Child sexual abuse laws have been enacted in India as part of the country’s child protection programs. On May 22, 2012, the Indian Parliament enacted the POCSO bill, 2011, into law. The government’s rules, which were formulated in compliance with the law, were also notified in November 2012, and the law was declared ready for execution. Many people have called for stricter rules. India has one of the world’s greatest populations of children, with a population of 472 million children according to 2011 census figures. Article 21 of the Indian constitution guarantees Indian citizens that the state would protect their children.
MERITS OF POCSO ACT
- Particular care and protection are given to child victims, which aids in treating the matter more empathetically and carefully # special courts and prosecutors in order to offer fast justice
- Efforts to make police more sensitive in their treatment of cases, such as recording solely female officers’ statements in cases of girl child abuse.
- The burden of proof is on the accused, therefore there is legal safety for the victim.
DEMERITS OF POCSO ACT
The statute considers everyone under the age of 18 to be a kid, only their biological age is taken into account, not their mental age. This provides a technological stumbling block for those with mental disabilities seeking justice. It’s also been abused in cases of love elopement, even when the girl and boy are only a few years apart in age (17.5, 18 years).
Lower awareness of the act, fear of social shame, and a lack of training for police officers, lawyers, and judges all contribute to the legislation’s ineffective execution. Through different ways, the government has conducted an awareness program concerning child abuse and the law, including an e-box initiative for filing online accusations of child sexual abuse. However, in exceptional circumstances, the Act should be reviewed with regard to a child’s age.
Section 9 of the POCSO Act
Section 9 of the POCSO Act, 2012 talks about aggravated sexual assault on a child below 12 years.
Section 10 of the POCSO Act
Section 10 of the POCSO Act states whoever commissions an aggravated sexual assault shall be punished with imprisonment of either description for a term which shall not be less than 5 years but which may extend to 7 years, and shall also be liable to fine.
The state of Kerala and Another v. Hafsal Rahman NK and Others
In The State of Kerala vs. Hafsal Rahman N.K. & Ors., the accused, who was 36 years old and a resident of Kerala’s Malappuram district, was charged with violating Sections 9(f) and 10 of the POCSO Act. Section 9(f) deals with the penalty of those who are members of the management or staff of a religious or educational organization. Aggravated sexual assault is punishable under Section 10 by a minimum of five years in jail, with the possibility of a seven-year sentence and a fine.
The Kerala High Court observes in its order, issued by Justice Alexander Thomas, that the whole argument between the petitioner and the respondents had been settled “amicably” with the minor girl’s mother submitting an affidavit stating that she had no objection to the quashing of the pending criminal proceedings against the accused. The prosecution argued that the settlement reached between the accused and the complainant looked to be genuine before the Kerala High Court, based on the investigation performed by the investigating officer.
The accused, who was the victim’s instructor, allegedly summoned the student to his room, where he kissed her on the forehead and touched her cheeks. The High Court reasoned that the Supreme Court has held that, in appropriate cases involving even non-compoundable offenses, the High Court can quash prosecution by exercising powers under Section 482 of the Criminal Procedure Code if the parties have truly settled the entire dispute or if the prosecution would serve no purpose other than wasting the court’s valuable time.
The High Court cited Gian Singh vs. the State of Punjab (2012) and Narinder Singh & Ors. vs. the State of Punjab (2014) (especially paragraph 29) in support of quashing the FIR against the accused based on the parties’ settlement of their differences.
The Supreme Court bench led by Justices Ajay Rastogi and Abhay S. Oka stayed a Kerala High Court order issued on August 26, 2019, that quashed a First Information Report (FIR) filed against an accused under the Protection of Children from Sexual Offenses (POCSO) Act, 2012 only if the parties reached an agreement.
While hearing the Kerala Government’s appeal against the ruling, the bench noted the government’s argument that quashing the FIR is not admissible in light of the Supreme Court’s decision in the State of Madhya Pradesh vs. Laxmi Narayan & Ors (2019). The bench issued a notice, which must be returned within eight weeks while delaying the High Court’s order and allowing the state police to investigate the case further.
Hence, according to the judgment of the Hon’ble Supreme Court of India, we can conclude that compromise between the petitioner and the accused can’t be the reason for quashing the FIR under POCSO Act.
- SC stays order of Kerala HC, https://www.theleaflet.in/sc-stays-kerala-hc-order-quashing-fir-in-pocso-case-citing-compromise-between-the-accused-and-the-complainant/
This article is written by Dalima Pushkarna student at Dr Ram Manohar Lohiya National Law University, Lucknow.