Written by: Chidambra Sharma & Anirudh Singh Malik
The Protection of Children from Sexual Offences Act, 2012 was enacted on 19th June 2012. Prior to the enactment of the POCSO Act, child sexual assault was only protected under Sections 354 and 375 of the Indian Penal Code, 1860, which failed to provide justice being gender-specific provisions. Therefore, there was an absolute need for a specific and comprehensive legislation to protect children from sexual offences, which were increasing multi-fold in the country and provide a robust justice mechanism for the victims of sexual abuse. With the efforts of various NGOs, activists and the Ministry of Women and Child Development, POCSO Act, 2012 was enforced on 14th November 2012. The act stipulates provisions regarding the protection of children from sexual assault and pornography and lays down the procedure for implementation of these laws.
Section 2(1)(d) of the Act, states that “a child means any person below the age of eighteen years”. Therefore, POCSO Act is applicable to all persons under the age of 18 years. In the Writ Petition of Imran v. State of Delhi through Commissioner of Delhi Police & Ors., the Hon’ble High Court on 06.07.2022 observed that POCSO Act will be applicable to a minor muslim girl who has attained the age of puberty. Child victim was aged 16 years and 5 months on 01.01.2022 i.e. the date of the first incident. Age of puberty as per Muslim Law is 15 years.
Justice Jasmeet Singh observed that:
“I am in agreement with Mr Mahajan that POCSO is an Act for protection of children below 18 years of age from sexual abuse and exploitation. It is not customary law specific but the aim of the Act is to protect children below the age of 18 years from sexual abuse. The statement of object of the POCSO Act states that the Act is aimed to secure the tender age of the children and ensure they are not abused and their childhood and youth is protected against exploitation. For the reasons above, I reject the contention of the petitioner that according to Muslim law since the victim has attained the age of puberty the rigours of POCSO Act will not be applicable.”
In India, POCSO Act would be incomplete without other provisions of the Code of Criminal Procedure, 1973, Indian Penal Code, 1860, Juvenile Justice Act, and Information Technology Act, 2000.
The act contains offences of Penetrative Sexual Assault, Aggravated Penetrative Sexual Assault, Sexual Assault, Aggravated Sexual Assault, Sexual Harassment, Child Pornography and punishment therefor for all the offences. We will discuss these offences in detail in this blog.
- Penetrative Sexual Assault
Section 3 of the POCSO Act deals with Penetrative Sexual Assault and Section 4 deals with its punishment therefor. A person is said to have committed penetrative sexual assault if any of the following offences has been committed by him:
- he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person; or
- he inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of the child or makes the child to do so with him or any other person; or
- he manipulates any part of the body of the child so as to cause penetration into the vagina, urethra, anus or any part of body of the child or makes the child to do so with him or any other person; or
- he applies his mouth to the penis, vagina, anus, urethra of the child or makes the child to do so to such person or any other person
Penetrative Sexual Assault is punishable under section 4 of the Act with imprisonment of not less than 10 years which may extend to imprisonment for life, and fine. Penetrative sexual assault on a child under the age of sixteen is punishable by a period of imprisonment of at least twenty years and up to life in prison, which means that the offender will be imprisoned for the duration of their natural lives, in addition to a fine. The punishment imposed must be fair and reasonable, and compensation must be provided to the victim to cover medical costs and rehabilitation costs.
- Aggravated Penetrative Sexual Assault
An offence of aggravated penetrative sexual assault is said to have been committed as per section 5 of the POCSO Act when:
- A police officer commits penetrative sexual assault on a child (section 3) within the local limits of a police station or the premises where he is appointed, or in the course of his duties or otherwise or where he is known as or identified as a police officer.
- A member of armed forces or security forces commits penetrative sexual assault on a child within the limits of the area to which the person is deployed or in any areas under the command of the forces or armed forces, or in the course of his duties or otherwise or where such person is known or identified as a member of the security or armed forces.
- A public servant commits penetrative sexual assault on a child
- A person being on the management or staff of the jail or remand home or protection home or observation home or any other facility or any government or private hospital or any educational or religious institution or any other institution commits penetrative sexual assault on a child within that place of custody or hospital or institution.
- When gang penetrative sexual assault is committed on a child
- Sexual assault is committed on a child using deadly weapons, fire, heated substance or corrosive substance
- Penetrative sexual assault on a child causes grievous hurt or causes bodily harm and injury or injury to the sexual organs of the child
- Penetrative Sexual assault on the child physically incapacitates the child or causes the child to be mentally ill or causes impairment of any kind, either permanent or temporary which renders the child with an inability to perform regular tasks. Sexual assault which inflicts the child with Human Immunodeficiency Virus or any other life threatening disease or infection which renders the child physically incapacitated or mentally ill to perform regular tasks either temporarily or permanently.
- In case of female child, makes the child pregnant as a consequence of such sexual assault or commits penetrative sexual assault on a child knowing that the child is pregnant.
- A person takes advantage of a child’s mental or physical incapacity and commits penetrative sexual assault on them or whoever commits sexual assault on a child below twelve years of age or whoever commits sexual assault on the child more than once or repeatedly.
- When a person commits penetrative sexual assault with a child, associated whether by blood, adoption, marriage, guardianship, or foster care; while they are in a domestic partnership with the child’s parents; or while they are living in the same or a shared home.
- When a person being in an authoritative or trust position commits penetrative sexual assault with the child.
- When a person commits penetrative sexual assault on a child and attempts to murder the child.
- When a person commits penetrative sexual assault on a child and has previously been found guilty of any offence under this Act or any sexual offence punishable by any already in effect legislation
- When a person commits penetrative sexual assault on the child and makes the child to strip or parade naked in the public.
The amended definition of aggravated penetrative sexual assault after the 2019 Amendment, now includes two additional grounds. These include (i) assaults that result in a child’s death and (ii) assaults carried out in the midst of a natural disaster or other violent circumstances.
Currently, aggravated penetrative sexual assault carries a sentence of rigorous imprisonment of 20 years to life in prison and a fine or with death under Section 6 of the Act. The fine imposed shall cover medical costs and rehabilitation costs of the victim.
- Sexual Assault
Sexual assault is stipulated under Section 7 of the POCSO Act and the punishment for this offence is given under Section 8. Sexual assault is said to have been committed when someone touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, breast or anus of such person or any other person or does any other act which involves physical contact without penetration. The important consideration here is that such an act should be committed with a sexual intent to be classified as sexual assault.
A person who commits sexual assault is punishable for not less than 3 years imprisonment and fine. Such a term may extend to 5 years.
In the case of Attorney General for India v. Satish and another (2021), the Supreme Court observed that Section 7 covers both direct and indirect touch. Any undesirable behaviour which undermines a child’s dignity and autonomy, through unwelcome intrusions shall be considered. Not covering both direct and indirect touch will defeat the purpose of the legislation.
In the case of Subhankar Sarkar v. State of West Bengal (2015), the victim’s medical examination revealed no evidence of penetrative sexual assault, but scratch marks on the victim’s body were discovered, demonstrating the use of force. As a result, the accused was found guilty under Sections 8 and 12 of the POCSO Act.
- Aggravated Sexual Assault
Section 9 of the POCSO Act contains provisions regarding aggravated sexual assault and section 10 consists the punishment therefor. All the grounds for aggravated sexual assault are similar to that of aggravated penetrative sexual assault under Section 5 of the Act, however an additional ground is provisioned in section 9 for aggravated sexual assault, according to which aggravated sexual assault is said to have been committed when a person persuades, induces, entices or coerces a child to get any drug, hormone, or chemical substance supplied to them, or who directs someone else to do so with the intent of the child to develop early sexual maturity. This ground was added by the 2019 Amendment.
Anyone who commits an act of aggravated sexual assault is punished with fine and imprisonment of a term that must not be less than five years but may extend to seven years.
- Sexual Harassment
As per Section 11 of the POCSO Act, sexual harassment is said to have been committed on a child by any person when such person with sexual intent does any of the following acts:
- Utters any phrase, produces any sound, makes any gesture, or displays any item or part of the body with the goal that the child will hear the word, hear the sound, see the gesture, see the object, or see the part of the body.
- Makes the child show his body or any part of his body to be seen by such person or any other person.
- Shows anything in any form or media for pornographic purposes.
- Regularly or continuously watches, follows, or communicates with a child, whether in person or by electronic, digital, or other means.
- Threatens to use, in any form of media, a real or fictional portrayal of any portion of the child’s body through electronic, video, digital, or any other means, or the engagement of the child in a sexual act.
- Lures a child to engage in pornography or provides reward for doing so
For the purposes of sexual harassment of a child, any question which arises as to the sexual intent of the person shall be considered as a question of fact. Whoever, commits sexual harassment upon a child shall be punished with imprisonment of either description for a term which may extend to three years and shall also be liable to fine.
- Child Pornography
According to Section 13 of the POCSO Act, anyone who represents a child’s sexual organs, uses a child in real or simulated sexual acts, or portrays a child indecently or obscenely in programmes or advertisements on television or the internet for pornographic purposes is guilty of the offence under this section and is subject to punishment under Sections 14 and 15 of the POCSO Act. Anyone who employs a child or children for pornographic purposes will be sentenced to at least five years in jail, as well as a fine, and upon a second or subsequent conviction, they will be sentenced to at least seven years in prison, as well as a fine. As per Section 14(2), if any person engages in such pornographic acts and thereby commits any offence under section 3 or 5 or 7 or 9, shall be punished for the said offences also in addition to the punishment for using the child for pornographic purposes under section 14.
In the case of Fatima A.S. v. State of Kerala (2020), Two young children painted on their mother’s naked body above the navel in a social media video. The mother claimed that it was with the intention of teaching them sex education. In this decision, the Supreme Court of India noted that “what the kid learns from their mother would always have a lasting imprint on their mind in the early years. The mother is typically quoted as being the child’s “window to the world.” Therefore, Section 13 applied to the situation.
Additionally POCSO Act also criminalises Abetment and Attempt to commit an offence against any child under section 16 and 18 respectively. POCSO Act aims to reduce the burden on the prosecution through Sections 29 and 30 of the POCSO Act. According to Section 29, the individual who is charged with committing a crime involving child sexual abuse is presumed to have either committed the crime, assisted in its commission, or tried to do so. Furthermore, Section 30 gives the accused the chance to demonstrate their innocence, making the presumption under Section 29 rebuttable. In S. Suresh v. State of Tamil Nadu (2017), the accused was found guilty in accordance with Section 6 of the POCSO Act and failed to rebut Section 29 assumptions. The Court concluded as a result that the rebuttable presumption also establishes the accuser’s guilt.
In State v. Hari Dev Acharya @ Pranavanand and Others (2021), the Delhi High Court stated that since 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.
The 2012 POCSO Act is comprehensive law that tries to address every facet of child sexual abuse. With the passage of the Protection of Children from Sexual Offenses (Amendment) Act of 2019, the Act was amended, toughening the penalties for offences.
Sensitizing the public to child sexual abuse is urgently needed so that there is no hesitation in reporting these crimes. In order to eliminate any possibility of carelessness on their side, the investigative authorities should be well-trained, and experts like medical practitioners engaged in the phases of investigation and trial should be effective. More so, offences under the act are provided in an extensive and clear manner, according to which the ambit of the Act and the offences are very broad in nature. This is beneficial as it helps in the penalisation of a lot of crimes which were left in dark prior to the POCSO Act. Easy and clear explanations will help in understanding of the public. If you are looking for best lawyers for dealing with POCSO Act Cases, contact Century Law Firm today.