The Protection of Children from Sexual Offences Act, 2012 (POCSO Act) is a special enactment which provides punishment for penetrative, touch, and non-touch based sexual offences against children and also mandates the establishment of Special Courts and procedures for trial of offences involving children as the statute was enacted to protect children from offences arising out of sexual assault, sexual harassment and pornography and provides for establishment of Special Courts for trial of such offences and for matters connected therewith or incidental thereto. The Act is applicable to the whole of India. The POCSO Act 2012 defines a child as any person below the age of 18 years and provides protection to all children under the age of 18 years from sexual abuse.
The Jurisdiction, as is stated above of Special Court constituted in terms of section 28 of the Act arises when the victim is a child, either boy or a girl of sexual offence fully defined under sections 3 to 22. The Special Court designated under the POCSO Act will have the jurisdiction to try offences in addition to those under the POCSO Act with which the accused has been charged under the I.P.C at the same trial as stated here in above. Where the accused has been charged under the Atrocities Act along with the POCSO Act, the matter will be tried by the Special Court under the POCSO Act and not the Special Court under the Atrocities Act.Unlike ordinary sessions court which cannot take cognizance in original jurisdiction unless under special circumstances the POCSO court can take cognizance of any offence, without the accused being committed to it for trial, upon receiving a complaint of facts which discloses such offence.For the purpose of the speedy trial, the State Government must establish a court of session to be a special court (section 28).The burden of proof lies on accused (section 29). Special public prosecutor to be appointed by the state government, the person appointed must be in practice for at least 7 years.Under POCSO Act the court presumes all the type of culpable mental state of the accused [section 30(1)]. POCSO Act ensures punishment for all offenders irrespective of gender or age.
The preamble of the Act states that the Act was enacted to protect children from sexual assault, sexual harassment, pornography etc.
Section 3 defines penetrative sexual assault,.When a person penetrates any object or part of his body, to an extent, into vagina, mouth, urethra or anus of a child or makes the child do so with him or any other person. Also when he manipulates any part of the body of the child so as to cause penetration or apply his mouth and makes the child do so with such person or any other person.
Section 4 the prescribed punishment is imprisonment for either description for a term which shall not be less than seven years but which may extend to imprisonment for life, and shall also liable to fine.
Section 7 defines sexual assault,-Whoever, with sexual intent, touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault.
Section 8 Whoever commits sexual assault shall be punished with the imprisonment of either description for a term which shall not less than three years but which may extend to five years, and shall also be liable to fine.
Section 11 defines sexual harassment. A person is said to commit sexual harassment upon a child when such a person with sexual intent-
1. Any person utters or makes any sound, or makes any gesture or exhibits any object or part of the body with the intention that such word or sound shall be heard, or such gesture or object or part of the body shall be seen by the child; or
2. Makes a child do such things mentioned hereinafter;
3. Entices or Showing a child anything which may relate to pornography or pornographic purposes, watching or contacts child either directly or digitally, threatens to use a real or fabricated depiction through electronic, film, or digital or any other mode, of any body part of the child
Explanation: Any question that involves “sexual intent” shall be a question of fact.
Section 12 prescribes the punishment of imprisonment for a term, which may extend to three years and shall also be liable to fine
The Act recognizes the aggravated form of the penetrative sexual assault and sexual assault when these are committed by the police officer, public servant, armed personnel, or member of security forces etc. One can say that this act is quite more serious when the protector is the perpetrator.
Section 5 – aggravated penetrative sexual assault and its punishment under Section 6 is minimum of 10 years of imprisonment which may extend to a term of life, and shall also liable for fine.
Section 9 – aggravated sexual assault and its punishment under section 10 is a minimum of 5 years imprisonment which may extend to 7 years, and shall also liable for fine.
Section 13, using a child in any media, for the purpose of sexual gratification, which includes-Representation of sexual organs of a child. Engaging a child in real or simulated sexual acts. Indecent or obscene representation of child shall be guilty of using a child for pornographic purposes. The explanation provided with section 13 states that the expression “use of child” shall include involving a child through any medium like print, electronic, computer or any other technology for preparation, production, offering, transmitting, publishing, facilitation and distribution of the pornographic material.
Section 14 recognises different levels of punishment for the different level of actus rea. Generally, life imprisonment which may extend to 5 years is provided in Sub Section (1), if a person using a child for pornography commits an offence under section 3 of the Act, by directly participating in the pornographic act, the prescribed punishment is life imprisonment and shall also be liable for fine. When a person stores, for commercial purposes any pornographic material which is sexual exploitive of a child, shall be punished with imprisonment for 3 years or with fine or both.
Section 19 (1) makes it mandatory for any person, who has apprehension that an offence under this Act is likely to be committed or has knowledge that such offence has been committed, to report it either to the Special Juvenile Police Unit or to the Local Police.
Section 20 requires a mandatory reporting, when any person encounters with any material or object with are sexually exploitative of the child.
The POCSO Act does not mandate that a statement under Section 164, Cr.P.C. be recorded in every case. However, pursuant to the Criminal Law (Amendment) Act, 2013, Section 164(5-A)(a), the statement of victim against whom offences has been committed under Sections 354, 354-A, 354-B, 354-C, 354-D, 376(1), 376(2), 376-A, 376-B, 376-C, 376-D, 376-E or 509 of the IPC shall be recorded by a Judicial Magistrate. As per the provisions of Section 164(5-A)(a) Cr.P.C.,The statement should be recorded as soon as the commission is brought to the notice of the police. In cases of rape, the Investigating Officer should take the victim within 24 hours to any Metropolitan/preferably Judicial Magistrate for recording the 164 statement and preferably to a Lady Magistrate 1)
The Supreme Court held: “Age determination inquiry contemplated under the JJ Act and Rules has nothing to do with an enquiry under other legislations, like entry in service, retirement, promotion etc. There may be situations where the entry made in the matriculation or equivalent certificates, date of birth certificate from the school first attended and even the birth certificate given by a Corporation or a Municipal Authority or a Panchayat may not be correct. But Court, JJ Board or a Committee functioning under the JJ Act is not expected to conduct such a roving enquiry and to go behind those certificates to examine the correctness of those documents, kept during the normal course of business. Only in cases where those documents or certificates are found to be fabricated or manipulated, the Court, the JJ Board or the Committee need to go for medical report for age determination.”
The court relied on ADHAR card for determining the age of the prosecutrix “We have perused the Aadhar Card (Ex.PW-11/H) and find that, in the said Card, the age of ‘S’ is, indeed, reflected as six years. We may also note that the veracity of the said Aadhar Card has not been questioned by the defence, at any stage of proceedings.”
In this case2) Kerala High Court Upheld the Constitutionality Of Reverse Burden Of Proof Under Sections 29 & 30
The Court said:
“Though, it may appear that in the light of presumptions, the burden of proof oscillate between the prosecution and the accused, depending on the quality of evidence let in, in practice the process of adducing evidence in a POCSO case does not substantially differ from any other criminal trial. Once the recording of prosecution evidence starts, the cross examination of the witnesses will have to be undertaken by the accused keeping in mind the duty of the accused to demolish the prosecution case by an effective cross examination and additionally to elicit facts to rebut the statutory presumptions that may arise from the evidence of prosecution witnesses. Practically, the duty of prosecution to establish the foundational facts and the duty of accused to rebut presumptions arise, with the commencement of trial, progresses forward along with the trial and establishment of one, extinguishes the other. To that extent, the presumptions and the duty to rebut presumptions are co-extensive”.