To protect and safeguard the children from the paedophiles and other
unscrupulous members of the society, the POCSO Act, 2012 was enacted with a
noble intention to contain the ever-increasing number of sexual offences against
the children both offline and online. The POCSO Rules, 2020 were made following
the amendments in the POCSO Act, 2012 and the punishment for the offender of
sexual offences against the children were made even harsher keeping the
provision of death sentence for the criminals engaged in certain cases.
when analyzed at the ground level, it was observed that there were many
loopholes and lacunae in the Act including the scope of its misuse by the
dishonest people and other stakeholders related to the implementation of the
Act. Without plugging the loopholes in the Act and without curbing its misuse,
the rights of the children can't be safeguarded properly and they can't be
safeguarded from the criminals bent on exploiting the children for their sexual
Though enacted on 16 July, 2012, the Protection of Children from Sexual Offences
Act, 2012 was enforced on the occasion of Children's Day on14 November, 2012.
India's ratification of the UN Convention on the Rights of Child in 1992
culminated in enactment of this Act. This Act is a robust legal framework to
protect children from sexual harassment, sexual assault and pornography and
provides for speedy and time bound trial and establishment of special courts,
while safeguarding the interests of children at every stage of the judicial
process. Any person below the age of 18 years comes under the purview of this
Act, as per section 2 (1) (d) of the Act.
The Protection of Children from Sexual Offences Rules, 2020 which was notified
by the Union Government came into effect on 9 March, 2020. These rules enabled
implementation of the amendments to the Protection of Children from Sexual
Offences Act, 2012 under which provisions of punishment for child abuse has been
made more stringent.
As per report of the National Crime Record Bureau, 2021, in 96% of the cases
filed under POCSO Act, 2012, the accused was known to the child victim and in
48.66% of the cases the accused was either a friend or a love partner.
In the UK, around 1 in 20 children has been sexually abused according to
research with 2,275 young people aged 11-17 about their experience of sexual
abuse. However, the exact number of children who have experienced sexual abuse
is not known.
Every second child in our country was sexually abused according to a study
conducted by the Government of India on 17, 220 children and adolescents to
ascertain the extent of sexual abuse; 52.94 of them were boys and 47.06% girls.
Assam (57.27%) reported the highest number of sexual abuses followed by Delhi
(41%), Andhra Pradesh (33.87%) and Bihar (33.27%).
According to POCSO Act, 2012, no hospital in India can refuse to admit the
victim of child sexual abuse for treatment and examination. Section 23 of the
Criminal Law Amendment Act has ensured this by inserting section 357C into the
Code of Criminal Procedure, 1973. According to this section, all hospitals are
bound to provide first aid or medical treatment to the victim of a sexual
offence free of cost. Section 166B of the Indian Penal Code specifies that any
public or private hospital can't deny treatment to a rape victim and will
provide treatment immediately to her free of cost. In these cases, the District
Legal Services Authority will arrange for payment of the cost of treatment on
the direction of the Special Court dealing with the case.
Under section 4 (13) of the POCSO Rules, 2020, it shall be the responsibility of
the local police or the Special Juvenile Police Unit (SJPU) to keep the child
and her family and the support person informed about the progress in the case
including the arrest of the accused and other court proceedings.
The investigating officers in this regard need regular and proper training to
help them investigate cases under POCSO Act properly. Due to lack of training
many cases are spoiled and many innocent persons have to suffer. Charge sheet is
submitted in most of the cases as the investigating officer gets overawed by the
stringent provision of the POCSO Act. As for example, the Bombay High Court at
Aurangabad in the case of Addl. Sessions Judge, Hoingoli and Ors. v. Bhawat and
Ors. (2017), acquitted the accused as the frock of the victim seized by police
was not sealed and therefore the semen stains on the frock could not be relied
upon for conviction.
In the case of Anjan Kumar Sarma v. State of Assam (2017)
, the Supreme
Court held that the last seen theory is a weak piece of evidence and cannot be
relied upon solely in the absence of other corroborative evidences, as the last
seen theory can lead to wrongful conviction.
In the case of Lillu @ Rajesh and another v. State of Haryana
, it was
observed by the Supreme Court that the administration of two-finger tests
breaches the right to privacy, dignity and mental integrity of a woman and hence
it is unconstitutional. This test is conducted on the minor girls against whom
any offence under the POCSO Act is committed. The test is still administered
though the government banned it in the year 2012.
Misuse of POCSO Act, 2012
In many instances it is seen that people are implicated in false cases under
POCSO Act due to land dispute, matrimonial dispute, personal vendetta, political
reasons or for personal gain for humiliating the accused persons by keeping them
in jail for a considerable period of time. A girl below the age of 18 years may
be influenced by her family to lodge a false complaint against a person with
whom her family has enmity in connection with a personal dispute.
The accused persons arrested under POCSO Act have to remain in jail for a long
period of time mostly till completion of trial of the case as courts sparingly
grant bail under the stringent provisions of the Act and if the case is false
the mental health and trauma of the accused persons deteriorate. By the time the
accused person gets bail or is acquitted, he has already suffered a lot.
There are hundreds of prisoners including some innocent persons arrested under
POCSO Act languishing in jails for month after month without the facility of
regular trial, parole or bail. The condition of such prisoners in jails is very
pathetic and they tend to resort to violence over various issues due to
frustration. Some of them have also developed mental ailment.
As per section 33 (8) of POCSO Act, 2012, the special court may, in addition to
the punishment, direct payment of compensation to the child for physical or
mental trauma caused to him or her and for rehabilitation of such child. Some
family members of the minor child under the greed of usurping the compensation
amount lodge false complaint against some rich and innocent persons.
In one case, one advocate reportedly in collusion with police and a girl below
18 years of age would implicate rich businessmen in POCSO cases allegedly for
extorting money. In many cases, police would allegedly send the victim girl
after tutoring her to speak what was told to her while giving statement under
section 164 CrPC before the judicial magistrate.
In many cases, police arrest the accused persons immediately and in other cases
don't arrest the accused persons long after registration of the case helping
them to get bail from the court. In a gang rape case, police allegedly excluded
the name of one accused person by preparing statement of some so-called
witnesses under section 161 CrPC in such a way that exonerated the accused
person from the case.
The use of statements under section 161 CrPC is frequently manipulated by the
police for implicating someone in the case or for excluding the name of an
accused person from the case. For this the statements of some persons who were
not at all witnesses to the case are recorded in such a way to either favour the
accused persons or implicate innocent persons by excluding their names from the
statement as accused or by including their name as accused.
There are also reports from some areas vis-a-vis the mother of the victim girl
allegedly scratching her child' supper thigh or causing injury to her genetalia
for getting incriminating medical report against the accused person in order to
implicate him in a false case under POCSO Act due to inimical relation of the
family of the victim girl either with the accused person or with his family.
Loopholes in POCSO Act, 2012
Though a robust Act, many loopholes have been noticed by the police officers and
other stakeholders connected with the implementation of the Act.
Some of the loopholes are noted below:
- The POCSO Act is silent on the way out if the victim child refuses to undergo medical examination but the investigating officer and family members are willing to let the child take medical examination.
- No solution is mentioned in the Act in case there is no lady doctor on duty present at the government or private hospital to examine the victim girl child, as under section 27 (2) of the POCSO Act, the medical examination of a female victim child should be done by a lady doctor.
- Section 3 of the POCSO Act doesn't apply to women since it makes only male person as accused in the case. If a woman commits a crime of sexual offence under section 3 of this Act, she cannot be charged for the same as per provisions of section 3 of the Act.
- The sexual contact between two adolescents or between an adolescent and an adult is considered illegal by the Act. The POCSO Act doesn't have any provision regarding the consent by persons under the age of 18 and is also silent on the likelihood of two minors engaging in any kind of sexual activity. Thus, it curtails the personal liberty of individuals below the age of 18 years by criminalizing the consensual sex between them and makes them a victim of societal harassment.
- In the case of XYZ v. State of Maharashtra &Anr, the Bombay High Court has observed that majority of countries have set their age of consent at 14-16 years. Children in the age group of 14 are considered as capable of giving consent to sex in countries like Germany, Italy, Portugal, Hungary etc. The age of consent is 16 in London and Wales. Japan has set the age of consent at 13. In Bangladesh, the age of consent is 16, whereas in Sri Lanka too it is 16.
Hence, the court held that the age of consent for sex under the Protection of Children from Sexual Offences Act (POCSO Act) and the Indian Penal Code (IPC) should be re-examined since a large number of cases coming to courts involve minor girls below 18 years who have had consensual sex in romantic relationships and the courts were getting overburdened because of such cases.
- Child marriage and consummation of marriage are considered illegal under this Act, but are legal under various personal laws of different communities of India. There is no clarification in this regard in the POCSO Act, 2012.
- The Act depends more on biological age than mental age. According to clinical psychologists, a young lady aged 22-23 years may have the mental capacity of a four years old child, but she would not get the remedy or justice from the POCSO Act if she is subjected to sexual offences defined under the Act.
- It is well known that most of the cases are not reported out of shame, embarrassment, anger, and frustration, but the family members will be punished if they don't report the case as mandated in section 21 (1) of the Act, which has made mandatory reporting of FIR in such cases by the family members or head of the office under whose jurisdiction the offence occurred. The family members of the victim normally don't
want to report the cases because of the fear of re-victimization during
medical examination, court appearance, reaction of poorly informed society.
- It is well known that most of the cases are not reported out of shame
embarrassment, anger and frustration, but the family members will be
punished if they don't report the case as mandated in section 21 (1) of the
Act, which has made mandatory reporting of FIR in such cases by the family
members or head of the office under whose jurisdiction the offence occurred.
The family members of the victim normally don't want to report the cases
because of the fear of re-victimization during medical examination, court
appearance, reaction of poorly informed society.
- The accused persons are considered as guilty under this Act until
they are proved innocent contrary to the general principle of 'innocent
until proved guilty'. Further, the burden to prove themselves as innocent
lies on the accused, making the Act very harsh. Here, the principles of
natural justice are violated.
- According to section 22 (2) of POCSO Act, 2012, no punishment shall
be imposed on children if false complaints are made or false information
provided by them. However, the same section under the POCSO Act provides for
punishment to the persons who file a false complaint in order to humiliate,
extort, threaten or defame another person. Since the child is exempted from any
such punishment, many people take advantage and file false complaint through the
minor child and misuse the provision of exemption.
- Since the POCSO Act is silent on the documents required for proving
the age of the victim or the accused, both the victim and the accused face many
issues. Courts normally take the help of Rule 12 of the Juvenile Justice (Care
and Protection of Children) Rules, 2007 in this regard. This rule accepts the
child's birth certificate, school certificate, or matriculation certificate as
proof of age.
In case of absence of these documents even passport which is a
legal document is not accepted and the child has to undergo ossification test to
prove age. This test provides a rough estimate of the child's age giving benefit
of doubt to the accused person. Regarding which documents should be considered
for proving the child's age and whether the benefit of doubt should be granted
or not there is no clear provision in the Act.
However, a division bench of the Supreme Court comprising of Justices S.
Ravindra Bhat and Aravind Kumar has observed that School Transfer Certificate
cannot be relied upon to determine the age of a victim under POCSO Act, 2012 and
that whenever the dispute with respect to the age of a person arises in the
context of her or him being a victim under the POCSO Act, the courts have to
follow the steps indicated in Section 94 of the Juvenile Justice Act (Care and
Protection of Children) ACt, 2015.
- The under-trial prisoners lodged in jails in POCSO Act cases have to
remain in jails for a long period of time due to non-grant of bail and regular
trial owing to stringent provisions of the Act leading to overcrowding in jails
and creating regular trouble for the jail authorities. Getting bail in such
cases even if implicated in false case is very difficult.
- There is a provision of providing 'support persons' to the victim
children, but support persons are seldom provided leading to acquittal of
accused persons in large number of cases. According to Rule 4 (8) of the POCSO
Rules, 2020, the Child Welfare Committee may provide a support person to render
assistance to the child through the process of investigation and in dealing with
the trauma of the case, but it is normally seen that support person is not
provided to the victim leading to acquittal of most of the cases registered
under this Act and psychological and mental pressure on the victim and her
family during the entire investigation and judicial process.
In only 4% of the case recorded under POCSO Act, 2012, 'support persons' were
provided to the victim, the Supreme Court of India has noted. The 'support
persons' should be provided to the victims to bring down the number of
acquittals under this Act, as they stand by the victims throughout the legal
- Section 33 (8) provides for compensation of the victim. The Act is
silent on the amount of compensation to be provided to the victim child and
who will receive the compensation on behalf of the child.
- The Act is biased in favour of the victim and violates the principles
of natural justice by failing to act in accordance with justice, equity and good
- Under POCSO Act bare touch is considered as sexual penetration. As
for example, if a father pats his child on the back or cheek or head for showing
affection or giving blessings, he may be put in prison.
- The intention of the legislature was to have a deterrent effect by
keeping the provisions of harsh punishments and penalties against the
accused persons, but in reality, most of the cases end in acquittal leading
to failure in providing remedy and justice to the victims.
- It is not mentioned in the Act if public servants or officers in
position of power commit any offence of aggravated assault against a child
victim under this Act, how will they be tried.
- It is not noted in the Act as to who is responsible for ensuring and
taking reports as to whether the investigation of the POCSO cases were conducted
strictly adhering to the provisions of the POCSO Act.
- It is questionable whether death penalty would have a deterrent effect
on the perpetrators of the crime or would encourage them to obliterate the
evidences and kill the victim to remove witnesses.
- According to section 29 of POCSO Act, 2012, the Special Court shall
presume that the accused persons have committed or attempted to commit the
offence unless the contrary is proved, in case they are prosecuted for
committing or abetting or attempting to commit the offence. While rich accused
persons can engage good advocates to defend themselves in the court, it will be
impossible for a poor man to wriggle out of the clutches of the provisions of
POCSO Act, if implicated, due to his inability to engage a good advocate.
- According to section 35 of the POCSO Act,2012, the evidence of the
victim child shall be recorded within a period of 30 days of the Special Court
taking cognizance of the offence and reasons for delay, if any, shall be
recorded by the Special Court and the Special Court shall complete the trial
within a period of one year from the date of taking cognizance of the offence,
but the number of pending cases under POCSO Act continue to accumulate despite
this provision, and the actual time to complete the trial is almost double the
time period prescribed by the Act.
- The Act has not commented on the compensation to be given to the accused
person if he is implicated in a false case.
The POCSO Act, 2012, was enacted with the noble intention of safeguarding the
most vulnerable group of the society i.e., children from sexual offences and
hence stricter provisions of punishment and fine for the offenders including
death sentence in some cases were included in this Act to deter the perpetrators
of such crime. However, various loopholes and discrepancies have been noticed in
the Act during its operation and implementation at the ground level, which need
to be plugged and rectified for more potent and fair use of the Act in dealing
with perpetrators of crime and simultaneously preventing its misuse by the
unscrupulous members of the society.References:
Written By: Md. Imran Wahab
- Neha Joshi, Bar and Bench, Published on: 14 Jul 2023, 12:14 pm,https://www.barandbench.com/news/litigation/pocso-act-bombay-high-court-says-criminalization-romantic-relations-burdened-courts
- POCSO Act: everything you need to know, Ritika Sharma, https://blog.ipleaders.in/pocso-act-everything-you-need-to-know/
- POCSO Act, Its Need and Relevance in India, By Saman,https://www.legalserviceindia.com/legal/article-7267-pocso-act-its-need-and-relevance-in-india.html
- POCSO Act: A Critical Analysis, https://juriscentre.com/2023/02/02/pocso-act-a-critical-analysis/
- What are the loopholes of POCSO Act? Law Notes, December 4, 2022,
- Loopholesin POCSO, s. aatif23,
- An Analysis of the P.O.C.S.O. Act, By Shashank Painuly, August 29, 2021,
- Decoding POCSO Act- Recent Controversial Rulings & its Pitfalls Mohit
Kumar Gupta| Corporate Law - Articles| Download PDF 26 Oct 2021, Read more
Copyright � Taxguru.in
- The Economic Times, Mar 13, 2020, 12, Centre notifies new POCSO rules
making law for sexual offences against children more stringent,https://economictimes.indiatimes.com/news/politics-and-nation/centre-notifies-new-pocso-rules-making-law-for-sexual-offences-against-children-more-stringent/articleshow/74608023.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst
- Child sexual abuse: Issues & concerns, Indian J Med Res, 2015 Jul,
SydneyMoirangthem, Naveen C. Kumar, and Suresh Bada Math, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4557243/
- NSPCC Learning, Child sexual abuse: statistics briefing, publication
date March 2021, https://learning.nspcc.org.uk/research-resources/statistics-briefings/child-sexual-abuse
- School Transfer Certificate Cannot Be Relied Upon To Determine POCSO Act
Victim: Supreme Court Acquits Accused, Ashok KM, 19 July, 2023, https://www.livelaw.in/supreme-court-pocso-school-transfer-certificate-p-yuvaprakash-vs-state-2023-livelaw-sc-538-233074?infinitescroll=1
, IPS, IGP, Provisioning, West Bengal
Email: [email protected]
, Ph no: 9836576565