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THE LEARNING LAWS
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What is POCSO Act?(पॉक्सो एक्ट क्या है?)
The POCSO Act, 2012 came into force with effect on November 14, 2012, along with the Rules framed thereafter. The Act is a
comprehensive law enacted to protect children from a slew
of sexual offenses like sexual assault, sexual harassment, and pornography while
safeguarding the interests of the child at every stage of the judicial process
by introducing a child-friendly mechanism for reporting, recording evidence,
investigation and speedy trial of offenses through special courts.
This law defines a child as any person below the age
of 18 years. It defines different forms of sexual offenses including
penetrative and non-penetrative assault, and even sexual harassment and
pornography. The Act deems a sexual assault to be ‘aggravated’ under
certain circumstances such as when the abuse is committed by someone who is a
family member or someone in a position of trust or authority like a teacher,
doctor, or even police officer.
It prescribes stringent punishment as per the gravity of the offense. The maximum term of rigorous imprisonment for life and a fine. Indian Penal Code’s (IPC) Section 44 (1) of the special children’s law provides that the National Commission for Protection of Child Rights (NCPCR) along with the State Commission for Protection of Child Rights (SCPCR) monitor the implementation of the provisions of the Act.
यह कानून एक बच्चे को 18 वर्ष से कम आयु के किसी भी व्यक्ति के रूप में परिभाषित करता है। यह विभिन्न प्रकार के यौन अपराधों को परिभाषित करता है जिसमें भेदक और गैर-प्रवेश करने वाला हमला, और यहां तक कि यौन उत्पीड़न और अश्लील साहित्य भी शामिल है। अधिनियम कुछ परिस्थितियों में यौन हमले को 'बढ़ी हुई' मानता है जैसे कि जब दुर्व्यवहार किसी ऐसे व्यक्ति द्वारा किया जाता है जो परिवार का सदस्य है या किसी शिक्षक, डॉक्टर या यहां तक कि पुलिस अधिकारी जैसे विश्वास या अधिकार की स्थिति में है।
यह अपराध की गंभीरता के अनुसार कड़ी सजा का प्रावधान करता है। आजीवन कारावास और जुर्माने की अधिकतम अवधि। भारतीय दंड संहिता (आईपीसी) विशेष बाल कानून की धारा 44 (1) में प्रावधान है कि राष्ट्रीय बाल अधिकार संरक्षण आयोग (एनसीपीसीआर) राज्य बाल अधिकार संरक्षण आयोग (एससीपीसीआर) के साथ मिलकर इसके प्रावधानों के कार्यान्वयन की निगरानी करता है। कार्य।
Three major takeaways:
- Any children's housing
institution or coming in regular contact with them is required to conduct
a periodic police verification and a thorough background check of each
employee who interacts with a child.
- An institution must give
special regular training to sensitize its employees on child
safety and their protection.
- More importantly, it has to adopt a child protection policy that is based on the principle of zero tolerance for violence against children.
- किसी भी बच्चों के आवास संस्थान या उनके साथ नियमित संपर्क में आने के लिए समय-समय पर पुलिस सत्यापन और बच्चे के साथ बातचीत करने वाले प्रत्येक कर्मचारी की पूरी पृष्ठभूमि की जांच करना आवश्यक है।
- एक संस्था को अपने कर्मचारियों को बाल सुरक्षा और उनकी सुरक्षा के प्रति संवेदनशील बनाने के लिए विशेष नियमित प्रशिक्षण देना चाहिए।
- इससे भी महत्वपूर्ण बात यह है कि इसे बाल संरक्षण नीति अपनानी होगी जो बच्चों के खिलाफ हिंसा के लिए जीरो टॉलरेंस के सिद्धांत पर आधारित हो।
Punishments for POCSO (POCSO के लिए सजा)
The POCSO
Amendment Bill provides stringent punishments for other crimes against those below 18 years of age. The POCSO Bill also aims at making offenses against children ‘gender neutral’.
The POCSO
Bill seeks to award strong punishment when drugs are administered to
children to bring about early sexual maturity. Speaking on the Bill, Irani said
the legislation introduced a minimum jail term of 20 years or for the entire
life and death penalty in rare cases according to the courts' discretion.
According
to Irani, around 620,000 sexual offenders were listed in the national database
and they were being tracked by investigative agencies. She also expressed
concern that the number of juvenile perpetrators of crimes was increasing. The
minister also gave the suggestion to MPs that POCSO cases be taken up at
district-level meetings.
Cutting
across party lines, members supported amendments to the POCSO Act, but some of
them demanded that Bill be referred to a standing committee or a select
committee as it made certain offenses punishable with death.
POCSO संशोधन विधेयक 18 वर्ष से कम उम्र के लोगों के खिलाफ अन्य अपराधों के लिए कड़ी सजा का प्रावधान करता है। POCSO विधेयक का उद्देश्य बच्चों के खिलाफ अपराधों को 'लिंग तटस्थ' बनाना भी है।
POCSO बिल बच्चों को जल्दी यौन परिपक्वता लाने के लिए ड्रग्स दिए जाने पर कड़ी सजा देने का प्रयास करता है। विधेयक पर बोलते हुए, ईरानी ने कहा कि कानून ने अदालतों के विवेक के अनुसार दुर्लभ मामलों में न्यूनतम 20 साल की जेल या पूरे जीवन और मृत्युदंड की सजा का प्रावधान किया है।
ईरानी के अनुसार, लगभग 620,000 यौन अपराधियों को राष्ट्रीय डेटाबेस में सूचीबद्ध किया गया था और उन्हें जांच एजेंसियों द्वारा ट्रैक किया जा रहा था। उन्होंने यह भी चिंता व्यक्त की कि अपराधों के किशोर अपराधियों की संख्या बढ़ रही है। मंत्री ने सांसदों को यह भी सुझाव दिया कि पॉक्सो मामलों को जिला स्तर की बैठकों में लिया जाए।
पार्टी लाइनों में कटौती करते हुए, सदस्यों ने पॉक्सो अधिनियम में संशोधन का समर्थन किया, लेकिन उनमें से कुछ ने मांग की कि विधेयक को एक स्थायी समिति या एक चयन समिति के पास भेजा जाए क्योंकि इसने कुछ अपराधों को मौत की सजा दी है।
1. 'Love affair' no ground for bail in POCSO case, SC set aside HC order:
A bench of Justices DY Chandrachud and
Surya Kant set aside the order of a single judge of Jharkhand High
Court granting bail to an accused in a case registered under the Protection of
Children from Sexual Offences (POCSO) Act 2012 and IPC.
It said The High Court was manifestly in
error in allowing the bail application. The reason is that from the statement
under Section 164 and the averments in the FIR, it appears that 'there was a
love affair between the appellant and the second respondent and that the case
was instituted on the refusal of the second respondent to marry the appellant,
is specious.
The bench said, Once, prima facie, it
appears from the material before the Court that the appellant was barely
thirteen years of age on the date when the alleged offense took place, both the
grounds, namely that 'there was a love affair between the appellant (girl) and
the second respondent (accused) as well as the alleged refusal to marry, are
circumstances which will have no bearing on the grant of bail.
The bench in its order passed on Monday
said that "having regard to the age of the prosecutrix and the nature and
gravity of the crime, no cause for the grant of bail was established".
The order of the High Court granting bail
has to be interfered with since the circumstances which prevailed with the High
Court are extraneous given the age of the prosecutrix, having regard to
the provisions of Section 376 of IPC and Section 6 of POCSO.
We accordingly set aside the impugned order of the High Court dated August 2,
2021, it said.
The bench directed that the accused should
surrender forthwith to custody.
Senior advocate Anand Grover and advocate
Fauzia Shakil, appearing on behalf of the girl, submitted that the date of
birth of the victim is January 1, 2005, and at the time of the alleged offense,
she was just about thirteen years of age.
On the contention of advocate Rajesh
Ranjan, appearing for the accused, that he is a student studying in an
engineering college and he will not get bail throughout the trial, the bench
requested that in the facts and circumstances, the Special Judge, POCSO, who is
in charge of the trial shall complete the trial within six months from the date
of receipt of a certified copy of this order.
Grover submitted, Having regard to the
provisions of Section 376 IPC and POCSO, the reasons which weighed with the
High Court are, ex facie, specious and, the bail application ought not to
have been allowed.
Ranjan on the other hand submitted that
though the charge sheet has been submitted, there has been no recovery of the
allegedly obscene videos nor is there any medical evidence to indicate that the
girl had any sexual contact with the accused.
The top court noted that on January 27,
2021, an FIR was registered in Kanke police station of Ranchi district for
offenses punishable under Section 376 of the Indian Penal and provisions of
the POCSO Act.
In the FIR, it was alleged by the petitioner
girl that, at the material time, when she was a minor, the second respondent
(accused) had taken her to a residential hotel and had entered into a sexual
relationship with the assurance of marrying her.
She had alleged that the accused was
refusing to marry her and that he had sent certain obscene videos to her
father.
It noted that the application for
anticipatory bail filed by the accused was rejected by the Special Judge,
POCSO, Ranchi on February 18, 2021, after which he surrendered on April 3, 2021,
and sought bail.
The police filed the charge sheet before
the Special Judge on May 24, 2021, and his bail plea was allowed by the Single
Judge of the Jharkhand High Court.
1. Trial in 99% of POCSO cases was still pending by Dec 2020:
D Despite a dip in crimes against children, the trial of 99 % of cases under the POCSO Act was still pending by December 2020, a Praja Foundation report said on Thursday. According to the foundation data, in 94 per cent of the total 1,197 cases under the Protection of Children Against Sexual Offences lodged in 2020, the victims were girls with the highest number of 721 rape cases and 376 sexual assault cases.
The report pointed out that while POCSO Act
was enacted with the sole purpose of providing speedy justice to minors, the
trial of 99% of cases of crimes against children was pending as of
December 2020.
According to the data, 42 per cent of the total rape cases were committed against children below 18 years in 2020, compared to 47% in 2018 and 45% in 2019. The data showed the highest number of rape victims were in the age group of 12 to 18 years (620 out of 721 in 2020) and that in 95 per cent of these rape cases under the POCSO Act, offenders were known to victims.
The data highlighted that out of the 67 cases under the POCSO Act against boys, 93 per cent were unnatural offenses. The low proportion of reported male cases to the total cases also reflects the stigma attached to the reporting of sexual crime against males.
In its report, the Praja foundation claimed that in 2020, of the total IPC cases investigated, the charge sheet was filed only in 28 % of cases while the investigation in 58 % of cases of crime against women and 56 % of crimes against children were incomplete. The report pointed out a 20 % shortage of police sub-inspectors, responsible for investigating cases as of March 2021.
Out of 3,32,274 IPC cases to be tried in
Delhi courts, the trial of 92 % of cases was pending as of December
2020, reflecting an overburdened judiciary leading to the delayed justice for
victims.
The trial of 99 % of cases of crime
against children was pending as of December 2020, it stated.
When contacted Delhi Police Spokesperson Chinmoy Biswal said, In Delhi, we register crime against children and POCSO cases promptly and take a deadline of 60 days under the POCSO Act for investigation very seriously. A majority of the 56 % of pending cases last year have been charge-sheeted and moved to court. Understandably there will always be cases under investigation, upon completion of which these are sent to courts. Pending investigation means cases are in the process of investigation and charge sheeting," he added.
"POCSO cases and crime against
children remain are our top priority, he asserted.
We have a higher charge-sheeting rate of 99.06 % than the all India rate of 94.7 % or metro cities rate of 96.8 % in POCSO cases, Biswal said. We also have a much higher conviction rate of 80 % than that of metro cities 42.4 % and an all-India rate of 39.6 percent, he added.
1. Oral sex with minor not 'aggravated sexual assault' under POCSO HC:
Skin-to-skin contact is not essential for POCSO offense Supreme Court Said:
In the landmark verdict, the Supreme Court on Thursday ruled that the most important ingredient of constituting sexual assault under Section 7 of POCSO is sexual intent and not skin-to-skin contact with the victim.
A Bench of Justices UU Lalit, S Ravindra Bhat, and Bela M
Trivedi set aside the controversial Bombay High Court judgment that held that
groping a minor's breast without "skin to skin contact" cannot be
termed as sexual assault as defined under the Protection of Children from
Sexual Offences (POCSO) Act.
In its judgment, the Bench said that skin-to-skin contact is
not essential for POCSO offense as held by the Bombay High Court.
It said that giving a narrow meaning of physical contact to
confine it to skin-to-skin contact would defeat the purpose of the POCSO Act
and it cannot be accepted.
The Court's order came on petitions filed by Attorney General
KK Venugopal, the State of Maharashtra, and the National Commission for Women against the January 19 judgment passed by the High Court, which held that
pressing the breast of a 12-year-old child without removing her top will not
fall within the definition of 'sexual assault'.
On January 27, the top court had stayed the operation of the
January 19 verdict of the Nagpur bench of the Bombay High Court after Attorney
General had mentioned and said the order is "very disturbing" and
will set a "dangerous precedent".
Attorney General, NCW, Maharashtra, Youth Bar Association of
India while challenging the High Court order in the apex court stated that such
observations would have a wide impact on the entire society and public at
large.
Seeking to set aside the High Court order the appeals said
that the observations made by the High Court were unwarranted and concerned the
modesty of a girl child. One of the pleas pointed out that while passing the
impugned judgment, the Single Judge recorded the name of the victim's child. As
per law, the names of victims of certain offenses cannot be published.
Attorney General of India KK Venugopal had argued that
skin-to-skin contact is not expressed as an ingredient to constitute a crime of
sexual assault under the POCSO Act.
The High Court judge lacked the sensitivity to appreciate
that POCSO Act is meant to prevent sexual offenses against children who are
unable to defend themselves, AG had said.
Venugopal had earlier told the apex court that there were
43,000 offenses registered under POCSO Act in the last year and that it's
an outrageous judgment so far as POCSO is concerned.
"The judge said skin-to-skin contact is required. This
would mean someone can wear a surgical glove and exploit a child and get away
scot-free. The accused tried to bring down the salwar and even then bail was
granted. This would be a precedent for magistrates in Maharashtra. Better
appreciation would be needed for the definition of sexual assault. There are
43,000 POCSO offenses in the last year," AG had said during the
arguments.
Justice Pushpa Ganediwala of the Nagpur bench of the Bombay
High Court, while passing judgment on January 19, had held that there must be
"skin to skin contact with sexual intent" for an act to be considered
sexual assault. Mere groping will not fall under the definition of sexual
assault, the judge had said.
The judge had modified the order of a sessions court, which
had held a 39-year-old man guilty of sexual sexually assaulting a 12-year-old
girl and sentenced him to three years of imprisonment.
As per the prosecution and the minor victim's testimony in
court, in December 2016, the accused had taken the girl to his house in Nagpur
on the pretext of giving her something to eat and then gripped her breast and
attempted to remove her clothes.
However, the High Court said since he groped her without
removing her clothes, the offense cannot be termed as sexual assault and,
instead, constitutes the offense of outraging a woman's modesty under IPC
section 354.
1. Attorney General for India v. Satish and another (2021):
The issue at hand was how should Section 7 of the POCSO Act,
2012 be interpreted to provide a fair and reasonable solution to the
cases falling under its ambit. The present judgment observed that Section 7
covers both direct and indirect touch thereby highlighting that the logic in
the High Court’s opinion quite insensitively trivializes indeed legitimizes a
whole spectrum of undesirable behavior which undermines a child’s dignity and
autonomy, through unwelcome intrusions.
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 to prevent
harm and promote the remedy. In this view, the top court’s judgment observed
that the High Court’s interpretation not only restricts the implementation of
the legislation but also seeks to pervert its objective.
1.
Jarnail Singh v.
State of Haryana (2013):
The Supreme Court of India while
deciding the case of Jarnail Singh v. State of Haryana (2013) has observed
that the procedure which is used to determine the age of a child who is in
conflict with the law has been provided by the Juvenile Justice (Care and Protection of Children) Rules,
2007, can be followed in cases falling under POCSO Act, 2012 as
well. In the present case, the appellant was accused of kidnapping and raping
the daughter of Savitri Devi, when her daughter was sleeping. The Apex
Court observed that Rule 12 of the
erstwhile Juvenile Justice (Care and Protection of Children) Rules, 2007, which
detailed the age determination process for children in conflict with the law
should be applied to determine the age of a child victim. Applying the same,
the Court convicted the appellant, Jarnail Singh.
1. Alakh
Alok Srivastava v. Union of India and Others (2018):
In the case of Alakh Alok
Srivastava v. Union of India and Others (2018), 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 aforementioned Act. The guidelines are
provided hereunder:
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.
2. Hari
Dev Acharya Pranavanand and Ors v. State (2021):
The Delhi High Court
recently stated in the case of Hari Dev Acharya Pranavanand and Ors v. State (2021) that as the Protection of Children
from Sexual Offenses (POCSO) Act, 2012 is silent on whether two separate
incidents can be combined in a single First Information Report (FIR), the
provisions of the Code of Criminal Procedure, 1973
(CRPC) would apply,
allowing joint trial if the offences were committed during the same
transaction. A single-judge bench of the Hon’ble High Court, Justice Manoj
Kumar Ohri, made the remark while dismissing a number of people’s petitions
challenging the summons issued by a special POCSO court and the additional
charge sheets.
The summons and charge
sheets were issued in August 2019 in connection with an incident in which a
youngster studying at a Gurukul in Delhi was reportedly raped by a superior.
The accused took the youngster to the teacher’s room and sexually attacked him.
The boy had then informed his friend about the same. They went to the police
station and renewed their complaint, but because his mother and sister had
already arrived, a solution was achieved under the pressure of four people.
According to Justice Ohri, Section
219 of the CRPC allows a person who commits three
similar offences within a twelve-month period to be prosecuted at the same
time, and because both offences are punished under the same section of the IPC
and POCSO, they constitute the same transaction. Therefore, the summoning
orders were upheld and the petitions were dismissed.
CONCLUSION:
These are a few landmark
cases of The POCSO Act. The main objective of
the POCSO Act is to provide protection offense against sexual assaults
and abuse and every kind of sexual offense. But the objective of this Act
cannot be fulfilled as long as the topics of safe sex, good touch, and bad touch
remain taboo, in Indian families. The majority of rural India is still
unaware of the existence of such Act which mainly aims to curb sexual violence
towards children, thus more often than not, any instance of a sexual offense committed against a child ends in child marriage or exclusion of the family
from the society or complete silence about such heinous crime committed against
the child.
The only solution to this issue is the introduction of
sex education in schools, and the sensitization of parents, family members as well as
police officers and lawyers. Understanding the issue of sexual violence against
children has to be made a priority for all because only through understanding,
the silence of shame and confusion around the topics of sexual offenses can be
broken.
Also, it is high time to amend the POCSO Act to eliminate all the shortcomings of the Act which prevent from justice being served. All-inclusive and detailed definitions of offenses would be a welcome change in the Act as lack of clarification and lucidity makes that Act undesirable legislation. The legislature must take cautious yet knowledgeable steps to implement the Act more effectively.
ये POCSO अधिनियम के कुछ ऐतिहासिक मामले हैं। POCSO अधिनियम का मुख्य उद्देश्य यौन उत्पीड़न और दुर्व्यवहार और हर तरह के यौन अपराध के खिलाफ सुरक्षा अपराध प्रदान करना है। लेकिन इस अधिनियम का उद्देश्य तब तक पूरा नहीं हो सकता जब तक भारतीय परिवारों में सुरक्षित सेक्स, गुड टच और बैड टच के विषय वर्जित हैं। अधिकांश ग्रामीण भारत अभी भी इस तरह के अधिनियम के अस्तित्व से अनजान है जिसका मुख्य उद्देश्य बच्चों के प्रति यौन हिंसा को रोकना है, इस प्रकार अधिकतर नहीं, किसी बच्चे के खिलाफ किए गए यौन अपराध का कोई भी उदाहरण बाल विवाह या परिवार के बहिष्कार में समाप्त होता है। बच्चे के खिलाफ किए गए इस तरह के जघन्य अपराध के बारे में समाज या पूरी चुप्पी।
इस मुद्दे का एकमात्र समाधान स्कूलों में यौन शिक्षा की शुरूआत और माता-पिता, परिवार के सदस्यों के साथ-साथ पुलिस अधिकारियों और वकीलों को संवेदनशील बनाना है। बच्चों के खिलाफ यौन हिंसा के मुद्दे को समझना सभी के लिए प्राथमिकता होनी चाहिए क्योंकि समझ से ही यौन अपराधों के विषयों पर शर्म और भ्रम की चुप्पी को तोड़ा जा सकता है।
साथ ही, अधिनियम की उन सभी कमियों को दूर करने के लिए पॉक्सो अधिनियम में संशोधन करने का समय आ गया है जो न्याय की पूर्ति में बाधा डालती हैं। अपराधों की सर्व-समावेशी और विस्तृत परिभाषाएं अधिनियम में एक स्वागत योग्य बदलाव होंगी क्योंकि स्पष्टीकरण और स्पष्टता के अभाव में यह अधिनियम अवांछनीय कानून बना देता है। अधिनियम को अधिक प्रभावी ढंग से लागू करने के लिए विधायिका को सतर्क लेकिन जानकार कदम उठाने चाहिए।
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