The Protection of Children from Sexual Offences Act, 2012 - 1 | Important Acts and Laws for Judiciary Exams PDF Download

Need for POCSO Act, 2012

• The Protection of Children from Sexual Offences Act, 2012 (POCSO Act) is a special law that deals with sexual offenses against children.
• It covers penetrative, touch, and non-touch based sexual offenses against children.
• The Act mandates the establishment of Special Courts and procedures for the trial of such offenses.

Objective of POCSO Act, 2012

• The main objective of the POCSO Act is to protect children from various forms of sexual offenses.
• It aims to establish Special Courts for the speedy disposal of cases related to sexual offenses against children.

Background and Purpose

• Prior to the POCSO Act, sexual offenses against children were addressed under the more general Indian Penal Code of 1860.
• The need for a specialized law like POCSO arose due to the inadequacy of IPC provisions in dealing with such offenses.

Gender Neutrality and Jurisdiction

• The POCSO Act is gender-neutral, providing protection to both boys and girls against sexual offenses.
• Special Courts under the Act have jurisdiction over cases where the victim is a child and the offense falls under defined sections.

Key Features

• The Act defines a child as any person below 18 years of age, extending protection to all children under this age.
• It prioritizes the "best interest of the child" principle throughout the judicial process.
• Special Courts established by the Act ensure a focused approach to trials related to child sexual offenses.

Special Courts under POCSO Act

• Accused charged under Atrocities Act and POCSO Act: Tried by Special Court under POCSO Act.
• Jurisdiction of the Court under POCSO Act extends to offenses related to sexually explicit material online.

Aim and Object of POCSO Act

• Complete code for all child sexual offenses.
• Covers incidental matters related to such offenses.

Juvenile Justice Act, 2015

• Core law for children in need of care and protection or in conflict with the law.
• Provides for care, protection, development, and rehabilitation through a child-friendly approach.

Definition of Child

• Any person below 18 years of age according to the POCSO Act.

Age Assessment of Child Victim

• Jurisdiction of Special Court based on the age of the victim child.
• Age determination power vested in the Special Court.
• Provisions for assessing the age of a child victim under relevant laws.

The Protection of Children from Sexual Offences Act, 2012 (POCSO Act)

• When dealing with cases involving children, the POCSO Act works in conjunction with the Juvenile Justice Act.
• If a child under 12 is a victim of penetrative sexual assault, the offense is considered aggravated under the POCSO Act.
• In cases where a child's age is uncertain, caution is exercised by treating the individual as a child until age is determined by the appropriate authorities.

Process for Age Determination under Section 94, Juvenile Justice Act, 2015

• When a person's age is uncertain, they may be presented before a Special Court for assessment.
• Steps for age determination include:
  • Obtaining a birth certificate from a school, matriculation, or equivalent certificate.
  • If unavailable, obtaining a birth certificate from a corporation, municipal authority, or panchayat.
  • Conducting an ossification test or a medical age determination test if other certificates are absent.
• If a person appears to be a child, further inquiry is pursued.

Challenges in Age Determination

• Questions arise when determining the age of a minor or child in legal proceedings.
• Appearance versus documented age can lead to discrepancies in assessing whether an individual is a child or an adult.

Legal Considerations

• Appearance alone cannot be used to categorize a person as an adult under Section 94(1) of the JJ Act, 2015.
• Documentation such as a birth certificate from a school or other official sources holds weight in determining a person's age.

Age Determination Process

Criteria for Determining Age

• Matriculation or evaluation certificates are primary documents for age verification.
• If unavailable, birth certificates from a corporation, municipal authority, or Local Body are accepted.
• In the absence of the above, ossification tests or medical age determination tests can be ordered by JJB or CWC.
• Special Court under POCSO Act may follow JJ Act, 2015 for age determination, as seen in Jarnail Singh v. State of Haryana.

Significant Case Laws on Age Determination

• Jarnail Singh v. State of Haryana (AIR 2013 SC 3467):
  • Rule 12 of Juvenile Justice Rules, 2007 applies to determine age of child victims.
  • Emphasized the similarity in age determination for children in conflict with the law and child victims of crime.
• State of M.P. v. Anoop Singh (2015) 7 SCC 773: 2015 SCC Online SC 603 at page 776:
  • Focused on determining the age of the prosecutrix below 16 years.
  • Contrast between birth certificate and Middle School Certificate dates highlighted with a minor discrepancy.
  • Emphasized the importance of timely birth registration for accurate age determination.

Age Determination Process

• The age of a victim of rape is determined as per Rule 12(3) of the Juvenile Justice Rules, 2007.
• The court seeks evidence such as certificates or birth records to establish the age.
• If such documents are unavailable, a medical board may provide an opinion on the age.
• The court can consider a margin of one year while assessing the age if exact determination is not possible.

Use of Medical Opinion

• Medical opinion is sought only when alternative methods for age determination are unavailable.
• The rule specifies that medical opinion is a last resort under Rule 12(3)(b).

Background Information

• The Juvenile Justice Act mandates the use of specific rules to determine a juvenile's age.
• Courts can apply similar standards to ascertain a victim's age, as seen in a specific case.

Evidence from School Certificates

• School certificates played a crucial role in establishing the age of the prosecutrix.
• Various documents including school leaving certificates and admission forms confirmed her age.
• The reliance on these documents by the lower courts was deemed valid in determining her age.

Other Supporting Documents

• Additional documents supported the claim that the prosecutrix was below 16 years old during the incident.
• Minor discrepancies in dates did not diminish the credibility of the evidence presented.

Importance of Medical Opinion

• The High Court's reliance on medical opinion before considering documentary evidence was questioned.
• The trial court's approach of prioritizing documentary evidence over medical opinions was highlighted.

Legal Concepts

• The POCSO Act does not solely rely on the birth certificate of the prosecutrix to determine her age. Medical examination reports, statements of prosecution witnesses, and certificates establishing the prosecutrix's age below 16 years during the incident are considered.
• The High Court judgment in Anoop Singh v. State of M.P. was set aside, and the judgment by the Third Additional Sessions Judge, Satna, was upheld based on the evidence provided.

Ashwani Kumar Saxena v. State of Madhya Pradesh, AIR 2013 SC 553

• The Supreme Court clarified that age determination inquiries under the JJ Act are specific and do not overlap with inquiries related to employment or other certificates. 
• Medical reports are necessary only if there are suspicions of document fabrication.

Shah Nawaz v. State of Uttar Pradesh, (2011) 13 SCC 751

• The Supreme Court emphasized seeking medical opinions only when official birth certificates are unavailable, as per the JJ Model Rules, 2007.

Birad Mal Singhvi v. AnandPurohit, AIR 1988 SC 1796

• This case highlighted the importance of establishing the basis for entries in official records, such as school registers, for them to hold evidentiary value.

Relevance of School Register Entry

• An entry in a school register regarding the date of birth is considered relevant and admissible under Section 35 of the Act. 
• However, an entry about a person's age in a school register holds less evidentiary value in proving the person's age without supporting material.

Eera through ManjulaKrippendorf v. State (Govt. of NCT of Delhi) and Ors (2017)15 SCC 133

Interpretation of POCSO Act

• The case deliberated on whether the term "child" in Section 2(d) of the POCSO Act should include mentally challenged individuals above 18 years. 
• The Supreme Court concluded that such an interpretation would not align with the legislative purpose and Parliament's intent. 
• The court emphasized that for a beneficial/penal legislation like this, judicial interpretation should not extend beyond what Parliament intended.

Mahadeo v. State of Maharashtra, (2013) 14 SCC 637 : (2014) 4 SCC (Cri) 306: 2013 SCC OnLine SC 662 at page 640

• Evidence in Determining Age: The case highlighted the importance of scientific evidence in determining a person's age. The rejection of a doctor's opinion regarding the age range of a prosecutrix without scientific tests like ossification was deemed justified. It was emphasized that relying solely on a doctor's opinion without proper scientific examination is inadequate in legal proceedings.
• Juvenile Justice Rules, 2007: Reference was made to Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007, outlining the procedure for determining a juvenile's age. Rule 12(3) emphasizes the necessity of following specific procedures, including scientific tests, to accurately determine a juvenile's age.

Age Determination Inquiry Process

• Medical opinion is sought only when alternative methods mentioned are unavailable according to Rule 12(3)(b).
• Courts can apply the same criteria for determining the age of a victim as for a juvenile based on statutory rules.

Evidence for Age Determination

• In a specific case, school certificates and documents such as school leaving certificates and admission forms confirm the age of the victim.
• The reliance on such evidence by the courts to establish the victim's age below 18 at the time of the incident was deemed appropriate.

Use of ADHAR Card for Age Verification

• In a case, an ADHAR card was utilized to verify the age of the victim.
• The court noted the age reflected on the ADHAR card without any challenge to its authenticity by the defense.

Sexual Offences Recognized under POCSO Act

• The Act identifies various sexual offenses such as penetrative and aggravated penetrative sexual assault, sexual and aggravated sexual assault, sexual harassment, and child harassment.

Punishments for Offences

• The Act prescribes punishments for the aforementioned offenses to protect children from such acts.

Offences Against Children under POCSO Act

• All the offenses under the POCSO Act carry specific punishments, with aggravated penetrative sexual assault leading to rigorous imprisonment.
• Imprisonment for life is always considered as rigorous imprisonment.
• Offenses are also subject to fines if not explicitly provided otherwise.
• Section 42 and 42A stipulate that if an act is an offense under the Indian Penal Code (IPC), the stricter punishment of the two laws will be applied.

Types of Sexual Offenses Against Children under POCSO Act

• Penetrative sexual assault (Section 3)
• Aggravated penetrative sexual assault (Section 5)
• Sexual assault (Section 7)
• Aggravated sexual assault (Section 9)
• Sexual harassment (Section 11)

Other Provisions under the POCSO Act

• Abetting or attempting to commit an offense is punishable under Section 16.
• Using a child for pornographic purposes, including indecent or obscene representation, is an offense under Section 13.
• Establishment of Special Courts under Section 28 for speedy trials in a child-friendly environment.

Juvenile Justice Act, 2015 (JJ Act)

• The JJ Act defines 'child-friendly' as any behavior or treatment that is humane, considerate, and in the best interest of the child.
• It mandates the creation of institutional mechanisms to cater to children comprehensively and holistically.
• The Act outlines specific offenses against children to ensure their protection and well-being.

Key Principles of JJ Act, 2015

• The Preamble emphasizes a 'child-friendly' approach and the 'best interest of the child' principle in all aspects of a child's care, protection, development, and treatment.

Principles of Juvenile Justice Act, 2015

• Principle of Presumption of Innocence: Any child considered a 'child in conflict with law' is presumed innocent of any criminal intent until the age of eighteen.
• Principle of Dignity and Worth: Children, whether victims or offenders, must be treated with equal dignity by the police. For instance, a child begging on the street should not be labeled a 'beggar' but rather understood as someone forced into that situation.
• Principle of Participation: The police must listen to the child and respect their wishes. For example, if a child wants to stop an interview or go home instead of a Child Care Institution, their views should be considered based on age and maturity.
• Principle of Best Interest: All decisions concerning the child should prioritize their best interest and development. The child's well-being should be the focal point in decision-making, considering the child's needs over other adults' interests.
• Principle of Family Responsibility: The primary responsibility for the care and protection of the child lies with the biological, adoptive, or foster parents. For instance, in a scenario where a child is begging on the street while living with working parents/relatives, it may not be advisable to immediately separate the child.
• Principle of Safety: All measures must be taken to ensure the safety of the child and prevent any harm, abuse, or maltreatment while under the care and protection system. Children in care institutions can sometimes face re-victimization, so it is crucial for the police to guarantee their safety within the system. It is essential to protect children from the accused during investigations or trials.
• Positive Measures: Mobilize all available resources, including those from the family and community, to promote well-being, foster identity development, and create an inclusive environment to reduce children's vulnerabilities. Community policing can help prevent crimes against children by identifying vulnerable populations and communities.
• Principle of Non-Stigmatizing Semantics: Language that blames or accuses a child should not be used during processes involving children, especially in cases of sexual offenses. It is crucial not to use language that labels a child as a criminal, ensuring proper respect and sensitivity.
• Principle of Non-Waiver of Rights: Children should benefit from all provisions of the JJ Act and fundamental rights outlined in the Constitution without any waivers. No authority can claim that these procedures have been waived either by the child or the family/guardians.
• Principle of Equality and Non-Discrimination: Police must not discriminate against children based on any grounds such as sex, caste, ethnicity, place of birth, or disability. Equal access, opportunity, and treatment should be provided to every child, irrespective of background. Avoid assumptions based on socio-economic factors, ensuring fairness and equal treatment for all children.

Principles of Juvenile Justice System

• Principle of Right to Privacy and Confidentiality: The police must ensure that the child's identity is never revealed to the media or anyone else, whether as a victim or as a child in conflict with the law.
• Principle of Institutionalization as a Measure of Last Resort: While the decision to institutionalize a child lies with the CWC or JJB, the police should consider alternatives to separating the child from their family.
• Principle of Repatriation and Restoration: The child's reunification with their family, if in the child's best interest, is a decision primarily made by the CWC or JJB, with the responsibility lying on the Child Care Institution.
• Principle of Fresh Start: Unless in special circumstances, all past records of children in the Juvenile Justice system should be expunged. Police should not disclose these records for character certificates in closed cases.
• Principle of Diversion: Promotion of alternatives to judicial proceedings for children in conflict with the law is encouraged by the JJB, unless it's in the best interest of the child or society to pursue legal action.

Principles of Natural Justice

• Adherence to basic procedural fairness standards, including the right to a fair hearing and rule against bias, is essential for all individuals or bodies acting in a judicial capacity under this Act.

Juvenile Justice Model Rules of 2016

• Non-compliance with the Act and Rules can lead to State Government action against responsible officers or institutions, ensuring effective implementation of the Act.

Norms of a Child-friendly Trial

• A parent or guardian should accompany the child at all times during legal proceedings. 
• In case of accusations against them, another suitable person chosen by the child should fulfill this role.
• When a child is involved in a sexual offence, a fit institution defined in the JJ Act, 2015, or a Support Person appointed by a CWC or a court should be there with the child.
• If the perpetrator is a family member or someone in the shared household, or if the child is in a risky environment, the child should be brought before the CWC for necessary action.
• The decision to remove a child from the custody of parents or guardians in cases of sexual offences can only be made by the Child Welfare Committee as per POCSO Rules.
• Courts should ensure that the child-friendly language is used during proceedings, and translators or interpreters are available if needed.
• Before taking a statement from a child, the court must ensure that the child is willing to provide a statement voluntarily.
• No child's statement should be dismissed solely based on their age during trial proceedings.
• Any images or statements used during the child's interview should not harm the child's mental or physical well-being.
• Interview lengths and questions should be age-appropriate and not overwhelming for the child.
• Alternative, less intimidating methods should be used for interactions and evidence collection for young or incapacitated children.
• The child should not have direct contact with the accused during any stage of the trial.
• Schools should provide permission for missed classes and arrange for remedial classes for the child.
• The child's identity should be kept confidential from the media to protect their privacy.

Roles of Special Court under POCSO Act during the trial

• Special Courts should create a child-friendly atmosphere by allowing a family member, guardian, friend, or relative whom the child trusts to be present.
• Ensure that the child is not repeatedly called to testify in court.
• Ensure that the identity of the child is not disclosed unless it's in the interest of the child, with reasons recorded in writing if disclosure is allowed.
• Determine the age of the child when questioned and adhere to the provisions of the JJ Act, 2015 on age-determination.
• Ensure that the child is not exposed to the accused during evidence recording, using methods like video conferencing or single visibility mirrors.
• Conduct the trial in camera and in the presence of parents or a trusted person of the child.
• Examine the child in a place other than the courtroom if necessary.
• Complete the trial within one year from the date of taking cognizance of the offense.

Guidelines in Alakh Alok Srivastava Vs Union of India Case (2018)

• The Apex court issued guidelines in the case of Alakh Alok Srivastava Vs Union of India and Others reported in 2018 SCC Online SC 478. The court emphasized the importance of timely trials, considering the spirit of the Act.
• 24. It is submitted by Mr. Srivastava that in both the States, the cases are pending at the evidence stage beyond one year. We are absolutely conscious that Section 35(2) of the Act says "as far as possible". Be that as it may, regard being had to the spirit of the Act, we think it appropriate to issue the following directions:
  • The High Courts are responsible for ensuring that cases under the POCSO Act are handled by Special Courts.
  • Special Courts need to be established and given the duty to address cases under the POCSO Act.
  • Special Courts should expedite cases by avoiding unnecessary delays and adhering to the procedures outlined in the Act.
  • Chief Justices of High Courts should form a Committee to oversee the progress of trials under the POCSO Act.
  • The Director General of Police must set up a Special Task Force to ensure proper investigations and witness attendance.
  • High Courts should create child-friendly environments in Special Courts to align with the Act's spirit.

Procedures of the Special Court

• Each state, in consultation with the Chief Justice of the High Court, designates a Sessions Court as a Special Court in every district for trying offenses under the POCSO Act.
• The Special Court can handle POCSO Act offenses as well as those under the Indian Penal Code (IPC) simultaneously.

Cognizance and Disposal

• Special Courts can take cognizance directly without committal.
• The police must submit the charge-sheet to the Special Court under the POCSO Act.
• Evidence of the child must be recorded within 30 days of cognizance, with reasons given for any delays.
• Trials must be completed within one year of taking cognizance, as much as possible (Section 35(2), POCSO Act).

How to Determine if a Child Witness Understands the Difference between Truth and Lie

• In a case at the Delhi High Court, a two-and-a-half-year-old child victim of a brutal crime was questioned by a Magistrate before recording her statement under Section 164, Cr. P.C.
• The questions posed by the Magistrate were deemed inappropriate, such as asking about her school and class, which were irrelevant as the child did not attend any school.
• Abstract questions like understanding the term "truth" and the difference between truth and lie were considered unsuitable even for adults, let alone a young child.

Key Points Highlighted by the Delhi High Court

• Questions like "What does it mean to tell the truth?" and "What does it mean to tell a lie?" are more suitable for young children compared to abstract questions about the difference between truth and a lie.
• Very young children may struggle with narrative responses due to their language skills, making situational multiple-choice questions a better assessment tool.

Examples of Situational Multiple-Choice Questions

• If I told your mom that you just yelled at me, would that be the truth or a lie?
• If you told your mom that I hit you, would that be the truth or a lie?
• If you told your teacher something bad happened, but it didn't, would that be the truth or a lie?
• Competent children should consistently provide correct answers to these questions.

Presumptions under the POCSO Act

• The POCSO Act includes two presumptions related to certain offenses.
• Under Section 29 and 30 of the POCSO Act, when a person is charged with penetrative sexual assault or related offenses, the law presumes that the accused is guilty unless proven otherwise.
• The Special Court assumes the presence of a culpable mental state, including intention, motive, knowledge, or belief in a fact, unless the defense proves otherwise.
• Offenses like sexual assault and harassment require a sexual intent, to which the presumption of culpable mental state can be applied.

Questioning Procedures for Children

• Special Courts are mandated to follow specific procedures when questioning children involved in cases under the POCSO Act.
• Questions must be communicated through the Special Court and not directly posed by lawyers.
• Children should be given breaks during trials when needed.
• Aggressive questioning or demeaning behavior towards the child is prohibited.
• Special Courts can seek the help of translators or special educators when dealing with children who require assistance due to language or disability issues.

Related Offenses under the IPC and POCSO Act

• Offenses like outraging the modesty of a woman under Section 354 of the IPC are parallel to offenses under the POCSO Act.
• This includes acts that involve assault or the use of force with the intent to outrage modesty or the knowledge that it might be outraged.

Legal Provisions

• Sexual Harassment (Section 354-A): Includes unwelcome physical contact, explicit sexual overtures, demands for sexual favors, showing pornography against a woman's will, and making sexually colored remarks by a man.
• Using Criminal Force to Disrobe (Section 354-B): Involves using force to disrobe a woman or compel her to be naked, along with abetting such acts.
• Voyeurism (Section 354-C): Criminalizes acts like watching, capturing, or disseminating images of a woman engaged in private acts where intimate body parts are exposed, or when privacy is expected.
• Stalking (Section 354-D): Includes following, contacting, or attempting to contact a woman despite her disinterest or monitoring her electronically against her will.
• Kidnapping and Compelling Marriage (Section 366): Involves kidnapping or inducing a woman for forced marriage or illicit intercourse.
• Procuration of Minor Girls (Section 366-A): Inducing girls under 18 for illicit activities with another person.Importation of Girls for Illicit Activities (Section 366-B)Bringing girls below 21 for forced or seduced illicit activities.
• Trafficking (Section 370): Includes recruitment, transportation, and exploitation of individuals through coercion, deception, or inducement.
• Rape (Section 375): Expanded to include various forms of penetration without consent, as per the Criminal Law (Amendment) Act, 2013. Rape defined as penetration of the penis into the vagina, urethra, or anus of a woman, or manipulating any body part to cause penetration. Application of the mouth to the vagina, anus, or urethra also constitutes rape. Actions falling under any of the seven descriptions in Section 375, IPC are considered rape. For underage girls, the sixth description applies, involving acts with or without consent when the girl is under eighteen years of age. Causing death or leaving a woman in a persistent vegetative state during rape is covered under Section 376-A. Sexual intercourse by a husband upon his wife during separation without her consent is addressed in Section 376-B. Sexual intercourse by a person in authority or fiduciary relationship exploiting their position to induce sexual acts is detailed in Section 376-C. Gang rape refers to rape by a group or individuals with a common intention, under Section 376-D.

Aggravated Rape under IPC

• Rape on a woman below the age of 16 years (IPC, Section 376(2)(i)).
• Rape on a woman with mental or physical disabilities (IPC, Section 376(2)(l)).
• Rape by a relative, guardian, teacher, or a person in a position of trust or authority (IPC, Section 376(2)(f)).
• Rape by a person in control or dominance over the woman (IPC, Section 376(2)(k)).
• Rape by a police officer within specific locations or on a woman in custody (IPC, Section 376(2)(a)).

Judicial Magistrate's Role in Recording Statements

• Statement Recording Mandate: Judicial Magistrates are mandated to record statements of victims for specific offenses under various sections of the IPC.
• Timely Statement Recording: Statements should be recorded promptly upon the commission of the offense, as per Section 164(5-A)(a) Cr.P.C.
• Immediate Handling of Child Victims: Child victims of sexual offenses under the IPC should be brought before the Magistrate without delay.
• Reasons for Delay: Any delay in presenting rape victims should be documented in the case diary, with reasons provided to the Magistrate.
• Submission of Medical Reports: Investigating Officers must present the Magistrate with copies of the victim's medical examination reports.
• Role of Lady Magistrate: While a Lady Magistrate is preferred, it is not mandatory as per the POCSO Act. Priority lies in prompt statement recording.

When dealing with cases under the POCSO Act, it is crucial to promptly involve the authorities without delay. The child should be taken to a Metropolitan or preferably Judicial Magistrate.