yes, importance, clear

THE PROTECTION OF CHILD FROM SEXUAL OFFENCES ACT, 2021

ABSTRACT

To effectively address heinous crimes such as sexual abuse and sexual child exploitation through less obscure and more stringent legal provisions. The Protection of Child from Sexual Offence (POCSO) Act, 2012 introduced by The Ministry of women and child development.

Chapter 1 talks about preliminary, it also includes various definitions, chapter 2 talks about sexual offence against children: under which first one is penetrative sexual assault, second is aggravated penetrative sexual assault, the third one is sexual assault, the fourth  is aggravated sexual assault, and the fifth one is sexual harassment, chapter 3 includes using child for pornographic purposes, chapter 4 includes abetment and attempt to commit an offence, chapter 5 include procedure for reporting of cases, chapter 6 includes procedure is for recording statement of the child, medical examination of a child, chapter 7 consist of special court’s ,chapter 8 consist of processors and powers of special courts and recording of evidence.

Provisions of the POCSO act, 2012

  • UN convention on the rights of the child
  • Defines a child as any person below 18 years of age
  • Gender neutral law
  • Defines different forms of sexual abuse
  • Relief and rehabilitation of the child
  • Does not recognise consensual sexual acts among children and between child and adult
  • Burden of proof on the accused
  • Special courts for speedy trial

INTRODUCTION

Need for PCSO: – If we go to the history before the formation of this act, we find that there is no act specifically for the harassment of children. They didn’t cover sexual assault, sexual offence, sexual harassment against children .Existing laws were not enough to address sexual offences against children. No specific provisions laws are there to deal with sexual abuse against male children. So it was very important to pay attention and make specific laws fir the protection of children.
This act includes these specific offences under the act:-

  1. Penetrative sexual assault (section 3)
  2. Aggravated penetrative sexual assault (section5)
  3. Sexual assault section 7
  4. Aggravated sexual assault section 9
  5. Sexual harassment of the Child section 11
  6. Use of child for pornographic purpose section 13

Punishment for storing pornographic material involving a child, for commercial purposes – 3 years (section 15)
Other very unique aspects of these acts are that, burden of prove shifted on accused in case of serious offences (section 3, 5, 7and 9)
Normally in jurisprudence the victim has the burden of prove but in this case the burden of proof is on the accused that he is not guilty.

ABETMENT AND ATTEMPTS

Another aspect of this act is abetment. This act takes the abatement seriously and the punishment for abetment is the same as the punishment for actually committing the crime.
In this act if the person is trying to commit an offence but not actually committed an offence then the law will consider this as a committing an offence and the punishment for this is half of the actual offence committed punishment.

for example if the punishment for penetrative sexual assault is 7 years of imprisonment if somebody attempts to commit this offence but not actually commit still he will be punished for half of the actual punishment.
This act also covers trafficking of children in its purview and it is considered as a crime and there is punishment for the same. 

PROCEDURE FOR REPORTING CASES

  • Offence is to be reported to the SJPU or the local police (section 19)
  • SJPU/ local police to provide such care within 24 hours of the report if child is in need of care and protection (section 19 (5)).
  • SJPU/Local police to report the matter to CWC any special court within 24 hours (section 19 (6)).

MANDATORY REPORTING OF CASES

  • Failure in the report of an offence is punishable with imprisonment of six months or with fine or both (section 21(1))
  • A person who is in-charge of any company or an institution, fails to report in respect of offence committed by subordinate under his control, punishable with imprisonment of one year and fine (section 21 (2))
  • If a child fails to report then it should not considered as a punishable offence(section 21(3))
  • False complaint against any person with malicious intent punishable with imprisonment of six month or with fine or both (section 22(1))
  • No civil or criminal liability for giving information in good faith (section 19(7))
  • Protection of identity of child
  • Media not to disclose the identity of the child except when permitted by the special court (section 23)
  • Punishment in case of contravention is imprisonment for not less than six months which may extend to one year

PROCEDUREFOR RECORDING OF THE CHILD

  • Child friendly procedures (section 24)
  • Recording at the residence of child
  • The officer who record’s the statement of a child should not below the rank of sub-Inspector
  • Police officer not to be in uniform
  • Child not to be detained in police station in night
  • Recording of the child’s statement should be taken in the presence of parents or any other person at whom the child has trust and confidence
  • Assistance of translator /interpreter /special educator as the case maybe (section 26 (2))
  • Wherever possible recording also by audio video electronic means.

MEDICAL EXAMINATION (section 27)

  • As per section 164A of CRPC the statement of a child will be recorded.
  • In case of girl child, medical examination is done by lady doctor.
  • Medical examination should be done in the presence of parents.
  • In the absence of child’s parents, examination should be done in the presence of the woman who is nominated by the head of the medical institution.

SPECIAL COURTS

  • A court of session in each district to be designated as special court for speedy trial of POCSO (section 28).
  • A special public prosecutor for every special court should be appointed by the State government (section 32).

PROCEDURE AND POWER OF THE COURT (Section 33)

  • Whenever the trial for POCSO cases is going on the cross examination or examination of the child is not allowed.
  • Frequent breaks for child during trial
  • Child should not called repeatedly for testify
  • Identity of the child not to be disclosed
  • In-camera
  • During the  trial of cases, child not to see the accused at the time of testifying
  • Special court may take assistance of interpreter/translate/ special educator.
  • If offence is committed by a child such child to be de-dealt under the juvenile Justice act, 2015.

COMPENSATION AND LEGAL AID

  • Provision for compensation for immediate relief and long-term rehabilitation litigation of child (section 33(8))
  • Provision for free legal aid (section 40)

MONITORING AND AWARENESS (section 43 and 44)

  • National commission for protection of Child rights (NCPCR) designated as monitoring authority of the act.
  • Onus on Centre and states to spread awareness and training on the provision of the act.
AMENDMENT OF THE ACT

The POCSO act first amended in 2019 after that central government has notified that protection of Child from sexual offences rules 2020 which gives effect to amendments made to POCSO act in 2019.
Ministry of Law and Justice has recently started a scheme for setting up 1023 Fast Track Special Courts (FTFSCs)for rape and POCSO act cases, as a part of national Mission for safety of women(NMSW).

  1. 389 districts in the country -pending cases under POCSO Act exceeds 100.
  2. The recent scheme states that, each of the districts should have one POCSO court (FTSC) which will be set up for one-year.
  3. Financing of the scheme will be on the pattern of Centrally Sponsored Schemes.

POCSO RULE 2020

  • Mandatory police verification of staff
  • Formulate a child protection policy
  • Central government and state government shall provide periodic training 
  • Prepare age appropriate and educational material and curriculum for children 
  • Report the contents

CONCLUSION

To effectively address heinous crimes such as sexual abuse and sexual child exploitation through less obscure and more stringent legal provisions. The Protection of Child from Sexual Offence (POCSO) Act, 2012 introduced by The Ministry of women and child development.
National commission for protection of Child rights (NCPCR) designated as monitoring authority of the act.

Author

Pooja Gaur, Amity Law School, Noida