The Protection of Children from Sexual Offences Act, 2012 - 3 | Important Acts and Laws for Judiciary Exams PDF Download

Mukesh & Anr. vs. State for NCT of Delhi & Ors., Nirbhaya's Case (2017) 6 SCC

• Facts of the Case: A 23-year-old woman was brutally gang-raped by six men on a moving bus in Delhi in 2012, leading to her tragic demise.
• Verdict: Four adult perpetrators received the death penalty, one committed suicide, and the juvenile offender was sentenced to three years in a reformation center.
• Legal Impact: This heinous incident prompted significant public outcry, resulting in legislative changes to strengthen rape laws.
• Panel led by JS Verma was formed post-incident to suggest amendments enhancing punishment for extreme assaults against women.
• Justice Verma Committee proposed changes resulting in the Criminal Law (Amendment) Act, 2013.
• The Act amended various laws including the Indian Penal Code, Code of Criminal Procedure, Indian Evidence Act, and POCSO Act.
• Rape definition was broadened, and capital punishment was introduced for severe cases resulting in the victim's death or permanent vegetative state.
• New offenses were included to strengthen existing laws.

Impact and Amendments

• An accused, near 18 years, received a lenient 3-year sentence under the Juvenile Justice Act, 2000, sparking the need for the Juvenile Justice Act, 2015.

Changes in Juvenile Justice (Care and Protection of Children) Act, 2000

• Section 4: Establishment of Juvenile Justice Boards in each district to handle children in conflict with the law.
• Section 15 (Preliminary assessment into heinous offences by Board): Boards evaluate the mental and physical capacity of children aged 16 or above, ensuring they comprehend consequences before proceeding with trials.

Juvenile Justice Process

• Board Decision: Determines if juvenile should be tried as an adult or sent to reform home.
• Children's Court Authority: Decides trial as an adult, considering special needs, fair trial, and child-friendly environment.
• Safe Custody: Ensures juvenile's safety until 21, then transfer to jail.

Juvenile Sentencing

• Restrictions: Death or life imprisonment not applicable to juveniles.
• Heinous Crimes: Serious offenses may lead to adult treatment.
• Age Consideration: Treatment as adult possible after 21 years for serious offenses.
• Post-21 Apprehension: Juvenile tried as adult, with 7+ years' imprisonment for heinous offenses.

Case Analysis: State of Maharashtra vs. Madhukar Narayan Mardikar

• Incident Overview: Police inspector accused of misconduct at woman's residence.
• Evidence: Allegations, findings, and respondent's defense.
• Legal Proceedings: Details of departmental inquiry and testimonies.
• Accusations: Allegations of false complaints and motives.

Legal Cases

• The High Court of Bombay initially ruled that a man could not be dismissed from his service based on the testimony of a woman with an "immoral character."
• The Supreme Court overturned this decision, emphasizing that even individuals with a promiscuous reputation have a right to privacy and legal protection.

Case of Independent Thought vs. Union of India and Anr. (2017) 10 SCC 800

• Independent Thought, an NGO focusing on child rights, challenged the legality of a provision in the Indian Penal Code regarding marital rape.
• The Supreme Court ruled that sexual intercourse with a minor wife between 15 and 18 years of age constitutes rape, citing violations of fundamental rights.

Supreme Court Verdict on Age of Consent

• The Indian Constitution previously allowed intrusive sexual intercourse with a girl aged below 18 and above 15 on the grounds of marriage.
• This exception clause in Indian rape laws conflicted with the Prohibition of Child Marriage Act and violated the provisions of the Protection of Children from Sexual Offences Act (POCSO) and international conventions.
• In a landmark verdict, the Supreme Court struck down Section 375, Exception 2 of the Indian Penal Code, ensuring that the law cannot protect a man engaged in sexual relations with his wife aged between 15 and 18.
• The court emphasized that regardless of a child's marital status, she will always be considered a child.

Case of Virender v. State of NCT of Delhi

• Facts: A girl aged 12-13 was raped by her neighbor who had loaned money to her father. The trial court found him guilty.
• Key Point: The girl's understanding of the term "galatkaam" was crucial in the case.
• High Court Opinion: The court must ensure the child witness's mental capacity and ability to provide accurate testimony.

Guidelines by Delhi High Court

I. Recording of Complaint and Investigation by Police

• Ensure proper recording of complaints and thorough investigation by the police.
• This ruling upholds the rights of minors and aligns with international laws protecting children from sexual exploitation.
• It highlighted the importance of assessing a child witness's comprehension and memory capabilities in legal proceedings.
• These guidelines aim to ensure justice and protection for minors involved in sexual offense cases.
• Recording of Complaint: When a complaint about a crime against a child is filed, the police must document it promptly and accurately.
• Involvement of Forensic Experts: Immediate steps must be taken to involve a forensic scientist in the investigation upon receiving a complaint or filing an FIR for such offences. The Investigating Officer should follow the scientist's guidance in the investigation process.
• Investigation Protocol: An officer not below the rank of Sub-Inspector, preferably a female officer, should handle cases involving child victims after receiving appropriate training. Statements of child victims must be recorded exactly as stated by them. Statements should be taken in a safe environment where the child feels comfortable and without any coercion. Statements should be recorded promptly without delays.
• Procedural Safeguards: Parents or guardians the child trusts should be allowed during questioning. Measures should be taken to prevent contact between the child victim and the accused. Child victims should not be detained overnight at police stations for any reason, including medical examinations.
• Recording the Statement of the Child Victim: The Investigating Officer must ensure that the child victim is comfortable before recording their statement. The statement should accurately narrate the incident, covering all relevant aspects of the case.
• Assistance of a Psychiatrist: If necessary, the Investigating Officer may seek the assistance of a psychiatrist.
• Medical Examination of the Child Victim: The child victim should be medically examined promptly, preferably within twenty-four hours at a government hospital.
• Visit to the Crime Scene: The investigating team should visit the crime scene promptly to secure and collect all incriminating evidence.
• Forensic Examination: Prompt referral for forensic examination of clothing and other necessary articles to the forensic laboratory. The forensic laboratory should prioritize these cases to expedite the availability of reports.
• Priority Investigation: Cases involving sexually abused children should be investigated on a priority basis. Completion of investigation within ninety days of case registration, with periodic supervision by senior officers.
• Protection of Child Victim's Identity: The Investigating Officer must ensure that the identity of the child victim is safeguarded from publicity.
• Communication with Complainant/Victim: Regular updates to the complainant or victim regarding the progress of investigations. If the complainant requests specific investigations, the Investigating Officer should address these requests and maintain proper records of actions taken. 
• Confidential Matters: Individuals involved in investigations are not entitled to access confidential information that could jeopardize the ongoing investigations.
• Recording Dying Declarations: When a dying declaration is recorded, video recording should also be conducted to prevent challenges to its authenticity.
• Supervision of Investigations: The ACP of the area must personally supervise investigations for these offenses, and the concerned DCP should conduct fortnightly reviews.
• Protection of Prosecution Witnesses: Material prosecution witnesses must be safeguarded by the SHO, who should address their complaints personally.
• Video Recording of Child Victim's Statement: Whenever possible, the Investigating Officer should ensure video recording of the statement given by the child victim.

II. Recording of Statement Before Magistrate

• Prompt Recording: The statement of the child victim should be recorded promptly by the concerned Magistrate, avoiding unnecessary delays, with reasons documented if adjournment is unavoidable.
• Recording in Hospital: If the child victim is in the hospital, the Magistrate should record their statement there.
• Child-Friendly Environment: Separate rooms within the Court premises should be provided to create a child-friendly environment for recording the statement of the child victim.
• Parental Presence: Unless the parents/guardians are reported to be abusive or if the Magistrate deems it necessary in the interest of justice, the child victim should not be separated from them or taken out of their environment to confirm the voluntary nature of the statement.
• Video Recording of Statement: It is recommended that the statement of the child victim should be video recorded whenever possible to ensure accuracy and transparency.
• Detention of Child: No court should detain a child in a facility meant for adults, ensuring the child's well-being and appropriate care.

III. Medical Examination

• Orienting Doctors: Doctors involved in preparing Medical Legal Certificates (MLCs) or conducting post-mortems should receive training to ensure reports meet judicial standards.
• Comfort of Child Victim: Before a medical examination, efforts should be made to ensure the comfort of the child victim, especially considering the sensitive nature of the procedure.
• Female Doctor Preference: For girl child victims, medical examinations should preferably be conducted by female doctors to provide a more comfortable environment.
• Psychiatric Support: Whenever possible, psychiatric help should be available to the child victim before the medical examination to address any emotional or psychological needs.
• Timely Reporting: Medical reports should be prepared promptly, signed by the examining doctor, and provided to the parents or guardians of the child victim.
• Parental Presence: Parents, guardians, or trusted individuals should be allowed to be present during the medical examination to provide support to the child.
• Emergency Treatment: Immediate medical treatment should be provided to the child victim in case of emergencies.
• Prophylactic Treatment: Prophylactic medical treatment against sexually transmitted diseases (STDs) should be offered to the child victim for preventive care.

• In cases where a child victim is taken to a private or nursing home, immediate medical attention must be provided, and the incident should be reported to the nearest police station.

IV. Proceedings in Court

• To ensure a child-friendly environment, separate rooms should be designated within the court premises for recording the statement of the child victim.
• If the victim or witness has a disability affecting communication, an independent person familiar with the disability should assist in communication.
• Rape trials must be conducted "in camera" as a standard practice without the need for a specific request.
• Cases should be preferably committed to the Court of Sessions within fifteen days of the filing of the chargesheet.
• Child witnesses should be allowed to testify from a location in the courtroom different from where other witnesses usually testify.
• To reduce trauma, testimony can be recorded via video conferencing or closed-circuit television. Alternatively, a screen should be used to shield the child witness from the accused.
• The competency of child witnesses should be assessed, and an official record of their competency should be maintained.
• The trial court should ensure that child witnesses understand their obligation to speak truthfully.
• Efforts should be made to protect the child witness from unnecessary trauma during court proceedings.

Key Considerations for Child Witnesses in Court

• Court needs to ascertain the truthfulness of child witnesses.
• Mental capacity of the child at the time of the incident is crucial.
• Child witness must be able to recall and articulate their memories accurately.
• Capacity to understand and respond to questions about the event is necessary.
• Record of the child's testimony must reflect the court's satisfaction.

Anonymity and Protection of the Victim

• Avoid revealing the victim's identity in court orders to protect their privacy.
• Efforts to maintain the anonymity of the victim throughout legal proceedings.

Prompt Recording of Statements

• Statements of child victims should be recorded promptly by the Magistrate.
• Avoid unnecessary adjournments, providing written reasons if unavoidable.

Ensuring Comfort and Truthful Testimony

• Ensure that the victim feels safe and can openly share their experience.
• Encourage victims to disclose all details without fear or hesitation.
• Create a supportive environment to improve the quality of the testimony.
• Prevent the victim from concealing information due to shame or embarrassment.

Supportive Measures during Testimony

• Allow a social worker or trusted adult to accompany the child witness.
• Permit the presence of a supportive figure to enhance the child's comfort.

Presence of Support for Child Witnesses

• If a witness is a child, they should have access to a supportive individual at all times during their testimony. 
• However, this person must not influence the child's testimony in any way.

Limiting Courtroom Access

• Individuals not directly involved in the proceedings, including extra court staff, should be excluded from the courtroom during the child's testimony.

Preventing Repeated Appearances

• Efforts should be made to avoid the child witness having to repeatedly appear in court unless absolutely necessary.

Protecting Child Witnesses from Harassment

• Care should be taken to ensure that questions asked during cross-examination do not seek to embarrass or confuse victims of rape and sexual abuse.

Monitoring Examination Process

• The presiding judge should carefully oversee the questioning of child witnesses to prevent any attempts to harass or intimidate them.

Active Role of the Court

• The court plays a crucial role in seeking the truth and delivering justice. 
• The judge should actively participate in the trial process and prevent irrelevant information from being recorded. 
• If necessary, the judge can intervene to ensure that all essential evidence is presented.

Judge's Role in Court Proceedings

• The judge possesses the authority to question witnesses during various stages of examination to ensure accuracy and clarity in testimonies.
• It is crucial for judges to address any errors or slips made by witnesses, considering the impact of nervousness during cross-examination.
• The court must eliminate any factors, such as embarrassment or reservations, that could hinder the uncovering of truth and the actions of the accused.
• Judges should be mindful of the witness's language proficiency and vocabulary range when recording testimonies to prevent misinterpretation.
• Aggressive or inappropriate language during examination of victims or child witnesses should be strictly avoided to protect their well-being and testimony accuracy.

Special Considerations in Court Proceedings

• Child witnesses may use gestures to explain, and it is essential for courts to accurately document such non-verbal communication.
• Victims of abuse or child witnesses should be granted necessary breaks during their court testimony.
• Cases of sexual assaults on females should preferably be handled by female judges when available to ensure sensitivity and understanding.
• It is the responsibility of the judiciary to maintain a respectful and supportive environment during court proceedings, especially when dealing with sensitive matters involving witnesses and victims.
• Efforts should be made to ensure that courtroom staff dealing with such cases are of the same gender as much as possible.
• The judge should maintain a balanced and humane approach, safeguarding the dignity of the vulnerable victim. Gender bias should be avoided, and no witness should face humiliation during examination.
• Cases involving child victims or witnesses should be prioritized for speedy trials to reduce the stress on the child. Courts must consider the negative impact of delays on the child's welfare when deciding on adjournments.

V. General

• Consistency in personnel handling cases involving child victims or witnesses is crucial, from investigation to prosecution to trial.
• Police and judges should determine the child's language proficiency and use translators if needed to ensure clear communication.
• Minimize the number of times a child victim or witness must recount events by establishing a multidisciplinary team early on, fostering trust and confidence in the child.
• Child victims should not be separated from parents unless there are reports of abuse, to avoid disrupting the child's environment unnecessarily.

• Court Procedures and Guidelines: When the Magistrate deems it necessary in the interest of justice, actions can be taken.
• Use of Tools in Foreign Courts: Foreign courts utilize anatomically correct illustrations and figures for assistance, such as dolls, during testimonies of child victims. Exploration of the potential use of similar tools in the country with expert guidance is essential to facilitate the testimony process.
• Detention of Children: No child should be detained in an adult institution, including by investigating agencies.
• Media Reporting: Judges must prevent media coverage of camera proceedings to avoid sensationalization of cases.

Mahesh Yadav v. The State of Jharkhand 2017 SCC Online Jhar 923

• Court Directive: The Jharkhand High Court directed the issuance of notices to all POCSO Courts in Jharkhand, emphasizing guidelines set in previous cases.
• Compliance Check: POCSO Courts were instructed to report on adherence to specified procedures outlined in the POCSO Act.

Gaya Prasad Pal @ Mukesh vs. State, 2016 SCC Online Del 6214

• A man was found guilty of penetrative sexual assault under the POCSO Act for raping his stepdaughter below 14 years, leading to pregnancy.
• The delay in filing the FIR was justified as the victim was concerned about her family's safety.

Case Background

• In a legal case, an appellant faced charges under various sections of the Indian Penal Code (IPC) and the POCSO Act. 
• The appellant contested his conviction and the sentencing.

Key Legal Interpretation

• The appellant was not tried for aggravated penetrative sexual assault under Section 6 of the POCSO Act during the trial. Therefore, punishing him for this offense was deemed illegal.
• The court clarified that the act of "rape" under Section 375 IPC can also constitute "penetrative sexual assault" under Section 3 of the POCSO Act when concerning a child. The court emphasized that an individual should not face double punishment for the same set of actions that fall under two different legal provisions.

Legal Implications

• The court noted that the charge under Section 4 of the POCSO Act, for which the appellant was found guilty, was additional to his conviction under Section 376 IPC. The acts committed by the appellant attracted a more severe punishment under Section 376(2) IPC, which includes life imprisonment and higher fines compared to Section 4 of the POCSO Act.
• Consequently, the court invoked Section 42 of the POCSO Act, obligating the court to penalize the offender for the offense under Section 376(2)(f)(i) and (k) of the IPC, which is more serious than the offense under Section 4 of the POCSO Act.

Deaf and Dumb Victim Case (State of Maharashtra v. Bandu @ Daulat, 2018)

• Case Details: In this case, a 14-year-old deaf, dumb, and mentally challenged girl was raped by her landlord after being enticed with sweet meat. Despite describing the incident to her mother through gestures, the victim herself was not examined.
• Legal Verdict: The High Court ruled that due to the lack of examination of the victim, the occurrence of rape and the involvement of the accused could not be conclusively proven.
• Case Summary: The Supreme Court upheld the conviction of the accused under section 376 IPC and sentenced him to seven years of rigorous imprisonment. This decision was based on the victim's immediate disclosure of the incident to her mother through gestures and the confirmation of rape through medical evidence.
• Establishment of Special Centers: The Court mandated the creation of special centers for the examination of vulnerable witnesses. Each district should have one such center, and each High Court's jurisdiction should have at least two centers within three months of the judgment.
• Reiteration of Previous Directions: The Court reiterated the instructions issued in the case of Sakshi v. Union of India, (2004) 5 SCC 518, which include:
  1. The application of section 327(2) CrPC to offenses under sections 354 and 377 of the IPC in addition to other specified offenses.
  2. Guidelines for conducting trials of child sex abuse or rape, such as using screens to shield victims or vulnerable witnesses from the accused, providing written questions for cross-examination, and allowing breaks for the victim during testimony.