POCSO ~A PROMISE TO SAVE CHILDREN

RISHAV GUPTA AND RITWIKA BANERJEE

ABSTRACT

The sound of the silence shouldn't be treated with a deaf ear as its echo reaches the labyrinth of those young souls who need to be protected. Our study aims to ascertain the various sexual crimes prevalent in the society against children. We will ascertain how the Ministry of Women and child development are engaging in preventing such sort of activities and fighting against the perpetrators of such heinous crime. The POCSO Act was enacted in 2012 and is gender neutral but still there have been some loopholes which have been unseen for quite some time which is why the new amendment of POCSO is necessary. The April Ordinance amended section 376 of the Indian Penal Code and changed section 42 of the POCSO Act. The amended section 376 mentions the word 'woman' which made rape committed against 'any child' below 12 punishable with death. Though the punishment of 'death' is still a matter of dispute. Further, we have discussed the origin and change in events after the implementation of the POCSO Act. The rights and procedure of trial has been elaborately mentioned as the child is entitled to some basic rights in order to make the child feel comfortable and in the right environment. As they are traumatized at such an early age these rights act as a reassurance to them. These heinous crimes have been tackled with stringent laws and punishments under the IPC and POCSO act. An insight into case law elaborates on the punishments given to the accused to reduce the cases of such crimes against children in the near future.

INTRODUCTION

To deal with the cases of child sexual abuse, The Child Protection Act on Sexual Offenses (POCSO) a special law was introduced by the Government of India in 2012. This Act came into effect on November 14, 2012 and the Laws are underlined below. The POCSO Amendment Bill, was introduced by The Minister of State in Ministry of Women and Child Development Virendra Kumar. The POCSO Act, 2012 is a comprehensive law that provides for the protection of children in cases of sexual abuse, sexual assault and pornography, while protecting the best interests of the child at all stages of the judicial process by providing appropriate procedures for child reporting, recordings, investigations

The Act defines a child as any person under the age of eighteen, and describes various forms of sexual abuse, including incest and indecent abuse, as well as sexual harassment and pornography, and considers sexual abuse to be “implicated” under certain circumstances, such as a child being mentally ill or when the abuse is perpetrated by a person in a position of trust or authority in the care of a child, such as a family member, a police officer, a teacher or a doctor. Sexual orientation is also subject to penalties under the provisions of the Act. The said law imposes a maximum penalty for a maximum of time, a maximum term of life imprisonment, and a fine. In line with international child protection standards, the Act provides for mandatory reporting of sexual offenses. This forces a legal duty on a person who is aware that a child has been sexually abused to report a crime; if he fails to do so, he could be sentenced to six months ‟imprisonment and / or a fine.

The Act also places the police in charge of child protection during investigations. Therefore, police officers who receive a report of child sexual abuse are given the responsibility to make urgent arrangements for the care and protection of the child, such as receiving emergency medical treatment for the child and placing the child in a shelter, should arise. The police are also required to report the matter to the Child Welfare Committee (CWC) within 24 hours of receiving the report, so the CWC can proceed where necessary to make further arrangements for the safety and security of the child.

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The Act in question provides for the medical examination of children in a manner designed to create as little stress as possible. The test should be done in the presence of a parent or other dependent child, and in the case of a female child, by a female doctor.

Special courts set up under the POCSO Act are also child-friendly. There are conditions such as creating a friendly atmosphere for children on the court premises by allowing a family member, guardian, friend or relative, a dependent or dependent child, to be present; to allow the child's normal leave during the trial; and to ensure that the child does not have to confront the suspect during the collection of evidence and cross-examination. According to the special court's understanding, the continuation of the process is also possible on camera, that is, no one other than those related to the case may be present in court, and in the presence of the child's parents or another trusted adult. There are also provisions and guidelines in case the case requires the support of NGOs or social workers as well as specialists (psychologists, translators, etc.) in the pre-trial and child trials phase; and guidelines for interviewing a survivor, including the needs of children and children with disabilities.

CONDITIONS AND PROCEDURE FOR TRIAL UNDER POCSO ACT

The Act provides for the establishment of Special Courts for litigation under the Act, to keep the best interests of the child at the forefront of all justice processes.

● The law includes procedures for children to report, record evidence, investigate and prosecute. These include:

● To record a child's statement of the child's residence or choice, preferably a female police officer under the rank of junior inspector.

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No child will be kept at the police station at night for any reason.

● A police officer must not wear a uniform while recording a child's statement.

A child's statement to be recorded as spoken by the child.

● Assist the interpreter or translator or specialist according to the child's need.

● The help of a special teacher or other person who knows how to communicate with the child in case the child is disabled

The child's medical examination should be done in the presence of the child's parent or any other person whom the child relies on or trusts.

In the event that the victim is a girl child, a medical examination will be performed by a female doctor. Regular child leave during the trial. The child should not be called too often to testify.

There are no aggressive interrogations or character killings of the trial camera trial.

● The law recognizes that the intent to commit an offense, even if it fails for any reason, deserves to be punished.

● An attempt to commit an offense under the Act has been made punishable by up to half the penalty prescribed for committing such an offense.

● The law also provides for penalties for the continuation of a case, such as a criminal offense.

● The law makes it mandatory to report a crime and the recording of the complaint and failure to do so could result in a person being sentenced to six months' imprisonment and / or fined. 18.1t is an act that can be punished if the Police / New Police Service unit fails to report a criminal commission under this act [Section 2141)]

● In the most serious cases of sexual assault, gross sexual assault, Sexual assault and aggravated sexual assault, the burden of proof is passed on to the respondent. This provision has been made in keeping with the high risk and safety of children.

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● To prevent the misuse of the law, you have been punished with a penalty for making a false complaint or proving false information with malicious intent. Such penalties are kept simple (six months) to encourage reporting. If a false complaint is made against a child, the penalty is higher (one year) (Section 22).

● The media is prohibited from disclosing the child's identity without the consent of the Special Court. The penalty for violating this provision of the media may be from six months to one year (Article 23).

● In a speed test, the Act provides proof that a child has been registered within 30 days. Also, the Special Court must complete the trial within a year, as far as possible (Section 35).

● Providing child support and rehabilitation, as soon as a complaint has been lodged with the Department of Child Technology (SJPU) or the local police, will immediately arrange for the child to be cared for, cared for and protected such as a child shelter at a nearby home or hospital within 24 hours of the report.

● The Act obliges the Central Government and the State to disseminate awareness through the use of the media including television, radio and periodically printed media to make the general public, children and their parents and guardians aware of the provisions of this Act

● Where an act or omission is an offense punishable under this Act and also under section 166A, 354A, 354B, 354C, 354D, 370,370A, 375, 376, 376A, 376C, 376D, 376E or section 509 of the Indian Penal Code (45 of 1860), therefore, with the exception of anything contained in any law at that time, the offender shall be found guilty of an offense under this Act or under the Indian Penal Code as it provides for capital punishment. "

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● The POCSO law only applies to child and adult survivors who break the law. In the event that two children have sexual intercourse with each other, or in the event that a child commits a sexual offense against an adult, the Juvenile Justice (Care and Protection of Children) Act, 2000 will apply in this situation.

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PUNISHMENT OF OFFENSES UNDER POCSO ACT

● Penetrative Sexual Assault (Section 3) of a child - Not less than ten years of imprisonment for a lifetime, with a fine (Section 4). Anyone who commits sexual abuse of a child under the age of sixteen will be liable to imprisonment for a term not less than 20 years, but which may extend to life imprisonment, which means imprisonment for the remaining natural life of the person, and shall pay a fine.

● Aggravated Penetrative Sexual Assault (Section 5) - Not less than 20 years' imprisonment, a fine (Section 6)

● Sexual Assault (Section 7) i.e. sexual contact without penetration not less than three years' duration, and a fine (Section 8)

● Aggravated sexual assault (Section 9) by the person in charge - Not less than five years may exceed seven years, and a fine (Section 10)

● Sexual harassment of children (Section 11) - Three years and a fine (Section 12)

● Use of child for pornographic purpose (Section 14) - Not less than five years and valid and in the event of a conviction, seven years and a fine Section 14 (1)

● Use of child for pornographic purposes resulting in penetrative sexual assault: Not less than 10 years of age (in the case of a child under the age of 16, not less than 20 years)

● Use of child for pornographic purposes resulting in aggravated penetrative sexual assault: Not less than 20 years of age and appropriate

● Use of child for pornographic purposes resulting in sexual assault: Not less than three years can extend up to five years

● Use of child for pornographic purposes resulting in aggravated sexual assault: Not less than five years of age

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● Any person, who holds or possesses pornography in any way involving a child, but fails to remove or damage or report the same to designated authorities, as may be prescribed, for the purpose of sharing or transmitting child pornography - Fine of not less than Rs5000; in the event of a second case, a fine of not less than Rs10,000.

● Any person, who holds or possesses pornography in any way involving a child by transferring or distributing or displaying or distributing in any way at any time without the intention of reporting, as may be determined, or used as evidence in court, is liable to imprisonment for any meaning: three years in prison, or a fine, or both.

● Any person, who holds or possesses pornography in any way involving a child for commercial purposes shall be liable for the first offense: Not less than three years' imprisonment which may exceed five years; or by penalty or both. Second or subsequent disposal: not less than five years up to seven years and fine.

CASE LAW

A special court in Mumbai recently ruled that since the Protection of Children from Sexual Offenses (POCSO) Act is provided specifically for juvenile offenders, the defendant should be punished under the Act and not under Section 354 (sexual harassment) of the Indian Penal code.

The facts of the case before the special court are similar to those decided on the bench of the Bombay High Court in Nagpur on January 19, where the man was found guilty under POCSO law but was found guilty under Section 354 of the IPC stating that there was no "sexual contact"

The Supreme Court ruled in HC's decision on January 27 with Attorney General KK Venugopal presenting to the court that he could "set a dangerous precedent".

In a special court order issued on January 18, a 17-year-old girl, who was visiting a public toilet in her area, was dragged by a 25-year-old man into his home. He then forcefully pressed her breasts, and when she started screaming, he clamped her mouth shut .She pushed him away and started screaming, after which her cousins rushed to rescue her. The suspect then fled.

The FIR was placed under Section 8 of the POCSO Act and Section 354 of the IPC, the suspect was later arrested. Section 8 of the POCSO Act prescribes the punishment for sexually abusing a child. Sexual harassment under Section 7 of the Act includes an act committed for the purpose of sexual intercourse, which involves unprotected sexual intercourse. While Section 8 has a minimum sentence of three years, a person convicted under Section 354 of the IPC may be sentenced to at least one year in prison.

The special court held that both cases under Section 354 and Section 8 of the POCSO Act were affirmed by the defendant. Subject to Section 42 of the POCSO Act, which states that, in such cases, the offender must be punished under any law with a severe penalty.

"Although crimes punishable under Section 354 of the IPC and under section 8 of the POCSO Act are warranted, subject to Section 42 of the POCSO Act, a defendant must be punished under the provisions of the POCSO Act as a special provision relating to crimes against children. Act not under section 354 of the IPC” the court said, sentencing the accused to three years in prison.

In the HC ruling now upheld by the high court, the judge ruled that since there was no skin contact with the defendant, the person who put the deceased in his or her home touched his or her breasts, the same as a penalty under Section 354 IPC.

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AUTHOR’S VIEW

The act through its 46 provisions, covers the rules, the increased reporting of crimes against children, which were previously covered by the Indian Penal code (IPC). The extension of the criminal sanctions for the perverse acts of sexual violence under aggravating circumstances, among other things, on the basis of the sentence, the misuse of the trust, or the tutuan the people who are responsible to the situations, as well as employees of the government, the police, the armed forces, and of the management or staff of an educational or religious institution.

It also sets out a procedure for the reporting of the case, including the provision of penalties for failure to report an issue or the failure to make a complaint. It provides the procedures for the registration of the applications that have been submitted to the police and to the court of justice and, in particular, has to be done for the child, as well as the company, in particular the courts of law.

After a preliminary reading of the Law on the POCSO, it may be considered to be a perfect piece of legislation for the protection of children from sexual offences. However, there are some conceptual problems.

The law does not permit the consent of a person under the age of 18 years of age. This means that, when a seventeen-year-old boy or girl, a nineteen-year-old sexual partner, and that he must be registered in compliance with the provisions of the POCSO Act. The law is not expected to have shed some light on what happens when the two minors to engage in sexual activity. Technically, they are like children who are in need of care and protection and children in conflict with the law. In practice, however, the police explained to the girls CNCP, and the boys CCL.

Other problems faced by the victims, is proving the age of the child. As the POCSO Act does not say anything about the actions that should be adopted in order to identify the age of the child, the provisions of article 12 of the Rules of Juvenile justice was the court is appropriate and that the child who is the victim. This is only to recognize the birth certificate, school certificate, a child, or a certificate in order to sign up for this, program. However, a child who is only able to leave the rest of the acts of a legal document, like a passport, must pass through the ossification of bones of the sample. These tests can provide a rough estimate of the age of the child, in the best-case scenario. The POCSO Act should be clear about the actions that should be considered in order to verify the age of the child and to give him an advantage on the ossification test does not give an accurate assessment.

CONCLUSION

Although the POCSO law has succeeded in curbing atrocities committed against children, our study has analyzed some of the issues that are most visible in our society and are worth mentioning. Child sexual abuse is one of the most underreported crimes in India, which has reached epidemic proportions. A recent study on the prevalence of sexual abuse among young people in Kerala, reported that 36 percent of boys and 35 percent of girls have been sexually abused at some point. A similar study conducted by the Government of India in 2017,220 children and adolescents measuring the burden of sexual abuse has revealed shocking results and revealed that every second child in the country is sexually abused; among them, 52.94 percent were boys and 47.06 percent were girls. The highest sexual harassment was reported in Assan (57.27%) followed by Delhi (41%) Andhra Pradesh (33.87%) and Bihar (32.37%) Sexual harassment and trafficking in sex are always rampant and are among the biggest problems in India. Over the past two decades, an increasing number of sexually transmitted infections have been shown in children. Children who are victims of sexual abuse often know the accused in some way. Therefore, the problem of child sexual abuse needs to be addressed through unmistakable and severe punishment. The Child Protection against Sexual Offenses Act (POCSO), 2012 is designed to effectively deal with serious cases of sexual abuse and child sexual abuse. The provisions of the law are made in accordance with the Criminal Act (amendment) Act, 2013 which amended the Indian Penal Code, the Code of Criminal Procedure, 1973, The Indian Evidence Act 1972 and the POCSO Act 2012. of the Criminal Law (Amendment) Act 2013, it also imposes penalties on follow-up, voyeurism, removal of weapons, smuggling and acid attack.

Legislative reform will address the need for stronger measures to combat the growing practice of child sexual abuse in the country and to combat the dangers of a new type of crime, the government said, emphasizing that strict penalties would serve as a barrier.

"It aims to protect the interests of children in times of crisis and to ensure their safety and dignity. The amendment aims to provide clarification on the aspects of child abuse and punishment, sexually abusive (sections 3 to 10), and included punishments of persons in positions of authority such as government employees, employees of educational institutions, police officers, etc.

Remarkably, the law recognizes child sexual abuse involving touch, and that too (sections 11 and 12), such as following, making the child identify with or exposing themselves to the child, and so on.

The POCSO Act also imposes a strict penalty for exposing children, or using them to create child sexual abuse material (CSAM, also called child pornography) under (sections 13 - 15).

Concluding our research paper we would like to say that POCSO does not explicitly accept self-correction, experts say section 11 of the Act can be interpreted to recognize and commit crimes in it. Self-correction involves the act of establishing, building a relationship with the child in person or online to facilitate online or offline sexual contact with the child, section 67 (b) of the Information Technology Act does not make it an offense. Hence, as responsible citizens of India it is not only the sole duty of the Government institutions, but also our perspectives should change and we should immediately report such happenings if we ever come across such incidents, so that necessary steps can be taken to save the innocent lives. Participation of all will help lessen such acts and guarantee social welfare to all.

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[1] Introduction to POCSO Act 2012 https://bnwjournal.com/2020/08/12/analysis-of-pocso-act-2012

[2] Introduction to POCSO Act 2012 https://bnwjournal.com/2020/08/12/analysis-of-pocso-act-2012

[3] Critical Analysis of India’s Protection of Children from Sexual Offences 2012 ( U.Pittusburg School of Law) https://www.jurist.org/commentary/2020/05

[4] MINISTRY OF WOMEN AND CHILD DEVELOPMENT, Model Guidelines under Section 39 of The Protection of Children from Sexual Offences Act, 2012 September, 2013 Guidelines for the Use of Professionals and Experts under the POCSO Act, 2012, https://wcd.nic.in/sites/default/files/POCSO-ModelGuidelines

[5] MINISTRY OF WOMEN AND CHILD DEVELOPMENT, Model Guidelines under Section 39 of The Protection of Children from Sexual Offences Act, 2012 September, 2013 Guidelines for the Use of Professionals and Experts under the POCSO Act, 2012, https://wcd.nic.in/sites/default/files/POCSO-ModelGuidelines

[6] MINISTRY OF WOMEN AND CHILD DEVELOPMENT, Model Guidelines under Section 39 of The Protection of Children from Sexual Offences Act, 2012 September, 2013 Guidelines for the Use of Professionals and Experts under the POCSO Act, 2012, https://wcd.nic.in/sites/default/files/POCSO-ModelGuidelines

Review of POCSO ACT 2012 https://blogs.lse.ac.uk/southasia/2015/12/18/reviewing-indias-protection-of-children- from-sexual-offences-act-three-years-on

[7] DNA INDIA.COM https://www.dnaindia.com/india/report-bombay-hc-judge-who-delivered-shocking-pocso-verdict-secures-1-year-fresh-term-as-additional-judge-2875048

[8] SECTION 67 of IT ACT

CODE OF CRIMINAL PROCEDURE 1973

INDIAN EVIDENCE ACT 1972

POCSO ACT 2012