The Protection of Children from Sexual Offences Act, 2012: A Summary

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“Childhood should be carefree, playing in the sun; not living a nightmare in the darkness of the soul”

Dave Pelzer

Since the last two decade, there has been a rise in the offences related to children. It is threatening and fatal that such crimes have increased drastically over countries. As children are the most vulnerable and weak section of our society, they require more protection and care. The Protection of Children from Sexual Offences Act, 2012 was enacted in 2012 to address the cases of sexual offences and exploitation of children in our country and to have a strict implementation of the existing laws.

Objective and Scope of the Act

This Act is empowered by Article 15 of the Constitution, which states that the State shall make special provisions for children. Also, under Article 39 the State shall, in particular, direct its policies towards securing the children at their tender age and youth and to protect them from any abuse or exploitation.

The Act aims at:

  1. Securing children’s healthy physical, intellectual, emotional and social development.
  2. Undertaking all necessary national and multilateral actions in order to prevent:
  • Any inducement or coercion to involve children in illegal sexual activities.
  • The exploitation of children in prostitution.
  • Use of children in pornography.
  1. Prevent any heinous crime against children.

What is child sexual abuse?

World Health Organization has defined child sexual abuse as "inappropriate sexual behaviour with a child” or “involving a child in sexual activity that he or she doesn’t fully comprehend, is unable to give informed consent to, or that violates the laws and social taboos of society.

Salient Features of the Act

 

  1. Definition of child- The Act defines ‘child’ as any person who is below the age of 18 years, under section 2(d). It includes the biological age of the child but is silent on the mental age.
  2. Burden of Proof- the act states that the burden of proof lies on the defendant and the prosecution would even bear the evidentiary burden of proof as given u/s 29 of the Act.
  3. Enactment of Child-Friendly Procedure in Court- the Act provides measures that are child friendly during the proceedings of the court. for instances, for recording the statement of the child, he/she need not be taken to the police station in case of a sexual offence.
  4. The assistance of Support Persons- the Act assumes that it is very difficult for a child and his family to deal with sexual offences, hence, it provides for a support person during the pre-trial and trial stage of the case, as provided under section 11 and Rule 4(7) of the Act.
  5. Punishment for failure in reporting/recording a case – the Act provides for punishment to any person who fails to report or record the commission of any such offence, under sections 19 (1) and 20 (2).
  6. Confidentiality of Child and Family- the name and identity of the child must not be revealed by the media. If done so, then the Act provides for a punishment of imprisonment of not less than 6 months which can be extended to 1 year or with fine or with both.
  7. Calibration of Offences- the Act provides provisions for punishment for all sexual abuse including, complete or partial penetration, non- penetrative assault, stalking, making, keeping or using of child pornography.

 

Amendments by the Amendment Act of 2019:

 

Offence

POCSO Act, 2012

2019 Bill

Use of a child for pornographic purposes

·    Maximum: 5 years

·    Minimum: 5 years

Use of child for pornographic purposes resulting in penetrative sexual assault

·    Minimum: 10 years

·    Maximum: life imprisonment

·    Minimum: 10 years (in case of child below 16 years: 20 years)

·    Maximum: life imprisonment

Use of child for pornographic purposes resulting in aggravated penetrative sexual assault

·    Life imprisonment

·    Minimum: 20 years

·    Maximum:  life imprisonment, or death.

Use of a child for pornographic purposes resulting in sexual assault

  Minimum: Six years

    Maximum: Eight years

·    Minimum: Three years

·    Maximum: Five years

Use of child for pornographic purposes resulting in aggravated sexual assault

   Minimum: Eight years

      Maximum: 10 years

·    Minimum: Five years 

·    Maximum: Seven years

                                                                     

Landmark Judgements

  1. Siddu vs. State of Karnataka[1]-

the Hon’ble Court, in this case, interpreted Section 34 of the Act and stated that “the object of considering the age of the accused under Section 34 of the POCSO Act 2012 is to decide which is the proper Court to try the accused and also sentence him. If the accused is held to be less than 18 years and is a Juvenile, the learned Sessions Judge will lose his power to conduct the trial and the Juvenile Justice Board alone is competent authority to try and dispose of the case, in accordance with the said special enactment.”

  1. Smt. Parvati Devi vs. State of U. P[2]. –

In this case, the Court held that keeping a victim confined in Nari Niketan against her will cannot be authorised by this Act and if so done would be violative of her fundamental rights.

  1.  The state of Rajasthan vs. Manoj Pratap Singh[3]-

The court, in this case, found that an eight-year-old girl was brutally raped and the immense injury was caused to her before her death, through her post-mortem reports. The Court, in this case, referred to a landmark judgement given by the Supreme Court in the case of C. Chenga Reddy vs. State of A. P.[4] To reach a conclusion which is, the circumstantial evidence when proved and consistent with the hypothesis of guilt justifies giving death sentence to the accused as the graveness and the manner of crime is enough to show its uncommonness.

 

 

[1] 2015 Manu (KA) 0865.

[2] 1992 All Crl C 32.

[3] 2015 Manu (RH) 0853.

[4] (1996) 10 SCC 193.