POSCO ACT 2012 AND IT’s RELEVANCE IN INDIA

POSCO ACT 2012 AND IT’s RELEVANCE IN INDIA

Author:- Divyansh Singh, a Student of University of Lucknow 

The Protection of Children from Sexual Offences Act 2012 was made to protect children from offences  of sexual assault, sexual harassment and pornography and provide form establishment of Special Courts for trial of such offences and for matters connected therewith or incidental thereto.

SHORT TITLE, EXTENT AND COMMENCEMENT-

1. It extends to the whole of India Section 28 

2. It shall come into force on such date as Central Government may, by notifications in the Official Gazette .

HISTORY OF UPCOMING ACT- 

The  Mediation Act, 2023 was officially notified by the Ministry of Law and Justice on September 15th, 2023. Mediation has a long history in India, particularly through the use of Panchayats for resolving community conflicts. POSCO is legislation which aims at protecting children from  all types of sexual abuse. 

POCSO Act 2012, is divided into 46 sections. It was published in the official gazette on 20th June 2012 but came into force on 14 November 2012 

  NEED OF POSCO ACT,2012?

Before The Introduction of the POSCO ACT,  2012, the sole legislation in India that Aimed at protecting the rights of a child was the Goa’s Children’s Act, 2003 and rules 2004. Under the Indian Penal Code,1860 child sexual abuse accounted for an offence under Section 375,354 and 377. These provisions neither protect male children from sexual abuse nor protect male children from sexual abuse nor protect their modesty. 

 LIMIT FOR DISPOSAL OF CASES (Section-35)

-> For recording the evidence of the child :   30 days from the date of taking  cognizance of  offences .

-> For completing the trial:  1 year from the date of taking cognizance of  offence.

MEDICAL  EVIDENCE OF VICTIM:

Child sexual abuse is rarely diagnosed merely on the basis of physical examination. In many instances, the scars or bruises on the body of the victim are not found either because the cases are not immediately reported or the sexual abuse does not result in such injuries. In  Pintu v. State of U.P. (2020), the conviction of the accused under Section 377 of the Indian Penal Code, 1860 and Section 6 of the POCSO Act were set aside and one of the reasons was that there was no mark of external injury around the anus of the victim  that caused everything.  

Duty of a medical examiner :

It is essential that the medical examination of a child is conducted with utmost care and precaution. Rule 5(3) of the POCSO Rules, 2012 makes the provision that no medical facility or practitioner who renders emergency medical care to a child should ask for any kind of legal or other documentation before providing such care. 

PUNISHMENT OF OFFENCES COVERED IN THE POCSO ACT,2012 –

NAME OF THE OFFENCE	RELEVANT PROVISION OF THE POCSO ACT	PUNISHMENT
Penetrative  sexual assault on a child of 16 to 18 years of age	Section-4	Minimum imprisonment of 10 years which may extend to imprisonment for life
Penetrative sexual  assault on a child Name of the offence below 16 years of age	Section-4	Minimum imprisonment of 20 years , may extend to imprisonment for the  life .
Sexual harassment	Section- 12	Imprisonment which can extend upto 3 years plus a fine.

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION:

                                                     Criminal Appeal No. 1633 of 2023

                                   State of U.P                                      ……… Appellant 

                                                                   Versus 

                                 Sonu Kushwaha                                ..…..Respondent

  The Question here in the case was whether the respondent is guilty of an offence of aggravated penetrative sexual assault punishable under Section 6 of the Act.  The case was earlier put up in 2018 before the High Court of Judicature at Allahabad. An impugned judgement, the High Court held that the respondent was guilty and was convicted under POCSO ACT Section 6 for all three offences committed by him and hence was pronounced a rigorous imprisonment for 10 years for the offences punishable along with a fine  of  Rs.5000/- . The respondent was sentenced to undergo rigorous imprisonment for seven years for the offence punishable under Section 377 of IPC. 

The POCSO Act was enacted to provide more stringent punishments for the offences of child abuse of various kinds and that is why minimum punishments have been prescribed in sections 4,6,8 and 10 of  the POCSO Act for various categories of sexual assaults on children .         

                                                                                                                                NEW DELHI,  

                                                                                                                                 July 5 ,2023                                                                                                                                 

PROCEDURE FOR REPORTING OF CASES:

As per section-19  reporting of offences as per Code of Criminal Procedure,1973(2 of 1974), any person(including the child) , who has apprehension that an offence under this Act shall provide information to –

1. The Special Juvenile Police unit; or 

2. The local police 

Every report given under Sub Section-(1) shall be

1. Be read over to the informant;

2. Shall be entered in a book to be kept by Police Unit.  

What were Shortcomings of the POCSO Act, 2012

Problem with the application of the last seen theory: The last seen theory can lead to wrongful conviction in several cases and therefore, it cannot be applied without circumstantial evidence. It was held by the Supreme Court in the case of Anjan Kumar Sarma v. State of Assam (2017), that the last seen theory is a weak piece of evidence and cannot be relied upon single-handedly. 

References:

Law House Bare act on POCSO ACT 2012 with 2019 Amendment.

Supreme Court Cases 2023(Vol 3)  .  

 Website:  https:\\blog.ipleaders.in

Author – Divyansh Singh , a student of University Of Lucknow.