopt such mechanisms for reporting cases, trials, investigations, medical exams, and recording evidence that are child-friendly.

4. To provide speedy trials to such children through designated courts.

III. CHAPTERS AND RANGE OF POCSO

Important Dates:

1. It was Act No. 32 of 2012.

2. It got the president’s assent on June 19, 2012.

3. It was enforced on November 14, 2012.

4. In 2019, a major amendment made major changes to the act.

The Protection of Children from Sexual Offenses Act, 2012, consists of nine chapters and 46 Sections.

S. No.

Chapter Name

Sections Covered

1.

Preliminary

1-2

2.

Sexual offenses against children

3-12

3.

Using Children for Pornographic Purposes and Punishment Therefor

13-15

4.

Abetment of and Attempt to Commit an Offense

16-18

5.

Procedure for Reporting of Cases

19-23

6.

Procedures for Recording the Statement of the Child

24-27

7.

Special Courts

28-32

8.

Procedure and Powers of Special Courts and Recording of Evidence

33-38

9.

Miscellaneous

39-46

IV. ANALYSIS OF POCSO

4.1 CONSTITUTION, INTERNATIONAL CONVENTION, AND POCSO

Article 15(3) of the Constitution of India states that “nothing in this article shall prevent the State from making any special provision for women and children”. To protect children from such sexual offenses, the legislation makers enacted a special law for children with the full name Protection of Children from Sexual Offenses Act, 2012. Article 15(3) empowers the state to make special provisions for children. The General Assembly of the United Nations adopted the Convention on the Rights of the Child, which the Government of India acceded to on December 11, 1992. Reading Article 15(3), which is a fundamental right, along with Article 39 (Directive Principle of State Policy), the parliament enacted the special legislation for children, which is the Prevention of Children from Sexual Offenses Act, 2012.

4.2 CHAPTER I AND II

Chapter 1 of the POCSO Act deals with the Act’s short title, extent, and commencement, as well as the definition clause. After Article 370 was removed from the Constitution of India, this Act became applicable to the entire country. Certain important definitions under Section 2 of the POCSO Act are as follows:

1. Section 2(1)(d) provides the definition of “child”. This Act defines a “child” as any person under the age of eighteen.

2. The 2019 amendment led to the addition of Section 2(1) (da). It defined “child pornography”. Accordingly, any visual depiction of sexually explicit conduct involving a child, which includes a photograph, video, digital, or computer-generated image indistinguishable from an actual child and an image created, adapted, or modified but appearing to depict a child, Chapter 3 of the same act, Sections 13–15, deals exclusively with this definition.

3. “Domestic violence” is defined under Section 2(1)(e). It has the same definition as is mentioned under Section 2(f) of the Protection of Women from Domestic Violence Act, 2005, which means a relationship between two persons who live or have, at any point in time, lived together in a shared household when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption, or are family members living together as a joint family.

4. Section 2(1)(h) defines “religious institution”. It has the same definition as is mentioned under the Religious Institutions (Prevention of Misuse) Act, 1988. Accordingly, a religious institution means an institution for the promotion of any religion or persuasion and includes any place or premises used as a place of public religious worship, by whatever name or designation is known.

5. Other definitions that are not defined under this act will have the meaning mentioned under the Indian Penal Code 1860, the Code of Criminal Procedure 1973, the Juvenile Justice (Care and Protection of Children) Act 2015, and the Information Technology Act 2000.

6. Many of the definitions mentioned under Section 2 are further explained in detail in the upcoming Sections of POCSO.

4.3. CHAPTERS III

Chapters III and IV deal with the explanation of sexual offenses against children, using children for pornographic purposes, and punishment. Sections 13 to 18 cover the same. Under the IPC, there are many Sections that deal with sexual offenses. However, the definition of sexual offenses under this act is more comprehensive and has a wider ambit comparatively.

Here, sexual offenses are categorized in three ways:

1. Penetrative sexual assault and aggravated penetrative assault.

2. Sexual assault and aggravated sexual assault.

3. Sexual Harassment.

Penetrative Sexual Assault (Section 3) and Aggravated Penetrative Assault (Section 5)

1. If the person penetrates his penis into the vagina, mouth, urethra, or anus of a child or makes the child do so with any other person, the extent of penetration is irrelevant[i].

2. If the person inserts another object into the above-mentioned body parts or makes the child do so with any other person,

3. If any manipulation of any body part is done to facilitate penetration into the abovementioned body parts,

4. If a person applies his mouth to the penis, vagina, or urethra of a child or makes him do so.

All the actions mentioned above amount to penetrative sexual assault. However, it is noteworthy that under sub-sections (a), (b), and (c), the victim can only be a female, but in sub-section (d), the victim can also be a male. This makes the Section different from what is mentioned under the IPC.

• Sexual Assault (Section 7)

Again, in this Section, the victim can be male or female. If a person touches the vagina, penis, anus, or breast of the child or makes the child do so with him or her or any other person, all physical contacts with sexual intention, other than those involving penetration, fall under the category of sexual assault. However, in the case of Satish Ragde v. State of Maharashtra[ii], it was made clear that what is important in cases of sexual assault is sexual intent and not ‘skin to skin’ contact.

• Sexual Harassment (Section 11)

If a person with sexual intent utters any words, makes any sound, makes any gesture, exhibits any object or any body part with the intention that such actions must be perceived by the child, or makes the child exhibit his or her body or any part of the body, If the person shows any object to the child for pornographic purposes, entices him or her for pornographic purposes, or threatens to use the child's body (whole or in part) in media,.

All such acts amount to sexual harassment.

·         Aggravated sexual offenses (penetrative sexual assault and sexual assault) are mentioned under Sections 5 and 9.

To make an offense fall under the category of aggravated sexual offense, it must satisfy one of the following conditions:

1. If a police officer, member of the armed forces, or member of the security forces commits penetrative sexual assault or sexual assault within the limits of a police station, or premises where he is appointed, or premises of any station house, or during his course of duty, or at any place where he is known, he is identified as a police officer.

2. If a public servant commits such an offense,

3. A person on the management or on the staff of a jail, remand home, protection home, observation home, or other place of custody, care, or protection established by any law in force commits such an offense.

4. If a person on the management or staff of a hospital (government or private), or of an educational institution or religious institution, commits such offense in that institution or place,

5. A gang offense was committed.

6. Committing such offenses using deadly weapons, fire, heated substances, or corrosive substances, or by causing grievous hurt, bodily harm, or injury to the sexual organs of the child,

7. If a person commits such an offense and that results in physical incapacity in a child, mental illness[iii], causes impairment of any kind (temporary or permanent), in the case of a female child, makes her pregnant, inflicts the child with HIV or any life-threatening disease that may impair the child (permanently or temporarily), or causes the death of the child,.

8. If a person takes advantage of the child’s mental or physical disability,

9. If the offense is committed more than once, or is committed by a relative of that child, or by the owner or manager of an institution providing services to the child, or by a person in a position of trust or authority,

10. Committing such offense on a pregnant child, or after committing such offense, attempts to murder the child, or commits such offense during communal violence or a natural calamity,

11. Makes the child strip or parade naked in public,

If any person commits an offense in any of the above-mentioned situations, then it amounts to an aggravated form of penetrative sexual assault or sexual assault.

This Section, while providing legal recourse to a sexually assaulted child, also keeps a check on the people in authority. If such persons in authority commit such offenses, then that will amount to an aggravated sexual offense, and the person will be punished severely.

Below is a table for a better understanding of these Sections along with their punishments:

Sexual offense (along with Section)

Corresponding Punishment (with Section)

Penetrative Sexual Assault (Section 3)

Punishment (Section 4): imprisonment (of either description) not less than 10 years, which may extend to imprisonment for life + fine.

If committed on a child below 16 years, a minimum of 20 years imprisonment (of either description), which may extend to life imprisonment + fine.

 

Aggravated Penetrative Sexual Assault (Section 5)

Punishment (Section 6): 20 years minimum rigorous imprisonment, which may extend to life imprisonment + fine or death 

Sexual Assault (Section 7)

Punishment (Section 8): minimum 3 years imprisonment of either description, which may extend to 5 years + fine

Aggravated Sexual Assault (Section 9)

Punishment (Section 10): imprisonment (of either description) for a minimum of 5 years, which may extend to 7 years plus a fine.

Sexual Harassment (Section 11)

Punishment (Section 12): imprisonment (of either description), which may extend to 3 years plus a fine.

Sections 13 to 15, the use of children for pornographic purposes and its punishment are mentioned. Such an offense can be committed by any person. Section 13 defines the use of a child for pornographic purposes, and Section 14 mentions its punishment. Section 15 punishes a person even for storing pornographic material involving children. This imposes a liability on every person to check whether, through any media or other means, they are storing such material. If any person is found in possession of it, they will be punished under Section 15.

4.4  CHAPTER IV

This chapter deals with abetment and attempts to commit an offense. Sections 16 to 18 deal with it. This Section must be read with Sections 107, 120A, and 120B of the IPC for further understanding. A person commits an offense if:

1. That person instigates any person to do that offense.

2. Engages in any conspiracy with one or more persons,

3. Intentionally aids the doing of that offense (by an act or illegal omission).

Punishment for abetment is imprisonment (of either description) for a term that may extend to 14 years plus a fine. Even an attempt to commit abetment is punishable.

4.5  CHAPTER V AND VI

These two chapters deal with procedures for reporting cases and procedures for recording the statements of the child. Any person who has apprehension, or if the offense is likely to be committed or has been committed, can report that offense to the special juvenile police unit or the local police. The whole procedure is child-friendly. The whole report must be recorded in simple language so that the child understands the content being recorded. If the contents are recorded in another language, then that must be translated into a language that is understandable to the child. Immediate arrangements must be made to give that child such care and protection, including admitting the child into a shelter home or to the nearest hospital. The whole arrangement must be made within 24 hours.

It is the legal duty of the personnel of the media, hotel, lodge, hospital, club, studio, and photographic facilities to provide information to the Special Juvenile Police Unit or to the local police if they encounter any material or object that is sexually exploitative of the child[iv]. And if the personnel fail to report the cases, they will be liable for imprisonment of either description, which may extend to six months, a fine, or both.

4.6  DUTIES OF THE POLICE OFFICER AND MAGISTRATE (DURING RECORDING OF STATEMENT[v])

1. The statement should be recorded at the residence of the child, at a place where he usually resides, or at a place of his choice.

2. The statement should be recorded, as far as practicable, by a woman police officer not below the rank of sub-inspector.

3. The police officer should not be in uniform while recording the statement. This should be read with Section 41B CrPC.

4. The police officer doing the investigation must ensure that, at no point in time, the child comes into contact with the accused in any way.

5. No child should be detained in the police station at night for any reason. This Section should be read with 46 CrPC.

6. The police officer should ensure that the identity of the child is protected from public media.

7. The police officer or magistrate should record the statement given by the child in the presence of the child's parents or any other trustworthy person.

8. The magistrate or the police officer may seek the assistance of a translator or an interpreter if required while recording the child's statement. They can seek the assistance of a special educator or any person familiar with the manner of communication of the child.

9. The magistrate or the police officer shall ensure that the statement of the child is recorded by audio-video electronic means, as far as possible.

All the parties will be jointly and severally liable in cases dealing with Section 23 of this Act, which deals with the procedure for media[vi].

In the case of State of Karnataka v. Shivanna[vii], a detailed explanation regarding the recording of the statement was given.

4.7  SPECIAL COURTS, ITS POWERS, AND PROCEDURE

Section 28 specifies that a special court must be established for dealing with cases under this act. This should be done to ensure a speedy trial. A court of session is to be established as a special court to try the case under this act. A special public prosecutor should be appointed in every special court to conduct cases related to this act. The qualifications for the same are also mentioned under Section 32(2).

· POWERS OF THE SPECIAL COURTS

1. The Special Court may take cognizance of any offense without the accused being committed to it for trial.

2. The special court may permit frequent breaks for the child during the trial.

3. The court shall create a child-friendly atmosphere by allowing only those members in whom the child has trust.

4. The court shall ensure that the child is not called repeatedly to testify in court.

5. The court shall not permit aggressive questioning or character assassination of the child.

6. The court should ensure that the dignity of the child is maintained at all times during the trial.

7. The court should ensure that the identity of the child is not disclosed at any time during the course of an investigation or trial.

8. The court shall ensure that the child is not exposed to the accused at the time of testifying.

9. The evidence of the child should be recorded within a period of 30 days[viii].

10. The court must ensure that the trial gets completed within a period of one year from the date of taking cognizance of the offense[ix].

11. The court should try cases in camera and in the presence of the parents of the child or any other trustworthy person[x].

4.8  CHAPTER IX

This chapter deals with the miscellaneous Sections. Here, under Section 40, the right of a child to seek the assistance of a legal practitioner is mentioned. Also, it is the duty of the central and every state government to ensure that the provisions of this act are given wide publicity through the media and that the concerned officers are imparted periodic training on matters related to the implementation of the provisions of the act[xi].

V. CASES

In the case of Ramesh Tukaram v. State of Maharashtra[xii], it was laid down that a child born out of a POCSO crime is a “victim” as defined under Section 2(wa) of the CrPC. In this case, the 15-year-old rape victim died four days after childbirth in 2015.

The Allahabad High Court ruled that a victim of rape cannot be compelled to undergo a DNA test to determine the paternity of her child[xiii].

In Sudhir & Anr. v. State of Maharashtra[xiv], the court held that in order to complete the offense of rape, insertion or penetration of any kind is a pre-requisite. Merely touching the private part of the victim would not amount to rape.

VI. CONCLUSION

In conclusion, it is a comprehensive act dealing with cases of sexual offenses against children. The procedures laid down in it are child-friendly, and courts are established to ensure speedy trial. This legislation is gender-neutral, meaning that the victim can be a boy or girl, provided that he or she is under the age of 18. Complying with the provisions of the Constitution and international conventions, this legislation was enacted to address the increasing sexual crime against children.

REFERENCES 

1.      Protection Of Children from Sexual Offences Act, 2012.

2.      Indian Penal Code, 1860.

3.      Constitution of India, 1950.

4.      Immoral Traffic (Prevention) Act, 1956.

5.      Code of Criminal Procedure, 1973.

[i] Ram Nawal v. State, 2014 AIR SC 3607, Chandra Prakash Sharma v. State of UP & Anr., 2023 AHC 138451.

[ii] Satish Ragde v. State of Maharashtra, 2021 SCC OnLine 66.

[iii] Mental Health Act 1987, § 2(l).

[iv]Protection of Children from Sexual Offences Act, 2012, § 20.

[v]Protection of Children from Sexual Offences Act, 2012, § 24.

[vi] Nipun Saxena v. Union of India, 2019 SCC 2 703.

[vii] State of Karnataka v. Shivanna, 2014 SCC ONLINE SC 394.

[viii] Protection of Children from Sexual Offences Act, 2012 § 36.

[ix] Protection of Children from Sexual Offences Act, 2012 § 35(1).

[x] Protection of Children from Sexual Offences Act, 2012 § 35(2).

[xi] Protection of Children from Sexual Offences Act, 2012 § 37.

[xii] Ramesh Tukaram v. State of Maharashtra, 2022 SCC ONLINE BOM 37.

[xiii] Gulafsa Begum v. State of UP, 2021 SCC ONLINE ALL 850.

[xiv] Sudhir & Anr. v. State of Maharashtra, AIR 2015 SC 3665.