The Protection of Children from Sexual Offences Act is a comprehensive act that came into force in November 2012. The Ministry of Women and Child Development introduced the act. Commonly known as POCSO Act, the act deals with offences related to children. This act addresses heinous crimes and protects a child from sexual assault, sexual harassment and pornography.
The enactment of this act increased the scope of reporting sexual crimes against children. The POCSO Act, 2012 lays down the punishment for exposing children to any kind of sexual offence. The POCSO Act punishment is more stringent and covers all types of sexual abuse.
Why was the POCSO Act enacted?
The POCSO Act, 2012 was enacted to safeguard the children’s interests. The POCSO Act, 2012 tend to protect the child from sexual offences. The act is gender-neutral and recognizes both girls and a boy as a victim of sexual violence.
Further, the act was required as the Indian Penal Code was inadequate to address Sexual Assault, Sexual Harassment, Pornography and Sexual Violence against boys and a child. IPC does not explicitly recognise these crimes. The POCSO was also required as the procedure for the crime reported under IPC is more rigid. Such a procedure is not child friendly. Even an adult is scared to visit a court when summoned to appear in the court; such a situation would have been more difficult for a child.
Also, India is a signatory of the United Nations Convention on Rights of Children (UNCRC). The POCSO Act, 2012 was enacted to ensure child-friendly procedure from the filing of the report and fulfils the requirement of Article 15(3) of the Constitution of India.
Features of the POCSO Act
- The Act defines the various types of offences, touch-based, non-touch, penetrative, pornographic crimes etc., in detail and doesn’t leave any kind of offence.
- The act also defines the person under the age of 14 as a child.
- The act also has a feature to give compensation to the victim.
- Only the POCSO Court has the jurisdiction to deal with the matter related to the act.
- The INNOCENT TILL PROVEN GUILTY principle does not apply in the matter related to the POCSO Act, 2012. Once a complaint gets filed in this case, it gets presumed that he had the intention to commit a sexual act.
- There is a child-friendly procedure.
- If a child goes through abuse at home, he will get relocated by the Child Welfare Commission for care and protection.
The severity of the problem of child sexual abuse in India
The problem of child sexual abuse is more severe than any other crime. There is no such day when a single case of child sexual abuse does not get reported in India. There was a report in 2007, which was a study done by women and child development. In this report, 53.2% of the children have faced more than one form of sexual abuse. Out of this, 53.2% of the children, 52.94% were boys.
The abusers generally are the people who knew the child personally and are in a position of trust and responsibility. In such a situation, the cases are generally not reported, or even the child’s parents don’t know about the condition.
Further, the National Crime Reports Bureau released a report in 2018. The report stated that the number of reported rape cases was 21 605, and the number of cases is quite huge.
The worst part is that the number of reported cases is less than the number of offences every day. And the situation becomes severe as the person committing the crime is trustworthy and close to the child’s family.
Offences and POCSO Act Punishment
The POCSO Act Punishment is more stringent, and after the amendment act of 2019, the punishment is even more severe. The POCSO Act punishment is maximum with rigorous life term imprisonment, with a fine.
Section 3 of the POCSO ACT: Penetrative Sexual Assault
Section 3 of the POCSO Act 2012 includes penetration of any object or body part into any private part or mouth of the child. It also includes manipulating any body part of the child or making the child penetrate anyone else’s body or even the body of the offender.
Section 4 of the POCSO Act 2012 provides punishment for Penetrative Sexual Assault. In the case of penetrative sexual assault, an offender gets punished with imprisonment of a term not less than ten years, and that may extend to life imprisonment. Such minimum punishment may extend to 20 years, extending to life imprisonment when the child is below the age of 16 years.
Section 5 of the POCSO Act: Penetrative Assault becomes Aggravated Penetrative Sexual Assault.
As per Section 5 of the POCSO Act 2012, a penetrative Sexual Assault become an Aggravated Sexual Assault in the following situation:
- When the offender or the abuser is any person who is in the authority or position of trust of the victim
- There is a blood relation between the offender and the victim.
- The victim becomes pregnant.
- The child suffers injury.
POCSO ACT Punishment provides under this section a minimum punishment of 10 years that may extend to life imprisonment with a fine.
Section 7 of the POCSO Act: Offence of Sexual Assault
As per Section 7 of the POCSO Act 2012, when an abuser fondles the child’s private part or vice versa, he is said to have committed sexual assault. The sexual offence is touch-based and also include the sexual intent of the offender.
POCSO Act Punishment for an offence under section 7, provided under section 8, is minimum imprisonment of 3 years that may extend to 5 years with a fine.
Section 9 of the POCSO Act: Sexual Offence become Aggravated.
According to Section 9 of the POCSO Act 2012, an act becomes aggravated or not depending upon the relationship between victim and offender. It also relies on the nature of the assault and the impact of the assault.
Section 10 incorporates POCSO Act punishment for an offence committed under section 9 of the act. According to this section, an offence under section 9 is punishable with an imprisonment of any description for a term that is not less than five years and may extend to 7 years with a fine.
Section 11 of the POCSO ACT: Sexual Harassment
According to Section 11 of the POCSO Act, when an offender shows or shares any sort of sexual content to the victim through a message or any other form of communication, he is said to have committed an offence of sexual harassment. It also includes vulgar or abusive gestures. The offence of sexual harassment is not touch-based and sexual intent is required for such offence.
POCSO Act punishment for an offence under section 11 of the act gets provided under section 12. According to section 12 of the act, the punishment includes imprisonment for a maximum of three years with a fine.
Section 13 of the POCSO ACT: Using child for pornographic purpose
Section 13 of the POCSO Act states the child’s activities for pornographic activities. If a child gets used to any form of media for sexual gratification, then the person using the child is considered an offender for this section. Sexual gratification means and includes:
- Representation of sexual organ of a child
- Using a child for actual or simulated sexual that could be with or without penetration.
- Representation of a child indecently or obscenely.
POCSO Act punishment for such actions is provided under Section 14. Section 14 of the Act provides the punishment given to an offender in different situations for using a child for pornographic purposes. The punishment is as follows:
- POCSO Act Punishment for an act committed under section 13: the punishment provided under section 14(1) is imprisonment of either description for a term which may extend to five years with a fine. If a person is a repeated offender, such imprisonment may extend to seven years with a fine.
- POCSO Act Punishment for the child used for pornographic activity and commits an offence under section 3 of the POCSO Act. In such a situation, the punishment provided by the act is minimum imprisonment of two years that may extend to life imprisonment with a fine.
- POCSO Act Punishment for the child used for pornographic purposes. An offence gets committed under section 5; then, the accused is punishable with rigorous imprisonment for life and a fine.
- POCSO Act Punishment for the child used for pornographic purposes and committed under section 7. The accused is punishable with any form of imprisonment for a minimum of six years, which might extend to eight years and a fine.
- POCSO Act Punishment for the child used for pornographic purposes and committed under section 9. The accused is punishable with any form of imprisonment for a minimum of eight years, which may extend to ten years and a fine.
Also, storing any pornographic material that involves a child is a punishable offence under POCSO ACT, 2012. POCSO ACT Punishment for such offence can be imprisonment of any description for a term that may extend to three years with a fine or with both.
Section 16 of the POCSO ACT: Abetment to commit an offence
As per section 16 of the POCSO Act 2012, a person is said to be committed an abetment in the following cases:
- If the offender instigates any person to do any offence.
- If the offender is involved with any other person or persons in a conspiracy of doing an offence,
- If the offender intentionally aids any act or illegal omission.
For all such acts of abetment and attempt to commit an offence, punishment is provided under section 17 and section 18 of the POCSO Act.
The POCSO ACT under section 17 provides punishment for the offence of abetment and attempt to commit a crime under section 18.
Abetment gets punished with the same punishment as the offender.
In case of an attempt to commit an offence, the person gets punished with half of the punishment given to the offender.
Punishment for false reporting of cases
POCSO Act Punishment is provided for reporting a false case related to child sexual abuse.
Section 22 of the POCSO Act 2012 provides for such punishment.
According to section 22 of the POCSO Act 2012, if any person makes a false complaint or provides information that is not true related to any offence mentioned under sections 3, 5, 7 or 9with an intention to defame, threaten, or humiliate such person, then he has committed a crime under section 22. Such a person is liable for imprisonment, which may extend to six months with a fine or with both.
However, if a person provides false information about a crime against a child and knows that the information is incorrect but victimise the child by providing such information, in this case, the POCSO Act Punishment is a maximum of one year with a fine or with both.
Under this section, if a child makes false information, there is no punishment under POCSO Act Punishments.
Offenders under POCSO Act
The POCSO ACT Punishment is provided for both males and females as the act is gender-neutral. Accordingly, both males and females can commit an offence under the POCSO Act.
The following can be an offender for an offence under POCSO Act:
- Relative of a child
- A public servant
- A policeman, member or armed or security forces
- Management or staff of jail or custodial institution
- Management or staff member of the hospital, educational institute or religious institute
- Owner or management or staff of the institution that provides services to children.
- Any person who is in the position of trust or authority (for example- neighbour, maid, servent)
- A juvenile
Libnus vs State Of Maharastra
In this case, a fifty-year-old man was holding the hand of a five-year-old girl. While the man was holding the girl’s hand, he had his zip off the pants open. The survivor informed her mother that he had his penis and requested the girl to sleep with him.
The man was held guilty and aggravated sexual assault under sections 10 and12 of the POCSO ACT, 2012 and under sections 354A and 448 of the Indian Penal Code. The court stated that the crime was done in aggravated circumstances, and the victim was of tender age. Also, the relationship between the abuser and the victim is of trust; it attracts Section 7 of the POCSO Act. Thus, he got punished under sections 10 and 12.
But the Bombay High Court overturned this decision and found him guilty under section 354A of the Indian Penal Code. No minimum punishment gets prescribed in this section, but the maximum punishment is three years. Keeping in mind that the accused has already spent five months in jail, which was adequate punishment for the said offence.
Thus, the Bombay High Court released the accused.
POCSO ACT, 2012 or Protection of Child from Sexual Offences Act, 2012, is an act that protects a child from being exploited sexually. It covers major sexual offences related to the child. The POCSO Act Punishments are more stringent, and the law is more severe than any other legislation. However, this act also set aside the principle of Innocent till proven guilty, as, under this act, a person is seen as a culprit and not as normal. As this act is related to the child and protects the child from being sexually exploited, the act has recognised all the major acts as offences. The POCSO act Punishment can be up to life imprisonment for the offender according to the severity of the offence.
Who is a child as per POCSO Act 2012?
According to Section 2(d) of the POCSO Act, a child is below the age of eighteen years.
What is the maximum punishment provided under the POCSO Act?
Under POCSO Act, 2012, maximum punishment of rigorous imprisonment for life can be given to an offender.
What are the offences covered under POCSO Act?
POCSO ACT covers offences that exploit a child sexually. The following crimes get covered under POCSO Act:
- Sexual Assault
- Sexual Harassment
- Penetrative sexual assault
- Use of child for pornographic purpose
Is offence under POCSO Act Bailable or not?
An offence under POCSO Act is a non-bailable offence.