DETAILED ANALYSIS OF DEFINITION CLAUSE OF POCSO ACT 2012 ALONG WITH CASES

ABSTRACT

The inadequacy of Indian Penal Code 1860 and absence of any stringent provisions for heinous crimes such as sexual exploitation and sexual abuse of children along with due compliance of Article 15 of the Indian Constitution that directs the states to protect the children of India. On the other hand the United Nations Conventions in 1992 on the Rights of the Child prescribes the set of standards to be followed by state in securing the best interest of the children gave birth to the commencement of POCSO Act, 2012 in India.

The Protection of Children from Sexual Offenses (POCSO) Act, 2012 was enacted by Indian Government to ensure safety of children from sexual offences. This Act clearly defines a child as any person below the age of 18 years. This act defines various forms of sexual abuse, including penetrative and non-penetrative assault, sexual harassment and pornography. This article is focused on the detail analysis of the definition clause which is given in section2 of this act along with the study of case analysis. The provisions for punishments are also given in this Act as per the gravity of offence.

KEYWORDS

Sexual offenses, child abuse, POCSO Act, United Nations Conventions on the Rights of the Child

INTRODUCTION

The Protection of Children from Sexual Offences Act, 2012 known as POCSO Act 2012 is an extensive law that provide protection to children against sexual assault, sexual harassment and pornography, It safeguard the interests of the child at every stage of the court process by incorporating child-friendly mechanisms for recording of evidences, investigation and reporting including speedy trial of offences through designated Special Courts. This act was enacted on 16 July 2012 and enforced on 14th November 2022, on the occasion of Children’s Day. It was enacted as a result of India’s ratification of the UN Convention on the Rights of the Child in the year 1992. The Act was amended in 2019 to introduce more rigorous punishment including the death penalty for Committing sexual crimes on children, to deter the offenders & to prevent such crimes against children. The Act also provides for the establishment of special courts for the trial of offenses ensuring speedy justice for victims.

OBJECTIVE

The research paper enumerates of definition clause of The POCSO Act 2012, where it talks about the various definitions of sexual offences that is committed against the child along. The objective of this research is to elaborate the meaning of terms given in sec2 under the definition heading. The research paper also includes the study of case laws related to the POSCO Act 2012.

THE POSCO ACT 2012, SEC 2. DEFINITIONS[1]:

(1) In this Act, unless the context otherwise requires, this phrase “unless the context otherwise requires” is commonly used to provide flexibility in interpreting specific terms or provisions of the statues or laws. It means that the interpretation of a distinctive term or provision should be adjusted or modified as necessary based on the surrounding context or circumstances described within the law. This phrase to be adapted to fit in the present situation ensuring that the law remains applicable and effective in different scenarios.

(a) aggravated penetrative sexual assault this refers to the same meaning which is given in sec5 of this act. As per the section5 of this Aggravated penetrative sexual assault is

(a) Any person being a police officer commits penetrative sexual assault on a child

(i) Within the limits of the police station or its premises at which that police officer is appointed; or (ii) in the other premises of any station house, though not situated in the police station, to which that person is appointed. Or (iii) during the course of his duties or otherwise; or (iv) where that person is known as, a police officer; or

(b) any person who is being a member of the armed forces or security forces commits penetrative sexual assault on a child. (i) within the limits of the area to which the person is deployed; or (ii) in any other areas that comes under the command of the forces or armed forces; or (iii) during the course of his duties or otherwise; or (iv) where the person is known as a member of the security or armed forces,

(d) person being on the management or staff of a jail, remand home, protection home, observation home, other place of custody or care and protection established by or under any law which is in force for the time being, commits penetrative sexual assault on a child, being inmate of such jail, remand home, protection home, observation home, or other place of custody or care and protection,

(e) any person being on the management or staff of a hospital, whether Government or private, commits penetrative sexual assault on a child in that hospital

(f) person on the management position or staff of an educational institution or religious institution commits penetrative sexual assault on a child in that institution.

(g) any person who commits gang penetrative sexual assault on a child.

Explanation.—When a child is subjected to sexual assault by one or more than one persons of a group in with their common intention, each of such persons shall be reckon to have committed gang penetrative sexual assault within the meaning of this clause and each of such person shall be liable for this assault in the same manner as if it were done by him alone; or

(h) any person commits penetrative sexual assault on a child using deadly weapons, fire, heated substance or corrosive substance;

(i) who commits penetrative sexual assault causing grievous hurt or causing bodily harm and injury or injury to the sexual organs of the child; or

(j) penetrative sexual assault on a child, which— (i) physically disable the child or causes the child to become mentally ill as defined under clause (b) of section 2 of the Mental Health Act, 1987 or causes any kind of impairment resulting which child unable to perform regular tasks, temporarily or permanently; or (ii) penetrative sexual assault on a female child, makes the that child pregnant as a result of sexual assault, (iii) act of penetrative sexual assault that make the child with Human Immunodeficiency Virus or any other life threatening disease, any kind of Infection which may either temporarily or permanently impair the child by rendering him physically incapacitated, or mentally ill to perform regular tasks.

(k) any person whoever, taking advantage of a child’s mental or physical disability and commits penetrative sexual assault on the child.

(l) person commits penetrative sexual assault on the child more than once or repeatedly,

(m) person commits penetrative sexual assault on a child below twelve years,

(n) person who is a relative of the child through blood or adoption or marriage or guardianship or in foster care or having a domestic relationship with a parent of the child or who is living in the same household or shared household with the child, commits penetrative sexual assault on such child,

(o) any person being, in the ownership, or management, or staff, of any institution providing services to the child, commits penetrative sexual assault on the child,

(p) person being in a position of trust or authority of a child commits penetrative sexual assault on the child in an institution or home of the child or anywhere else; or

(q) who commits penetrative sexual assault on a child knowing the child is pregnant,

(r) who commits penetrative sexual assault on a child and attempts to murder the child,

(s) who commits penetrative sexual assault on a child in the course of communal or sectarian Violence,

(t) any person commits penetrative sexual assault on a child and who has been previously convicted of having committed any offence under this POCSO Act or any sexual offence punishable under any other act or law for the time being in force,

(u) who commits penetrative sexual assault on a child and compell the child to strip or parade naked in public, is said to commit aggravated penetrative sexual assault.

(b) aggravated sexual assault meaning as given in section 9, according to which aggravated sexual assault is

(a) any person, being a police officer, who commits sexual assault on a child

(i) within the area of the police station or premises where that person is appointed; or

(ii) in the premises of any other station house though not situated in the police station to which he is appointed; or

(iii) during his duties or otherwise; or

(iv) where a person is known as a police officer; or

(b) who, being a member of the armed forces or security forces, commits sexual assault on a

child

(i) within that area to which the person is deployed; or

(ii) in any other areas under the command of the security or armed forces; or

(iii) during the course of his duties or otherwise; or

(iv) where that person is known as a member of the security or armed forces; or

(d) any person on the management or on the staff of a jail, or remand home or protection home or observation home, or any other place of custody and protection which is established by any law for the time being in force commits sexual assault on a child being inmate of such jail or remand home or protection home or observation home or other place used for custody or care and protection; or

(e) any person being on the management or staff of a hospital, whether Government or private, commits sexual assault on a child in that hospital; or

(f) any person who is on the management or staff of an educational institution or religious institution, commits sexual assault on a child in that institution; or

(g) any person commits gang sexual assault on a child.

Explanation.—when a sexual assault committed on a child by one or more persons of a group in

With common intention, then each of such persons shall be deemed to have committed gang sexual assault within the meaning of this clause and each of such person shall be liable for that act in the same way as if it were done by him alone; or

(h) any person commits sexual assault on a child using deadly weapons, fire, heated substance or

corrosive substance; or

(i) person commits sexual assault causing grievous hurt or causing bodily harm and injury or injury to the sexual organs of the child; or

(j) person commits sexual assault on a child, which

(i) make child physically incapacitate or causes the child to become mentally ill as defined under

section2(l) of the Mental Health Act, 1987 or causes impairment of any kind so as to make the child unable to perform regular tasks, temporarily or permanently; or

(ii) cause to the child with Human Immunodeficiency Virus or any other life-threatening disease or infection which may either temporarily or permanently impair the child by rendering him mentally ill, physically incapacitated, to perform regular tasks; or

(k) any person, commits sexual assault on the child by taking advantage of a child’s mental or physical disability, or

(l) whoever commits sexual assault on the child repeatedly; or

(m) any person who commits sexual assault on a child below twelve years; or

(n) any person who is a relative of the child through blood or adoption or marriage or guardianship or in foster care, or having domestic relationship with a parent of the child, or who is living in the same household or shared household with the child, commits sexual assault on such child; or

(o) whoever, is in the ownership or management or staff, of any institution providing services to the child, commits sexual assault on the child in such institution; or

(p) any person, who being in a position of trust or authority of a child, commits sexual assault on the child in an institution or home of the child or anywhere else; or

(q) any person who commits sexual assault on a child knowing the child is pregnant; or

(r) any person commits sexual assault on a child and attempts to murder the child; or

(s) whoever commits sexual assault on a child under the communal or sectarian violence; or

(t) any person who commits sexual assault on a child and has been previously convicted of having committed any offence under this POCSO Act which is punishable under any other law which for the time being in force; or

(u) any person commits sexual assault on a child that makes the child to strip or parade naked in public, is said to commit aggravated sexual assault.

(c) armed forces or security forces it means armed forces of the Union or security forces or police forces.

(d) child: a child means any person who is below the age of eighteen years.

(e) domestic relationship shall consist the same meaning as defined in section 2(f) of the Protection of Women from Domestic Violence Act, 2005, according which a “domestic relationship” describes relationship between two persons who live together or have, at any point of time, lived together in a shared household, when they are in blood relation, marriage, or through a relationship in the nature of marriage, adoption or are members of family living together as a joint family.

(f) “penetrative sexual assault” has the same meaning as assigned to it in section 3; A person is said to commit “penetrative sexual assault” when

(a) any person penetrates his penis, into the vagina, mouth, urethra or anus of a child to any extent, or inflicts the child to do so with him or any other person; or

(b) any person inserts, any object or a part of the body, not being the penis, to any extent, into the vagina, the urethra or anus of the child or inflicts the child to do so with him or any other person; or

(c) any person 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 compell the child to do so with him or any other person; or

(d) any person 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.

(g) prescribed means as stipulated or prescribed by rules made under this Act.

(h) religious institution: It has the same meaning as given sec2(f) of The Religious Institutions (Prevention of Misuse) Act, 1988, according to which religious institution is an institution for the promotion of any religion or persuasion, includes any place or premises used as a place of public religious worship, by whatever name or designation known.

(i) sexual assault has the same meaning as given in section7 which describes sexual assault as; Whoever, with sexual intent touches the body parts of a child like vagina, penis, breast, or anus of the child or compell the child touch the vagina, penis, breast, anus of such person or any other person, or does any other act with sexual intent which includes physical contact without penetration is said to commit sexual assault.

(j) sexual harassment meaning as given in sec11. As per sec11 Sexual harassment is said to commit upon a child by a person when that person with sexual intent

(i) speaks any word or produce any sound, or makes any gesture or show any object or part of

body with the intention that such word or sound shall be heard by the child, or such gesture or object or part of body shall be seen by the child; or

(ii) makes a child to show his body or any part of his body so as it is seen by such person or any

other person; or

(iii) shows any object to a child in any form or media; digital, film, electronic media for pornographic purposes; or

(iv) constantly follows or watches or contacts a child directly or through any other medium like

electronic, digital or any other means; or

(v) intimidate to use, in any form of media like fraudulent depiction through electronic, film, digital media or any other medium, of any part of the body of the child or the participation of the child in a that sexual act; or

(vi temp a child for pornographic purposes or for any enjoyment.

(k) shared household means a household or family where the person charged with the offence lives or has lived at any time in a domestic relationship with the child;

(l) Special Court: Special Court means the court for the purpose of ensuring speedy trial as per the Act, here special court means a court designated as such under section 28. These courts facilitates that evidence of the child shall be recorded within a period of thirty days of the Special Court taking cognizance of the offence and the court shall complete the trial, possibly within a period of one year from the date of taking cognizance of the offence.

(m) Special Public Prosecutor is the person who is appointed as a Public Prosecutor under section 32.

(2) The words and statements used herein and not defined but these words and expressions defined in the Indian Penal Code 1860, the Code of Criminal Procedure, 1973, the Information Technology Act, 2000, the Juvenile Justice (Care and Protection of Children) Act, 2000 shall constitute the meanings respectively assigned to them in the said Codes or the Acts.

LANDMARK CASES UNDER THE POCSO ACT2012:

Attorney General for India v. Satish and another (2021)[2]

The facts related to a man who had lured a minor girl aged 12 years into his house on the pretend of giving her guava and afterwards in groping her and pressing her body parts from over her clothes while afterwards attempting to remove her clothes. A single judge Nagpur bench of the Bombay High Court Very controversially interpreted the purport of Section 7 of the POCSO Act2012 and its usage of the words ‘touch’ and ‘physical contact’ make necessary ‘skin to skin’ contact in addition to the presence of ‘sexual intent’, in order to be punishable.

The Bombay High Court’s Nagpur Bench the court stated that only touching or pressing the clothed body of the girl was not sufficient to constitute ‘skin to skin’ contact. Even the accused was convicted of an offence under Sec354 of the Indian Penal Code 1860 (which deals with assaulting a woman to outrage her modesty) and handed a jail for term of 1 year. The judgment gave rise to a massive counteraction in the legal community and was sternly criticized for its regressive interpretation of Section 7 of the Protection of Children from Sexual Offences Act 2012.

On appeal, The Supreme Court overruled the judgment and held in clear terms that for an offence of ‘sexual assault’ as contemplated under Section7 of The Protection of Children from Sexual Offences Act 2012(POCSO Act2012), fact that is essential is the ‘sexual intent’ that accompanies the accused person’s impugned conduct, and for the purposes of this assessment, ‘skin to skin’ contact holds no relevance whatsoever. The supreme Court’s intervention was sought to, vide an appeal filed by KK Venugopal (Attorney General of India), wherein he accepted how the contentious judgment advanced a “very disturbing conclusion” and set a dangerous precedent.

Jarnail Singh v. State of Haryana (2013)[3]

Determination of the age of a victim or of an accused person is a very important issue, which determines the applicability of the POCSO Act 2012 and the Juvenile Justice Act 2015.The Supreme Court in Jarnail Singh vs State of Haryana (2013) held that the provisions of the Juvenile Justice Act 2015 and Rules 2007 would be followed in cases falling under POCSO Act, 2012 to determine the age for both a victim as well as an accused person. Particularly the Supreme Court relied on Rule 12 (3) of the Juvenile Justice (Care and Protection of Children) Rules, 2007. The documents listed in Rule 12 (3) therefore become critical to establish the age of the child, equally apply to determination of juvenility of a child “in conflict with law”.

In Jarnail Singh v. state of Haryana 2013, the appellant was accused of kidnapping and raping the daughter of one Savitri Devi, when her daughter was sleeping. The Supreme Court observed that Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007, which detailed the age determination process for children in conflict with the law should be applied to decide the age of a child victim. Applying the same, the Court convicted the appellant, Jarnail Singh.

Alakh Alok Srivastava v. Union of India and Others (2018)[4]

In the case of Alakh Alok Srivastava v. Union of India and Others (2018), the Supreme Court of India apprized some guidelines to be followed by Special Courts while trying a case under the POCSO Act, 2012 so that the trial is completed within a period of one year from the date of taking cognizance of the offence, as provided under Section 35 of the said Act.

CONCLUSION

Sexual offense slurs a child’s psyche, resulting in perceptional impairment, mental torment, and depression. Definitely, the POCSO Act 2012 includes the provisions for protecting children from sexual assault and child pornography. After the amendment in the POCSO Act 2012 in the year 2019, the punishment for sexual offenses against children has become more stringent. Still, India has a long way to go to repress sexual offenses against children.

REFERENCES

POCSO-ACT.pdf (bhubaneswarcuttackpolice.gov.in) visited on 08^th feb2024
POCSO-ACT.pdf (bhubaneswarcuttackpolice.gov.in) visited on 09^th feb2024
Special Courts Under POCSO Act (pib.gov.in) visited on 10^th feb2024
India Code: Protection of Children from Sexual Offences Act, 2012 visited on 10^th feb2024
protection_of_women_from_domestic_violence_act,_2005.pdf (indiacode.nic.in) visited on 10^th feb2024
POCSO Act: Landmark Cases and amendment (finology.in) visited on 11^th feb2024
Attorney General for India vs Satish & Another – Summary (oliveboard.in) visited on 11^th feb2024

[1] POCSO-ACT.pdf (bhubaneswarcuttackpolice.gov.in) visited on 08^th feb2024

[2] Attorney General for India vs Satish & Another – Summary (oliveboard.in) visited on 11^th feb2024

[3] POCSO Act: Landmark Cases and amendment (finology.in) visited on 11^th feb2024

[4] Alakh Alok Srivastava vs Union Of India on 1 May, 2018 (indiankanoon.org)

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