Protection of Children from Sexual Offences Act, 2012
This article is an overview of the Protection of Children from Sexual Offences Act, 2012. The Necessity of the Protection of Children from Sexual Offences Act, 2012 Before the year 2012, there was no such Act in existence that was very specific to the problem of sexual harassment of children. The existing Act did not cover sexual assault… Read More »
This article is an overview of the Protection of Children from Sexual Offences Act, 2012.
The Necessity of the Protection of Children from Sexual Offences Act, 2012
Before the year 2012, there was no such Act in existence that was very specific to the problem of sexual harassment of children. The existing Act did not cover sexual assault and sexual offences against children and moreover, male children were not covered under any of the existing laws of that time. It was very important that laws specifically focusing on the protection of children from sexual offences be incorporated and brought into place. [1]
With this idea, the POCSO Act, of 2012 came into being. This act covers six different types of offences against children which are as follows:
- penetrative sexual assault (Section 3)
- aggravated penetrated sexual assault (Section 5)
- Sexual Assault (Section 7)
- Aggravated sexual assault (Section 9)
- Sexual Harassment of the child (Section 11)
- Use of child for pornographic purposes (Section 13)
The offence becomes aggravated penetrated sexual assault when it is committed by a person in a position of trust and authority. Crime committed by police officers, government servants, army officials, medical institutions staff, remand home staff will fall under the purview of aggravated penetrated sexual assault or sexual assault as the case may be. It will also become aggravated in the case of gang assault where the child faces grievous hurt, physical or mental disability once or more than that.
Offence done to a child below 12 years of age makes the child strip, attempt to murder would all fall under the purview of an aggravated offence. The person would be liable for aggravated commission of an offence against the child who has been previously convicted for doing the same offence. [2]
Punishments under the act[3]
This act is very stringent at deciding the punishment that has to be given to the perpetrator of the offender.
The punishment for sexual assault is up to 7 years to imprisonment for life and fine. As per the amendment of the Indian penal code in the year 2018, the provision states that a penalty can even be given to a perpetrator if the offence is committed against a child (female) of 12 years or below. (Section 4)
The Punishment for aggravated penetrative sexual assault is minimal to 10 years of imprisonment which may go up to life imprisonment. (Section 6)
For sexual assault, the punishment is a minimum of three years of imprisonment which can go up to 5 years of imprisonment along with a fine. (Section 8)
The punishment for using the child for pornographic purposes is 5 years if convicted for the first time. If it’s a repeated offence the punishment may extend up to 7 years of imprisonment along with a fine. (Section 14)
The law also states if along with pornographic purposes any of the offences as per the act is committed, the punishment increases as per the gravity of the crime.
The Act is also very specific about providing punishment for storing pornographic material may or may not be for commercial purposes where a child has been used in the creation of the same. The punishment of storing pornographic material can go up to 3 years of imprisonment and is liable to a fine as well. (Section 15)
Other relevant provisions
The burden of proof is shifted on the accused in cases of aggravated penetrative sexual assault, penetrative sexual assault, sexual assault and aggravated sexual assault. In normal jurisprudence, the onus of proof is on the victim but here the perpetrator will have to prove himself and herself not guilty otherwise the law presumes that he is guilty. (Section 3, 5, 7 and 9)
This Act takes abetment very seriously and the punishment of abetting is the same as the actually committed crime punishment. (Section 16)
If a person tries to commit the offence but does not succeed in the actual commission of the offence even then the law will consider this as an attempt of committing the offence and the punishment for the same is half of the actual offence committed. (Section 18)
There is also the provision of monetary and free legal aid present in the act. Child victims can take the assistance of lawyers which would be free of cost. There is also a provision for compensation. Monetary compensation is being levied which are further divided into two parts namely immediate and full compensation as per the gravity of the crime committed against him or her.
At the national level, it is the national commission for protection of child rights who are designated as monitoring authority of the act and is responsible for the proper implementation of the POCSO Act in the whole of the country including states. And at the state level, it is the state commission for the protection of child rights that is responsible for ensuring proper and just implementation of the act and to ensure all POCSO cases are put to trial in the court and the accused are being punished. (Section 43 and 44)[4]
The procedure of reporting cases of sexual offences against children (Section 19)[5]
Under the Act, it is mandatory to report cases of sexual assault. The first point of reporting would be to the local police station or to the special juvenile police unit. Thereafter, the police have to take immediate action or start with the investigation after registering FIR as soon as possible. It is mandatory for the police to provide immediate medical assistance to the child. All the cases of sexual offences that have been registered by the police have to be informed to the CWC and special court within 24 hours of cognizance by the police. The CWC will then take necessary action for the welfare of the child. (Section 19)[6]
There are three categories where the CWC can decide not to send back the child to which it was belonging to. In the cases where the sexual offence is committed by the member of the family where the child is residing the CWC considering the best interest of the child may decide not to send the child back home or the place where the child was presiding before the commencement of the offence.
It is very important to provide immediate medical assistance and medical examination of the child to the victim of sexual assault. Medical examination would be conducted by a lady doctor in cases of the female child. All the forensic material is to be collected at the earliest to make the case ready for prosecution ready.
It is the role of the police to initiate the investigation and record the statements of the child.
As per Section 164 of the Code of criminal procedure, the statement of the child will be recorded in the language spoken by the child.[7]
If a person is engaging in a false complaint to the police with malicious intent then this act will punish the false complainant which would amount to imprisonment of 6 months or fine. In the case where the false complaint is made by the child, then in that case the child would be exempted from any punishment. (Section 22)
In no condition, the media shall disclose the identity of the child and if it has been done then the concerned media community will be punishable and would amount to imprisonment up to 6 months or fine.
The police may also take the help of an interpreter, special educator or counsellor for discussing and having the statement of the child recorded. (Section 26 (2))
The police officer while recording the statement of the child should be in his or her uniform so as to avoid the intimidation which might affect the child leading him or her giving false facts. The police can also in no condition keep the child in the police station overnight. Police have to make sure that the child never comes in contact with the accused. In the cases where the child is not in the physical condition to record a statement in the police station, the police can go to the place where the child is residing and may take the statement in audiovisual means if the child is comfortable. (Section 24)
After the police have initiated the investigation in the case comes the role of special courts which points out the judicial aspect of the act. The act talks about establishing special courts in each district which are also called POCSO Courts in local terms which will have the trial on the cases related to the POCSO matters. (Section 28) The state government has to nominate or appoint special public prosecutors for the POCSO courts. (Section 32)
Whenever the trial of the POCSO case is being done, the repeated cross-examination of the child is not allowed as there cannot be any scope of doing character assassination of the child. The child will be given frequent breaks to make him or her comfortable during the trial. A trial has to be recorded in-camera. (Section 33)
If the sexual assault-related crime has been committed by anybody who is a child himself or herself who is below the age of 18 years, in that case, the procedure would be as per the juvenile justice act amendment 2021.
Conclusion
It is the onus of the centre and state to spread awareness to both, the judiciary, police and the common people about the provision of this act so that the Act can be properly implemented and all the children can be given a safe and protected environment to grow.
References
[1] Ishita Bhatnagar, Child Sexual Abuse in India, Available Here
[2] L.H Rajeshwer Rao, Protection of Children from Sexual Offences Act, 2012, Available Here
[3] Protection of Children from Sexual Offences Act, Available Here
[4] Victim Compensation and rehabilitation under POCSO: A grim reality, but with a sliver of hope, Available Here
[5] Protection of Children from Sexual Offences Act, Available Here
[6] Ganga Madappa, How should a case of child abuse be dealt with under POSCO, Available Here
[7] Ganga Madappa, How should a case of child abuse be dealt with under POSCO, Available Here