Introduction to Protection Of Children From Sexual Offences Act 2012

Pocso Act is a gender-neutral legislation

In the case of Alakh Alok Srivastava Vs. Union of India & Ors. (2018) 17 SCC 291, in para 14 and 20, it is observed as under:

“14. At the very outset, it has to be stated with authority that the Pocso Act is a gender-neutral legislation. This Act has been divided into various chapters and parts therein. Chapter II of the Act titled “Sexual Offences Against Children” is segregated into five parts. Part A of the said Chapter contains two sections, namely, Section 3 and Section 4. Section 3 defines the offence of “Penetrative Sexual Assault” whereas Section 4 lays down the punishment for the said offence. Likewise, Part B of the said Chapter titled “Aggravated Penetrative Sexual Assault and Punishment therefor” contains two sections, namely, Section 5 and Section 6.

The various subsections of Section 5 copiously deal with various situations, circumstances and categories of persons where the offence of penetrative sexual assault would take the character of the offence of aggravated penetrative sexual assault. Section 5(k), in particular, while laying emphasis on the mental stability of a child stipulates that where an offender commits penetrative sexual assault on a child, by taking advantage of the child’s mental or physical disability, it shall amount to an offence of aggravated penetrative sexual assault.” [Nawabuddin Vs. State of Uttarakhand-08/02/2022]

THE PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT, 2012 [POCSO]

Statement and Objects and Reasons of POCSO Act

In the case of Eera Vs. State (NCT of Delhi), (2017) 15 SCC 133, Apex court Court has observed on the Statement and Objects and Reasons of POCSO Act in para 20 as under:

“20. The purpose of referring to the Statement of Objects and Reasons and the Preamble of the Pocso Act is to appreciate that the very purpose of bringing a legislation of the present nature is to protect the children from the sexual assault, harassment and exploitation, and to secure the best interest of the child. On an avid and diligent discernment of the Preamble, it is manifest that it recognises the necessity of the right to privacy and confidentiality of a child to be protected and respected by every person by all means and through all stages of a judicial process involving the child.

Best interest and wellbeing are regarded as being of paramount importance at every stage to ensure the healthy physical, emotional, intellectual and social development of the child. There is also a stipulation that sexual exploitation and sexual abuse are heinous offences and need to be effectively addressed. The Statement of Objects and Reasons provides regard being had to the constitutional mandate, to direct its policy towards securing that the tender age of children is not abused and their childhood is protected against exploitation and they are given facilities to develop in a healthy manner and in conditions of freedom and dignity.

There is also a mention which is quite significant that interest of the child, both as a victim as well as a witness, needs to be protected. The stress is on providing childfriendly procedure. Dignity of the child has been laid immense emphasis in the scheme of legislation. Protection and interest occupy the seminal place in the text of the Pocso Act.”

9.2 In the case of Alakh Alok Srivastava Vs. Union of India & Ors. (2018) 17 SCC 291, in para 14 and 20, it is observed as under:

“14. At the very outset, it has to be stated with authority that the Pocso Act is a gender neutral legislation. This Act has been divided into various chapters and parts therein. Chapter II of the Act titled “Sexual Offences Against Children” is segregated into five parts. Part A of the said Chapter contains two sections, namely, Section 3 and Section 4. Section 3 defines the offence of “Penetrative Sexual Assault” whereas Section 4 lays down the punishment for the said offence. Likewise, Part B of the said Chapter titled “Aggravated Penetrative Sexual Assault and Punishment therefor” contains two sections, namely, Section 5 and Section 6.

“20. Speaking about the child, a threeJudge Bench in M.C. Mehta v. State of T.N. (1996) 6 SCC 756

“1. “child is the father of man”. To enable fathering of a valiant and vibrant man, the child must be groomed well in the formative years of his life. He must receive education, acquire knowledge of man and materials and blossom in such an atmosphere that on reaching age, he is found to be a man with a mission, a man who matters so far as the society is concerned.”

9.3 As it can be seen from the Statement of objects and reasons of the POCSO Act since the sexual offences against children were not adequately addressed by the existing laws and a large number of such offences were neither specifically provided for nor were they adequately penalised, the POCSO Act has been enacted to protect the children from the offences of sexual assault, sexual harassment and pornography and to provide for establishment of special courts for trial of such offences and for matters connected therewith and incidental thereto.

9.4 At this stage, it is required to be noted that the POCSO Act has been enacted keeping in mind Article 15 and 39 of the Constitution of India. Article 15 of the Constitution, inter alia, confers upon the State powers to make special provision for children.

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. To achieve the goal as per Article 15 and 39 of the Constitution, the legislature has enacted the Protection of Children from Sexual Offences Act, 2012.

9.5 As noted in the Statement of objects and reasons, as per the United Nations Convention on the Rights of Children, to which India is a signatory to the treaty, the State Parties to undertake all appropriate national, bilateral and multilateral measures to prevent (a) the inducement or coercion of a child to engage in any unlawful sexual activity; (b) the exploitative use of children in prostitution or other unlawful sexual practices; and (c) the exploitative use of children in pornographic performances and materials. Article 19 of the Convention states the following:

1. States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all form/s of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.

2. Such protective measures should, as appropriate, include effective procedures for the establishment of social programmes to provide necessary support for the child and for those who have the care of the child, as well as for other forms of prevention and for identification, reporting, referral, investigation, treatment and followup of instances of child maltreatment described heretofore, and, as appropriate, for judicial involvement.

The general comment No.13 on the Convention specifically dealt with the right of the child to freedom from all forms of violence and it has observed that “no violence against children is justifiable; all violence against children is preventable”

10. Keeping in mind the aforesaid objects and to achieve what has been provided under Article 15 and 39 of the Constitution to protect children from the offences of sexual assault, sexual harassment, the POCSO Act, 2012 has been enacted. Any act of sexual assault or sexual harassment to the children should be viewed very seriously and all such offences of sexual assault, sexual harassment on the children have to be dealt with in a stringent manner and no leniency should be shown to a person who has committed the offence under the POCSO Act.

By awarding a suitable punishment commensurate with the act of sexual assault, sexual harassment, a message must be conveyed to the society at large that, if anybody commits any offence under the POCSO Act of sexual assault, sexual harassment or use of children for pornographic purposes they shall be punished suitably and no leniency shall be shown to them. Cases of sexual assault or sexual harassment on the children are instances of perverse lust for sex where even innocent children are not spared in pursuit of such debased sexual pleasure.

Children are precious human resources of our country; they are the country’s future. The hope of tomorrow rests on them. But unfortunately, in our country, a girl child is in a very vulnerable position. There are different modes of her exploitation, including sexual assault and/or sexual abuse. In our view, exploitation of children in such a manner is a crime against humanity and the society. Therefore, the children and more particularly the girl child deserve full protection and need greater care and protection whether in the urban or rural areas.

Need for Protection

As observed and held by this Court in the case of State of Rajasthan Vs. Om Prakash, (2002) 5 SCC 745, children need special care and protection and, in such cases, responsibility on the shoulders of the Courts is more onerous so as to provide proper legal protection to these children. In the case of Nipun Saxena v. Union of India, (2019) 2 SCC 703, it is observed by this Court that a minor who is subjected to sexual abuse needs to be protected even more than a major victim because a major victim being an adult may still be able to withstand the social ostracization and mental harassment meted out by society, but a minor victim will find it difficult to do so. Most crimes against minor victims are not even reported as very often, the perpetrator of the crime is a member of the family of the victim or a close friend. Therefore, the child needs extra protection. Therefore, no leniency can be shown to an accused who has committed the offences under the POCSO Act, 2012 and particularly when the same is proved by adequate evidence before a court of law.

National Commission for Protection of Child Rights (NCPCR) designated as Monitoring Authority of the Act

The POCSO Act is only applicable to child survivors and adult offenders. In case two children have sexual relations with each other, or in case a child perpetrates a sexual offence on an adult, the Juvenile Justice (Care and Protection of Children) Act, 2015, will apply.

PUNISHMENT AT A GLANCE [ SIX OFENCES]

Penetrative Sexual Assault (Section 3) on a child — Not less than seven years which may extend to imprisonment for life, and fine (Section 4)
Aggravated Penetrative Sexual Assault (Section 5) — Not less than ten years which may extend to imprisonment for life, and fine (Section 6)
Sexual Assault (Section 7) i.e. sexual contact without penetration — Not less than three years which may extend to five years, and fine (Section 8)
Aggravated Sexual Assault (Section 9) by a person in authority — Not less than five years which may extend to seven years, and fine (Section 10)
Sexual Harassment of the Child (Section 11) — Three years and fine (Section 12)
Use of Child for Pornographic Purposes (Section 13) — Five years and fine and in the event of subsequent conviction, seven years and fine Section 14 (1)

Enhancement of sentence

In the case of Sahab Singh and others vs. State of Haryana, (1990) 2 SCC 385, also after considering the procedure prescribed by Cr.P.C. including Sections 386 and 401 High Court held that the High Court even if no appeal is filed by the State for enhancement of sentence can exercise suo motu power of revision under Section 397 read with Section 401 of Cr.P.C. but before the High Court can exercise its revisional jurisdiction to enhance the sentence, it is imperative that the convict is put on notice. In paragraph 4 this Court laid down following:

“4.Section 374 of the Code of Criminal Procedure (‘the Code’ hereinafter) provides for appeals from conviction by a Sessions Judge or an Additional Sessions Judge to the High Court. Section 377 entitles the State Government to direct the Public Prosecutor to present an appeal to the High Court against the sentence on the ground of its inadequacy. Subsection 3 of Section 377 says that when an appeal has been filed against the sentence on the ground of its inadequacy, the High Court shall not enhance the sentence except after giving to the accused a reasonable opportunity of showing cause against such enhancement and while showing cause the accused may plead for his acquittal or for the reduction of the sentence.

Admittedly no appeal was preferred by the State Government against the sentence imposed by the High Court on the conviction of the appellants under Section 302/149, I.P.C. Section 378 provides for an appeal against an order of acquittal. Section 386 enumerates the powers of the appellate court. The first proviso to that section states that the sentence shall not be enhanced unless the accused has had an opportunity of showing cause against such enhancement. Section 397 confers revisional powers on the High Court as well as the Sessions Court.

It, inter alia, provides that the High Court may call for and examine the record of any proceeding before any inferior criminal court situate within its jurisdiction for the purposes of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed and as to the regularity of any proceedings of any inferior court. Section 401 further provides that in the case of any proceedings, the record of which has been called for by itself or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of appeal by Sections 386,389, 390 and 391 of the Code.

Subsection 2 of Section 401 provides that no order under this Section shall be made to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by Pleader in his own defence. Subsection 4 next provides that where under this Code an appeal lies and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed. It is clear from a conjoint reading of Section 3 77, 386, 397 and 401 that if the State Government is aggrieved about the inade quacy of the sentence it can prefer an appeal under Section 377(1) of the Code.

The failure on the part of the State Government to prefer an appeal does not, however, preclude the High Court from exercising suo motu power of revision under Section 397 read with Section 401 of the Code since the High Court itself is empowered to call for the record of the proceeding of any court subordinate to it. Subsection 4 of Section 401 operates as a bar to the party which has a right to prefer an appeal but has failed to do so but that subsection cannot stand in the way of the High Court exercising revisional jurisdiction suo motu. But before the High Court exercises its suo motu revisional jurisdiction to enhance the sentence, it is imperative that the convict is put on notice and is given an opportunity of being heard on the question of sentence either in person or through his advocate. The revisional jurisdiction cannot be exercised to the prejudice of the convict without putting him on guard that it is proposed to enhance the sentence imposed by the Trial Court.”

AGGRAVATED OFFENCE MEANS[ 14 CASES]

Committed by a person in position of trust or authority such as police/ army/ security personnel, public servants or family members

Committed by persons in management or staff of educational, medical or religious Institution

Committed by persons in management or staff of jail, remand home, protection home, observation home, or any other place of custody or care and protection Offences Covered under the Act:

Gang assault

When offence causes grievous hurt

When offence causes physical or mental disability

When offence is committed taking advantage of child’s mental or physical disability When offence is committed more than once Offences Covered under the Act:
When child is below 12 years of age
When offender is a relative of the child
When attempt is also made to murder the child
When offence is committed and child is made to strip and/ or pared naked in public Offences Covered under the Act:
When committed by a person who has been previously convicted of having committed such an offence, either under this law or any other law
When offence is committed in course of communal or sectarian violence

Procedures and powers of Special Courts :

• Evidence to be recorded within 30 days of the Special Court taking cognizance of the offence (Section 35)
• Completion of trial by Special Court within a year from the date of taking cognizance of offence (Section 35)

Role of Juvenile Justice functionaries under the POCSO Act.

(i) SJPU or local police on receiving information relating to an offence that has been or likely to be committed,should take following steps:

• Record the complaint; {Section 19 (2) (a)}

• Assess whether the child is in need of care and protection; {Section 19 (5)}

• Facilitate Emergency Medical Care; {Rule 5 & Section 19 (5)}

• Facilitate Medical Examination; {Rule 4 (2) (c) & Section 19 (5)}

• Facilitate Recording of Statement by Magistrate (Section 25)

• Report to the Special Court and Child Welfare Committee; {Section 19 (6)}

• Provide information to the informant and victim.

(ii) District Child Protection Unit (DCPU) shall maintain a register containing contact details of interpreters, translators and special educators in their district under Rule 3 (1), POCSO Rules and should share the same with SJPU, local police, magistrate and Special Court to enable them to make available such services as and when required.

Guidelines

Guidelines for District Magistrates and Senior Superintendent of Police for cases under Juvenile Justice Care and Protection Act, 2015 and POCSO Act 2012

Guidelines for the Use of Professionals and Experts under the POCSO Act, 2012

THE PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT, 2012 [POCSO]