The Protection of Children from Sexual Offences (POCSO) Act was passed by parliament in the year 2012. This Act was passed with the intention to protect the children from sexual abuse, sexual harassment and pornography. Nevertheless, Indian Penal Code, 1860 has certain provisions like Rape, Sexual harassment, outraging the modesty of women, etc. however, it does not protect child in effective manner. Therefore, it was necessary to have a codified law to protect the children from these heinous offences. To deal with such offences and matters this Act has established special courts.
Features of POCSO Act
This Act is gender neutral comprises of 46 sections with aim to ensure the physical, mental and intellectual health including the social development of the child.
The word Child under this Act means an individual below the age of eighteen years.
Section 2 of the Act defines various forms of sexual abuse such as penetrative and non-penetrative including sexual harassment and pornography.
This Act deems the 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.
The Act prescribes for a child-friendly reporting and investigating system. It assigns a policeman in the role of child protector during the investigation process.
The Act defines “child pornography” as any visual depiction of sexually explicit conduct involving a child which include photograph, video, digital or computer generated image indistinguishable from an actual child, and image created, adapted, or modified, but appear to depict a child.
Offences under the Act:
1.Penetrative Sexual Assault-
A person under this Act is said to have committed the penetrative sexual assault if he penetrates or manipulates any part of the child’s body so as to penetrate his penis, or any other object into the vagina, mouth, urethra or anus of the child, or makes the child do so with him or any other person.
2.Aggravated penetrative sexual assault-
A person is said to have committed the aggravated penetrative assault if the person is police officer on duty, Member of armed or security forces, Member of the management or the staff of a jail, member of management or staff of a hospital, Person using deadly weapons, fire, heated substance or corrosive substance or causing grievous hurt to the sexual organs of the child, Person is previously convicted of having committed any offence under this Act or any sexual offence, etc.
When a person with sexual intent touches or makes the child touch the vagina, penis, anus or breast of the child or such person or any other person respectively, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault.
A person is said to have committed sexual harassment under this Act if he, with the sexual intent Utters any word, or makes any gesture or exhibits any object or part of body with the intention to be heard or seen by the child, makes a child exhibit his body or any part of his body so as it is seen by such person or any other person, shows any object to a child in any form or media, or entices the child or gives gratification for pornographic purposes or threatens to use, in any form of media, a real or fabricated, of any part of the body of the child or the involvement of the child in a sexual act.
Punishments under the Act:
Section 3 to 19 talks about punishment covered under this Act.
A person who has committed Penetrative Sexual Assault shall be punished with the imprisonment not less than ten years, which may extend to imprisonment for life, and fine.
A person who has committed Aggravated Penetrative Sexual Assault shall be punished with the imprisonment of not less than twenty years, which may extend to imprisonment for life, and fine.
A person who has committed Sexual Assault shall be punished with the imprisonment of not less than three years, which may extend to five years, and fine.
A person who has committed Aggravated Sexual Assault shall be punished with the imprisonment of not be less than five years which may extend to seven years, and shall also be liable to fine.
A person who has committed Sexual Harassment of the Child shall be punished with imprisonment of three years and fine.
A person who uses child for Pornographic Purposes shall be punished with imprisonment of not less than Five years and fine and in the event of subsequent conviction, seven years and fine.
Any person, who stores or possesses pornographic material in any form involving a child, but fails to delete or destroy or report the same to the designated authority, as may be prescribed, with an intention to share or transmit child pornography will be charged with the fine of not less than Rs 5,000 and in the event of second of subsequent offence, fine not less than Rs 10,000.
If any person stores or possesses pornographic material in any form involving a child for commercial purpose shall be punished on the first conviction for not less than three years of imprisonment which may extend to five years; or with fine or with both. Second or subsequent conviction for not less than five years and up to seven years and also fine.
Attorney General for India v. Satish and another (2021)
Satish Ragde v. State of Maharashtra Thee Bombay High Court’s Nagpur Bench held that grabbing a child’s breasts without making “skin-to-skin contact” constituted molestation under the POCSO Act, 2021. The Attorney General of India, the National Commission for Women, and the State of Maharashtra filed appeals against the High Court’s controversial decision, setting aside the Bombay High Court’s judgment, the Apex Court observed that the matter at hand would be an appropriate situation for using the “mischief rule” of statutory interpretation. It emphasizes that courts must constantly interpret the law in order to prevent harm and promote the remedy. Supreme Court observed that the High Court’s interpretation not only restricts the implementation of the legislation but also seeks to pervert its objective.
Alakh Alok Srivastava vs. Union of India (2018),
In this case the Supreme Court of India laid down guidelines to be followed by Special Courts while trying a case under the POCSO Act, 2012 so that the trial is completed within a period of one year from the date of taking cognizance of the offence, as provided under Section 35 of the Act. Guidelines by the Supreme Court are as follows-
- The High Courts are responsible for ensuring that cases filed under the POCSO Act are heard and decided by Special Courts and that the presiding officials of such courts are trained in child protection and psychological reaction.
- If not previously done, the Special Courts should be constituted and given the role of dealing with matters brought under the POCSO Act.
- The Special Courts should be given instructions to expedite cases by not granting superfluous adjournments and following the procedure outlined in the POCSO Act, allowing the trial to be completed in a time-bound manner or within a certain time period set forth in the Act.
- The Chief Justices of the High Courts have been asked to form a three-judge committee to control and supervise the progress of the POCSO Act cases. In the event that three judges are not available, the Chief Justices of the respective courts will form a Judge Committee.
- A Special Task Force will be formed by the Director-General of Police or a State authority of comparable rank to guarantee that the investigation is properly handled and witnesses are presented on the dates set before the trial courts.
- The High Courts must take appropriate efforts to create a child-friendly environment in Special Courts, keeping in mind the requirements of the POCSO Act, to ensure that the spirit of the Act is upheld.
The POCSO Act, 2012
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