A Brief Idea Of The POCSO Act

Published on 08 Jul 2017 by Team

The Prevention of Children from Sexual Offences Act (POCSO) was enacted with the intention of protecting children from all and any kind of sexual exploitation. The laws which were in place pertaining to the sexual offences against the children were very limited in scope and quite practically, the language of the act left out a number of nuances of how these offences occur.

The Act predominantly just filled the legal void in the particular subject that it deals with primarily. The legislature has made a number of amendments in order to make this particular act complete in the sense that they act is now both a substantive as well as a procedural piece of legislature. These changes brought about in the form of amendments were very crucial to meet the ends of justice.

Child sexual abuse is a widespread problem with seriously damaging life-long outcomes. Despite the gravity of the crime and the vulnerability of the victims both society and government skirted the issue the problem remained ill addressed due to deep-rooted cultural norms, social stigma, poor awareness, lack of child rights and inadequate laws. Violence against children is all too often unseen, unheard and underreported.

Sexual offences against children were covered by three sections of the Indian Penal Code (IPC) not specific to children. The only crimes registered were rape (sexual intercourse without consent—Section 376), outraging the modesty of a woman (unspecified acts- Section 354) and unnatural Section 377). Further, the variations of sexual abuse, harassment and exploitation were not explicitly recognized as crimes and therefore went unpunished.

Salient features of POCSO Act

  • The Act defines a child as any person below eighteen years of age, and regards the best of interests of the child as being of paramount importance at every stage, to ensure the healthy physical, emotional, intellectual and social development of the child.
  • It defines different forms of sexual abuse, including penetrative and non-penetrative assault, as well as sexual harassment and pornography, and deems a sexual assault to be “aggravated” under certain circumstances.
  • It deems a sexual assault to be “aggravated” under certain circumstances, such as when the abused child is mentally ill or when the abuse is committed by a person in a position of trust or authority vis-à-vis the child, like a family member, police officer, teacher, or doctor.
  • People who traffic children for sexual purposes are also punishable under the provisions relating to abetment in the Act.
  • The Act provides for the establishment of Special Courts for the trial of offences under the Act, with the intention of providing quick justice to such children.
  • The said Act prescribes stringent punishment graded as per the gravity of the offence, with a maximum term of rigorous imprisonment for life, and fine.
  • In keeping with the best international child protection standards, the said Act also provides for mandatory reporting of sexual offences

Brief Timeline of Cases under POCSO Act

  1. Mandatory Reporting and Filing of Case
  2. Emergency Medical Care
  3. Recording of Statement of Child before Magistrate
  4. Assessment by Child Welfare Committee
  5. Role of support persons
  6. Placement in Institutional care
  7. Legal Aid & Compensation
  8. Trial under Special Court

Procedures Made Child-friendly

The Act incorporates child-friendly procedures for reporting, recording of evidence, investigation as well as the trial of such offences covered under the act. Some of the procedures are as follows; 

  1. Recording the statement of the child at the residence of the child or at the place of his choice, preferably by a woman police officer.
  2. No child is to be detained in any police station in the night for any reason what so ever.
  3. Police officials are directed not to be in uniform while recording the statement of the child so victimized.
  4. The statement of the child is to be recorded exactly as the child narrates.
  5. Medical examination of the child to be conducted in the presence of the parent of the child or any other person in whom the child has trust or confidence.
  6. In case the victim is a girl child, the medical examination shall be conducted by a woman doctor.
  7. Frequent breaks for the child during the trial.
  8. Child not to be called repeatedly to testify.
  9. No aggressive questioning or character assassination of the child is to be done in an in-camera trial of cases.

The Act casts a duty on the Central and State Governments to spread awareness through media including the television, radio and the print media at regular intervals to make the general public, children as well as their parents and guardians aware of the provisions of this Act.

As per Rule 4(12) of the Protection of Children from Sexual Offences Rules 2012 the Police shall inform the parent or support person or guardian the following : Availability of Medical Services to the child survivor, Procedural steps involved in Criminal Prosecution of the offenders, Availability of victim compensation, Arrest of the offender, Filing of Charge against the offender, Dates of court proceedings, Bailor release of the Offender, Rendering of verdict,Sentence imposed on a an offender, etc.

As per Rule 5(3) of the Protection of Children from Sexual Offences Rules 2012 no medical practitioner shall demand any legal or magisterial requisition or other documentation as a prerequisite to rendering medical care.

Special Provisions of POCSO Act

Reporting a case of Child Sexual Abuse - Universal liability placed on the society at large

Under Section 19.1 of the POCSO Act, any person who has apprehension that an offence is likely to be committed or has knowledge that an offence has been committed should bring the incident to the notice of the Special Juvenile Police Unit (SJPU) or the local police.

The liability has been placed upon any person found to have not informed the police about any such incident relating to POCSO Act. The failure to report such an offence is punishable by imprisonment of up to six months or fine or both. This penalty is, however, not applicable to a child less than 16 years of age.

For easy reach, if one calls Childline on 1098, they will connect the concerned to the police and Child Welfare Committee.

Section 21. Punishment for failure to report or record a case : (Liability for failing to inform case of Child Sexual Abuse)

(1) Any person, who fails to report the commission of an offence under sub-section (1) of section 19 or section 20 or who fails to record such offence under sub-section (2) of section 19 shall be punished with imprisonment of either description which may extend to six months or with fine or with both.

(2) Any person, being in-charge of any company or an institution (by whatever name called) who fails to report the commission of an offence under sub-section (1) of section 19 in respect of a subordinate under his control, shall be punished with imprisonment for a term which may extend to one year and with fine.

The police, on the other hand, have been given the duty to record the report in writing, ascribe an entry number, read the report over to the informant for verification, and enter it in a book. An FIR must be registered and a copy of the same should be handed over to the informant free of charge.More on this below.

What should the police or Special Juvenile Police Unit do?

Within 24 hours of the reporting of the case, the police must:

  1. Determine if the child is in need of care and protection. The child should be produced before the Child Welfare Committee (CWC) if he/she is found to be in need of care and protection or has no parental support.
  2. If the medical examination has not been conducted, ensure it is done and that samples are collected for forensic tests.
  3. In case urgent medical attention is required, the child should be taken to the nearest hospital.
  4. The matter must be reported to the CWC and the Special Court. In case a Special Court has not been designated, it must be reported to a Sessions Court.

Medical Examination of Child- within 24 hours 

As per POCSO, once it has come to the knowledge that a crime has been committed against a child, the child should be taken immediately for a medical examination.

  • The examination must be conducted by a registered medical practitioner at a government hospital or a hospital run by a local authority, within 24 hours from the time of receiving information about an offence regardless of an FIR being filed or not.  
  • In the case of a girl child, the examination must be conducted by a woman doctor.
  • Presence of a parent or any other person that the child trusts are a necessity under POCSO. In case such a person is not present, the head of the hospital should appoint a lady who can stand in.
  • If the child is bought for a medical exam post 96 hours after the assault has occurred, an exam to document any injuries, bruises, nature of an injury, and possible causes by which the injuries might have been caused etc. will need to be carried out, even if samples and swabs are not collected.
  • The hospital must then document this in the medico-legal records and report the incident to the police.

Punishments under Pocso

Sexual assault and rape are different, and the difference is crucial when looking at child survivors of rape. ‘Rape’ is both a legal term and a descriptor.

After amendments to the law in 2013, the act of rape is defined as an act of penetration; the penis or any other object into the anus, vagina or urethra of a woman.

‘Sexual assault’ on the other hand, is a broader term which also includes kissing without consent, sexual harassment and pornography. 

As mentioned above, POCSO Act covers both sexual assault as well as penetrative sexual assault. In the case of a child survivor of rape, even though there is penetration, the offence is charged under the POCSO Act.

Besides several child-friendly procedures that policemen and judges are to follow with child victims, the POCSO classifies the offences into the following-

  1. Penetrative sexual assault (seven years to life imprisonment),
  2. Aggravated penetrative sexual assault (ten years to life),
  3. Sexual assault (three to five years),
  4. Aggravated sexual assault (five to seven years),
  5. Sexual harassment (three years and fine) and lastly,
  6. Use of children for pornographic purposes (first conviction–five years; second conviction-seven years).

Ground level improvements still required under POCSO

  • Presently, the child has to be produced before a Child Welfare Committee (CWC) which will then offer a support person to the victim.
  • POCSO does not offer support to persons like counsellors to the child victim and the family at the point where the offence gets registered--the police stations.
  • POCSO is lacking several important provisions that would have helped bolster the prosecution in such cases.
  • The recording of the victim’s statement before a magistrate under Section 164 of the Criminal Procedure Code happens after 2-3 days even now.
  • This is a crucial period in which the child victim and family can be influenced and threatened to withdraw his/her complaint.
  • This is especially true in cases where accused are known to the victims.
  • The recording of statements under Section 164 should be immediately done.
  • Evidence collection has to improve.
  • A victim-protection scheme has been one of the biggest calls in the society but has not been included in POCSO. This would have helped to ensure that the victim does not turn hostile during the trial.

Police being the primary agent involved in POCSO need to be sensitised

Presently, the POCSO recommends a punishment of six months imprisonment to a policeman who does not record a complaint of sexual offence by a child victim. This punishment and provision could backfire in some cases, where for example incidences elopements are reported the policemen would find it more suitable to slap the POCSO on the hapless boy. The policeman may naturally be afraid of an impending stiff sentence could be in line, if they do not use POCSO in a case involving minors. Sensitisation of police is important to derive the maximum benefit out of POCSO.”

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