October 19, 2021

POCSO Act 2012

Introduction

Children are the upcoming of India and have got protection under various laws implicitly or explicitly. The Protection of Children from Sexual Offences Act, 2012 (POCSO) is sanctioned with the major intention of protection of children from various kinds of sexual abuses and offences. Before POCSO Act, 2012, the cases of child sexual abuse were sort out under the sections of the Indian Penal Code, 1860.

While associated with an important issue of “Punishing an adolescent boy who comes into a relationship with a minor girl by treating him as an offender, was never the aim of the POCSO Act” in the case of Vijayalakshmi and Another v. State Rep. by Inspector of Police and Another 2021 SCC OnLine Mad 317, the court has clarified the very principle of the POCSO Act, 2012.The Act has come into being with effect from 14th November, 2012 with the Rules framed under it.

Short Title, Extent and Commencement

This Act is called as the Protection of Children from Sexual Offences Act, 2012, it applies to the whole of India, except the State of Jammu and Kashmir and shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint.

Definitions

Following are the terms defined under this ACT-

  1. Aggravated penetrative sexual offences has the same meaning as assigned to it in section 5;
    1. Aggrevated Serxual Assault has the same meaning as assigned to it in section 5.
    1. “Armed Forces or Security Forces” means Armed Forces of the Union or Security Forces or police forces, as specified in the Schedule.
    1. “Child” means any person below the age of eighteen years.
    1. “Domestic Relationship” shall have the same meaning as assigned to it in clause (f) of section 2 of the Protection of Women from Domestic Violence Act, 2005 (43 of 2005).
    1. Penetrative Sexual Assault has the meaning as assigned to it in section 3.
    1. “Prescribed” means prescribed by rules made under this act.
    1. “Religious Institution” shall have the same meaning as allocated here to it in the Religious Institutions (Prevention of Misuse) Act, 1988 (41 of 1988).
    1. “Sexual Assault” has the same meaning as alloted to it in section 7.
    1. “Sexual Harassment” has the same meaning as allocated to it in section 11.
    1. “Shared Household” means a household where the person charged with the offence stays or has stayed at any time in a domestic relationship with the child.
    1. “Special Court” means a court designated as such under section 28.
    1. “Special Public Prosecutor” means a Public Prosecutor appointed under section 32.

The words and expressions used here and not defined but defined in the Indian Penal Code

(45 of 1860), the Code of Criminal Procedure, 1973 (2 of 1974),the Juvenile Justice (Care and Protection of Children) Act, 2000 (56 of 2000) and the Information Technology Act, 2000 (21 of 2000) shall have the meanings respectively allocated to them in the said Codes or the Acts.

Sexual Offences against Children

  • Sexual Assault- Whoever with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the same or any other act with same intention without penetration under section 7.
  • Punishment For Sexual Assault- shall be punished with imprisonment for a term which shall not to be less than three years which may extend to five years and also liable for fine under section 8
  • Sexual Harassment- Whoever utters any word or make any sound or any similar activities and makes a child exhibit his body or any part of his body is liable for committing Sexual Harassment.
  • Punishment for Sexual Harassment- whoever commits the sexual harassment upon a child shall be punished with imprisonment for a term which may extend to three years and shall be liable to fine.

Using Child for Pornographic Purposes and Punishment  Therefore

  • Use of Child for Pornographic – whoever , uses a child in any form of media for the reason of sexual satisfaction, which includes -Depiction of sexual body parts of a child. Utilisation of a child involved in real or false sexual acts ( with or without penetration).The offensive representation of a child.shall be responsible of the offence of using a child for pornographic obejective under section 13.
  • Punishment – Whoever uses a child for any pornographic reason shall be punished with imprisonment which may extend to five years and shall be liable to fine and in the event of second or subsequent sentence with imprisonment for a term which may extend to seven years and liable to fine.

Procedure for Reporting Of Cases

  • Reporting of Offences- He/She shall provide information to the Special Juvenile Police Unit or the Local Police.
  • Punishment for False Complaint Or False Information- Any person to be punished who have committed offence under section 3,5,7 and section 9 with the intention to humiliate,extort and threaten or defame him, shall be punished with imprisonment for a term which may extend to six months or fine or both.

Procedures for Recording Statement of the Child

  •   Recording of Statement of a Child – The statement of the child is recorded at the place of her/his choice apart from that the statement is recorded at child’s residence or at child’s current residing place. The statement is recorded by practicable woman police officer whose designated rank is minimum of sub- inspector and also during the time of recording the officer should not be in uniform .While examining the child it must be taken care that the child does not come in contact of the accused at any point of time and in the night the child should not be kept in the police station for any reason. The identity of the child must be protected from public media by the police officer, unless in the interest of the child permitted by the Special Court.
  • Recording of Statement of a Child by Magistrate- If the statement of the Child is recorded under section 164 of CrPC, 1973, the Magistrate shall record the statement as spoken by the child. In the presence of the Advocate of the accused it shall not apply. The copy of the document shall be provided to the Child and his parents or guardians by the Magistrate under section 207 of the Code when the final report is filed by the police under section 173 of that Code.
  • Medical Examination of a Child- If any FIR or Complaint is not registered under this ACT against the offence committed, the medical examination of the child must be done in reference to section 164A of the CrPC, 1973. If the victim is a girl child the examination shall be conducted by a female doctor. Examination shall be conducted in presence of the victim’s family.

Special Courts

  • Designation of Special Courts- For speedy trial, the State Government in consultation with the Chief Justice of the High Court, converts a Court of Session to Special Courts for the trial of the offences. It is done after the notification in the Official Gazette designated for each district.
  • Presumption as to certain offences- If a person is charged for committing or abetting or attempting to commit any offence defined in section 3,5,7, & 9 of this ACT, the person will be assumed by the Special Court, that he/she has committed/abetted/attempted to commit the offence as the case may be unless the converse is proved.
  • Special Public Prosecutor- A Special Public Prosecutor who has been in practice for minimum 7years as an Advocate is appointed by the State Government under the notification of Official Gazette.

Procedure and Powers of Special Courts and Recording of Evidence

  • Procedure and Powers of Special Court- The Court may take cognizance of offence while receiving a complaint which includes facts of such crime or of a police report, without processing the trial of the accused . While recording the examination of the child, the Special Public Prosecutor appearing for the accused in turn shall put those questions to the child. Also the Court shall create a child-friendly atmosphere and make sure that Child is not called repeatedly to testify.
  • Procedure in Case of Commission of Offence by Child and Determination of Age by Special Court- If any offences is committed by a child under this ACT , such child shall be deal under the provisions of the Juvenile Justice (Care and Protection of Children) ACT, 2000. If any question arises during proceedings about the age of such a person ,then the reason should be recorded in writing. No order of Special Court shall be deemed to be invalid.
  • Period for recording of Evidence of Child and Disposal of Case- The evidence of the child shall be recorded within a month of the Court taking cognizance of the offence and in case of delay the reason may be recorded by the Special Court. The trial shall be completed within a year from the date of taking cognizance of the offence.
  • Child not to see at the time of testifying- The Child should not be exposed to the accused at any time of examination, whereas the accused must be in a position to hear the statement of the child and consult his Advocate. The statement of the child must be recorded through video conferencing or any other devices.
  •   Trials to be conducted on camera- The case trial shall be in camera and recorded in presence of the parents or guardians of the Child. If the child is examined at a place other than the court, under the provisions of section 284 of the CrPC 1973, a commission shall be issued.
  • Assistance of an Interpreter or expert while recording evidence of child- If the child is mentally or physically disable the Court may take help of an expert who is familiar with the manner to communicate with the child. Court may take help of a translator who is qualified and experienced on payment of fees prescribed by the Court, while recording the evidence of the child.

Conclusion

POSCO Act is the first Act where the protection of any child for sexual harassment is Gender Neutral. The spread of public awareness about this act is very important and the State Government and the Central Government shall take all the measures and ensure the same. The (Protection Of Children From Sexual Offences) POSCO amendment bill 2019, seeks to provide for stringent punishment to those engaging in sexual crimes against children,death penalty in cases of aggravated sexual assault, besides imposing fines and imprisonment , to curb child pornography.

Highlights of the Act

  • Guidelines for children to take help from experts.
  • Right of child to take help of legal practitioner.
  • Provisions of sections 3 to 13 not to apply in certain cases.
  • Act not in derogation of any other law.
  • Power to make rules by the Central Government.
  • Power to remove rules by the Central Government.

Authors– Swagata Sharma (NEF Law College) & Nimisha Sharma (Gauhati University)

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