Authored By – KIRUBHA RT, GOVERNMENT LAW COLLEGE – DHARMAPURI

INTRODUCTION

In India, many children and women face severe instances of sexual abuse. Approximately, 1 in 10 children or women face sexual abuse daily. Children suffer more as they are innocent and often coerced or threatened into such activities. For instance, in schools, a child—whether a boy or a girl—may be subjected to sexual abuse by a teacher or any other individual. The rising crime rate against children is alarming, reaching millions worldwide.

Many children hide their abuse from their parents, and sometimes parents, fearing societal repercussions, also choose to remain silent, allowing the perpetrator to roam freely in society. Awareness programs are crucial in schools, colleges, villages, and across all communities to curb such crimes. Victims suffer immense physical and mental trauma, which has long-lasting consequences. Hereinafter, the term “victim” refers to children affected by sexual offences.

To address this grave issue, the Indian government enacted the Protection of Children from Sexual Offences (POCSO) Act, 2012. The primary objectives of this Act are to:

• Protect children from sexual offences
• Punish perpetrators of such crimes
• Establish child-friendly legal procedures for victims

Keywords:

• Children

• Sexual Offences

• Awareness

• Physical and Mental Trauma

• POCSO

• Friendly Procedures

MEANING, DEFINITION AND EXPLANATION

• Child: As per the POCSO Act, a “child” refers to any individual below the age of 18, who lacks mental maturity and depends on their parents for a living.

• Trial: A legal procedure conducted by the court to ensure a fair judgment for the victim. The judge considers arguments, evidence, and witness testimonies before delivering the verdict.

• Sexual Harassment: Any act involving inappropriate touching, gestures, symbols, or sounds made with a sexual intent, as defined under the POCSO Act.

• Medical Examination: A physical examination conducted by a registered medical practitioner in the presence of the victim’s parent or guardian.

• Special Courts: Courts established by the State Government in every district, as notified in the Official Gazette, to handle POCSO cases.

• Public Prosecutor: A legal representative appointed by the State Government to advocate for the government in criminal cases.

• Special Public Prosecutor: A government-appointed legal counsel for handling POCSO cases specifically.

• Media: A public platform, including social media (Instagram, WhatsApp, Facebook) and news channels, that disseminates information rapidly within society.

• Sexually Obscene Material: Any prohibited content (articles, videos, publications) containing sexual elements under the POCSO Act.

• Testify: The oral examination of a child, including examination-in-chief, cross-examination, and re-examination.

• Dignity: A person’s reputation in society and the perception of others toward them.

• Victim: A person affected by an intentional offence committed by the accused, which may result in physical or mental harm.

• In-Camera Proceeding: A private trial process where only the victim and concerned individuals are allowed inside the courtroom to safeguard the victim’s identity.

• Culpable Mental Intention: The guilty intent of the accused to commit an offence.

• Recording of Statements: Statements given by a child are documented in writing and may sometimes be recorded via audio or video.

• Friendly Atmosphere: A comfortable environment for the child, ensuring they feel safe in the presence of their parents or guardian.

• Speedy Trial: Expedited justice delivered to the victim as soon as possible by the court.

• Character Assassination: Spreading false information to damage an individual’s reputation, causing mental distress.

• Juvenile: Under the Juvenile Justice (Care and Protection of Children) Act, a child under 18 who requires care and protection provided by the government.

• Evidence: As per the Indian Evidence Act, evidence determines the facts of a case and the accused’s guilt based on presented material.

VICTIM-FRIENDLY TRIALS UNDER POCSO

Under the POCSO Act, victims are typically children, distinguishing these trials from regular cases involving adult victims. In most cases, trials occur in open courts; however, for child victims, in-camera proceedings are conducted to protect their identity and future. The courts recognize the extreme trauma faced by victims, ensuring a child-friendly environment during trial proceedings.

To facilitate truthful testimony, courts allow the victim’s parents, guardians, or a trusted individual to be present for support. Courts also avoid unnecessary questioning that may trigger further distress.

ROLE OF MEDIA UNDER POCSO

The media is strictly prohibited from publishing any information, reports, or photographs revealing the identity of a child victim. As per Section 23 of the POCSO Act, any act or omission by a media employee makes the publisher or owner liable.

In exceptional cases, a Special Court may permit publication, but only with the consent of the child or their parents/guardian. Generally, reports must not include details such as:

• Victim’s name
• Address
• School name
• Neighborhood or other identifiable details

Punishment for Violation

Violating Section 23 results in imprisonment of not less than six months, extendable up to one year, or a fine, or both.

RECORDING OF STATEMENTS

Recording by Police Officer

As per Section 24 of the POCSO Act, statements from child victims must be recorded by a female police officer of at least the rank of a sub-inspector.

• The statement must be recorded at the child’s residence or a location of their choice.
• The officer should not wear a uniform and must maintain a friendly approach.
• The child must not come into contact with the accused during this process.
• The recorded statements must be kept confidential, and media leaks are prohibited unless directed otherwise by a Special Court.
• If the child does not understand the language, a translator may be arranged.

Recording by Magistrate

According to Section 207 of CrPC, certain documents, along with the final report submitted under Section 173 of CrPC, must be provided to the victim or their guardian.

• The accused’s lawyer is not allowed during the statement recording.
• If the victim has a physical or mental disability, an expert may be appointed to assist.
• Statements may be recorded electronically (audio/video) where possible, but it is not mandatory.

Case Law: Navin Dhaniram Baraiye v. State of Maharashtra

The Bombay High Court ruled that the term “wherever possible” in Section 26(4) indicates that audio-video recording is not mandatory but optional.

MEDICAL EXAMINATION OF A CHILD

If the victim is a girl, the medical examination must be conducted by a female doctor in the presence of:

• A parent
• A guardian
• Any trusted individual chosen by the child

If none of the above are present, a woman appointed by the medical institution’s head must oversee the procedure. No FIR is required for medical examinations under Section 164A of CrPC.

Case Law: O.M. Baby (Dead) by LRs v. State of Kerala

The Supreme Court ruled that the request for a second medical examination by the victim’s mother was valid. Since the first and second medical reports were contradictory, the Supreme Court dismissed the appeal.

Designation of Special Courts

The State Government, in consultation with the Chief Justice of the High Court, establishes Special Courts. After this consultation, the notification is published in the official gazette. The Court of Session functions as a Special Court in each district. As these Special Courts are established under the Protection of Children from Sexual Offences Act, 2012 (POCSO Act), they also have jurisdiction to try cases under Section 67B of the Information Technology Act, 2000, which deals with the prohibition of publishing sexual content through electronic means.

In the case of Murugasamy vs. State, the High Court addressed Section 28 of the POCSO Act, which empowers the designation of Special Courts.

Presumption of Certain Offences

Any person who commits or attempts to commit an offence under Sections 3, 5, 7, and 9 of the POCSO Act will be presumed guilty by the Special Court unless proven otherwise. This means that the burden of proof shifts to the accused. The court prioritizes the victim’s account unless contrary evidence is presented.

In the case of Dashwanth vs. State, the High Court ruled that when a person commits or attempts an offence under Sections 3, 5, 7, and 9, the onus shifts to the accused to prove that they have not committed the offence. The court also upheld the death penalty for the accused in such cases.

Application of CrPC

The Special Court follows the procedures prescribed under the Code of Criminal Procedure (CrPC), 1973, for conducting trials. The prosecutor representing the case is deemed a Public Prosecutor, and the Special Court is deemed a Court of Session.

Appointment of Special Public Prosecutor

Under Section 32 of the POCSO Act, the State Government has the authority to appoint a Special Public Prosecutor for each Special Court by notifying it in the official gazette. The eligibility criteria for appointment require the prosecutor to have at least seven years of practice in the legal profession. As per CrPC provisions, the Special Public Prosecutor is deemed equivalent to a Public Prosecutor.

Powers and Procedures of Special Courts

1. Cognizance of Offences

   • Upon receiving a complaint from the victim or a report from the police, the Special Court has the authority to take cognizance of the offence, even if the accused has not directly committed it.

2. Questioning the Child Victim

   • The Special Public Prosecutor or the accused’s counsel must submit their questions for chief examination, cross-examination, or re-examination to the Special Court.
   • The Court will review these questions and permit only those deemed necessary.
   • The Court also ensures frequent breaks for the child during the trial to create a stress-free environment.

3. Child-Friendly Atmosphere

   • The Special Court ensures a child-friendly environment during the trial.
   • The child may be accompanied by a parent, guardian, or any trusted person to provide comfort.
   • The child should not be frequently called to testify.

4. Maintaining Dignity and Confidentiality

   • The Court must protect the identity of the child unless its disclosure is permitted with the child’s or guardian’s consent.
   • No aggressive or character-assassinating questions are allowed.

5. Compensation for the Victim

   • In certain cases, the Special Court directs compensation to be paid along with the punishment to help rehabilitate the child from the physical and mental trauma caused by the offence.

6. Powers of a Sessions Court

   • The Special Court exercises all powers available to a Court of Session as per the CrPC.

Case Law:

In Bijoy alias Guddu Das vs. State of West Bengal, the Calcutta High Court held that under Section 33(8) of the POCSO Act, compensation for the victim must be provided from the Victim Compensation Fund or any other special scheme established by the Government, as the State failed to ensure the victim’s safety and security.

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When the Offence is Committed by a Child

If a child commits an offence, the case is handled under the procedures of the Juvenile Justice (Care and Protection of Children) Act, 2015. If there is any dispute regarding the child’s age, the Special Court determines the age and records its reasoning in writing. Even if the determined age is incorrect, the order will still be considered valid.

Recording of Evidence by Special Courts

The Special Court must complete the trial as soon as possible, ideally within a year from taking cognizance of the offence.

• The child’s evidence must be recorded within thirty days from taking cognizance.
• If there is any delay, it must be reasonable, and the reason should be recorded in writing.

Process of Testifying the Child

• The accused must not appear before the child in any manner.
• However, the accused may listen to the child’s testimony and communicate with their advocate.
• The child’s statements can be video recorded using a single-side mirror or a camera.
• The trial should be conducted in-camera, in the presence of the child’s parents, guardian, or a trusted person.
• If necessary, the Court may direct that the child’s examination be conducted outside the Special Court by a commission.

Conclusion & Comments

The POCSO Act aims to provide a speedy and victim-friendly trial process, considering the trauma faced by child victims of sexual offences. It ensures:

• Confidentiality of the child’s identity.
• In-camera proceedings to maintain privacy.
• Avoidance of aggressive questioning that may further distress the child.
• Medical examinations and assistance in a child-friendly atmosphere.
• Compensation for victims where necessary.
• Establishment of Special Courts to ensure swift justice.

By reducing procedural hardships and maintaining a safe and secure environment, the judicial system prioritizes the well-being of the child victim while delivering justice.

References

1. Books / Commentaries / Journals Referred:

a. Protection of Children from Sexual Offences Act, 2012 (Bare Act)
b. Code of Criminal Procedure, 1973 (Bare Act)

2. Online Articles / Sources Referred:

a. Indian Kanoon
b. CaseMine
c. Live Law

3. Cases Referred:

a. Navin Dhaniram Baraiye vs. State of Maharashtra, 2018 Cri LJ 3393 (Bombay)
b. O.M. Baby (Dead) by LRs vs. State of Kerala, 2012 Cri LJ 3794
c. Murugasamy vs. State, 2017 Cri LJ 5011 (Madras)
d. Dashwanth vs. State, 2018 Cri LJ 4226 (Madras)
e. Bijoy alias Guddu Das vs. State of West Bengal, 2017 Cri LJ 3893 (Calcutta)

4. Statutes Referred:

a. Protection of Children from Sexual Offences Act, 2012
b. Code of Criminal Procedure, 1973
c. Information Technology Act, 2000