Civil Procedure Code (CPC)

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The Protection of Children from Sexual Offences (POCSO) Act 2012 is applicable to the whole of India. The POCSO Act 2012 defines a child as any person below the age of 18 years and provides protection to all children under the age of 18 years from sexual abuse. It also intends to protect the child through all stages of judicial process and gives paramount importance to the principle of "best interest of the child".

Need for POCSO Act, 2012

  • The objectives of enacting the POCSO Act, 2012 are to protect the children from various types of sexual offences and to establish Special Court for providing speedy disposal of cases.
  • Before this Act, most of the sexual offences are covered under IPC, 1860. But IPC does not provide for all types of sexual offences against children and it is general legislation, it does not distinguish between adult and child victims.
  • Sexual offence against a boy also covered under POCSO Act. The Act does not distinguish between boy and girl. 

The sexual offences which are recognized under the POCSO Act And punishments for those offences

Penetrative and aggravated penetrative sexual assault, sexual and aggravated sexual assault, sexual harassment, and using a child for pornographic purposes are the five offences against children that are covered by this act. This act envisages punishing even abetment or an attempt to commit the offences defined in the act. It recognizes that the intent to commit an offence, even when unsuccessful needs to be penalized. The punishment for the attempt to commit is up to half the punishment prescribed for the commission of the offence


OFENCES

PUNISHMENT SECTIONS UNDER  POCSO

IMPRISONMENT FOR A TERM WHICH SHALL NOT BE LESS THAN

BUT WHICH MAY EXTEND TO

Penetrative sexual assault

Sec-4

SEVEN YEARS

IMPRISONMENT FOR LIFE

Aggravated Penetrative sexual assault

Sec-6

Ten years (R/I)

Imprisonment for life

Sexual assault

Sec-8

Three years

Five years

Aggravated sexual Assault

Sec-10

Five years

Seven years

Sexual harassment

Sec-12

Three years


Note

  • All the above offences shall be punished with imprisonment for either description  but aggregative penetrative sexual assault shall be punished with rigorous imprisonment.
  • Imprisonment for life is always rigorous imprisonment.
  • All the above offences shall also be liable to fine

CRITICAL ANALYSIS ON POCSO ACT

  • The POCSO Act (hereinafter referred to as ‘The Act’) was enacted on 14 November 2012 (children's day) throughout India, except the state of Jammu and Kashmir.
  • POCSO Act defines child as any person below 18 years of age. (Section 2)
  • 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; (Sections 3, 5, 7, 9 & 11) 
  • Abetment of an offence or an attempt to commit an offence is also punishable under the Act. (Section 16)
  • 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 (Section 13).
  • 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.
  • The Special Court shall complete the trial within a period of one year from the date of taking cognizance of the offence (Section 35).  

Roles of Special Court under POCSO Act during the trial

i. Create a child friendly atmosphere by allowing a family member, a guardian, a friend or a relative in whom the child has trust and confidence, to be present. 
ii. Permits frequent breaks for the child. 
iii. The child is not called repeatedly in the court to testify. 
iv. Aggressive questioning and character assassination of the child are not permitted. 
v. The dignity of the child is maintained. 
vi. The identity of the child is not disclosed (Section 33).

The Special Court shall try cases in camera in the presence of parents of the child or any other person in who the child has trust or confidence (Section 37). 

If there is any apprehension of the commission of an offence under the POCSO Act, the same may be informed either to the SJPU or Local Police (Section 19).

Any person including the child can inform or make a complaint if there is an apprehension of commission of offence under POCSO Act. 

Media/hotel/lodge/hospital/club personnel have an obligation to report to the SJPU or Local Police if she/he/they come across any material or object which is sexually exploitative of the child (Section 20). 

The POCSO Act, 2012 provides for a punishment for failure to inform the SJPU or Local Police or record a case if she/he/they come across any material or object which is sexually exploitative of the child. Punishment for such failure is either imprisonment up to six months or with fine or both (Section.21). 

If a person makes a false complaint or provides false information against any other person, she/he shall be punished with imprisonment up to six months or with fine or with both (Section 22). 

Under no circumstances the statement of a child can be recorded in the police station. 

The POCSO Act provides for the special provision for recording of evidence of a child who has mental or physical disability. The Magistrate may take the assistance of a special educator or a person familiar with the manner of communication of the child (Section 26).

The child has a right to take the assistance of a legal practitioner. If the parents or guardian of the child is unable to afford a legal counsel, the Legal Services Authority shall provide a lawyer (Section 40). 

The POCSO Act has barred the media from disclosing the identity of the victim including his/her name, address, family details, photograph, school, neighborhood etc (Section 23). 

If a person discloses the identity of a child, she/he shall be punished with imprisonment up to six months extendable to one year or with fine or with both (Section 23). 

This act suggests that any person, who has an apprehension that an offence is likely to be committed or has knowledge that an offence has been committed, has a mandatory obligation to report the matter i.e. media personnel, staff of hotel/ lodges, hospitals, clubs, studios, or photographic facilities. Failure to report attracts punishment with imprisonment of up to six months or fine or both. It is now mandatory for police to register an FIR in all cases of child abuse. A child's statement can be recorded even at the child's residence or a place of his choice and should be preferably done by a female police officer not below the rank of sub-inspector.

As per this act, the child's medical examination can be conducted even prior to registration of an FIR. This discretion is left up to the Investigation Officer (IO). The IO has to get the child medically examined in a government hospital or local hospital within 24 hours of receiving information about the offence. This is done with the consent of the child or parent or a competent person whom the child trusts and in their presence.

Child Welfare Committees (CWC) play a vital role under the POCSO Act, cases registered under this act need to be reported to the CWC within 24 hours of recording the complaint. The CWC should take into account the opinion of the child to decide on the case within three days and conclude whether the child should remain in an institution or be with the family. The CWC should nominate with the consent of the child parent / guardian / other person who the child trusts, a support person to assist the child during the investigation and trial of the case.

The State Commissions for Protection of Child Rights (SCPCR) has been empowered and with the responsibility of monitoring the implementation of the provisions of the POCSO Act 2012, to conduct inquiries and to report the activities undertaken under the POCSO Act 2012, in its annual report. The commission is also empowered to call for a report on any specific case of child sexual abuse falling within the jurisdiction of a CWC. The commission can also recommend interim relief, or make recommendations to the state government to effectively redress the matter.

The rules laid down in this act also had defined a criteria of awarding the compensations by the special court that includes loss of educational and employment opportunities along with disability, disease or pregnancy as the consequence of the abuse. This compensation would be awarded at the interim stage as well as after the trial ends.

Special Court

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 

Under the POCSO Act, the Special Court must take the following measures at the time of the 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.

The author can also be reached at brpandaadv@gmail.com


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