POCSO Act

Pocso Act And Its Operation

To deal with child sexual abuse cases, the Government has brought in a particular law, namely, The Protection of Children from Sexual Offences (POCSO) Act, 2012. The Act was enacted on 14 November 2012, along with the Rules framed thereunder. The POCSO Act, 2012 is a comprehensive law to provide for the protection of children from the offences of sexual assault, sexual harassment and pornography while safeguarding the interests of the child at every stage of the judicial process by incorporating child-friendly mechanisms for reporting, recording of evidence, investigation and speedy trial of offences through designated Special Courts. The said Act defines a child as any person below eighteen. It describes different forms of sexual abuse, including penetrative and non-penetrative assault, as well as sexual harassment and pornography.

Despite the objective above of the POCSO ACT, this Act is rampantly used against innocent men for being in voluntary sexual union with minor females across the length and breadth of the country. In the wake of the operation of the Act against men, the recently declared judgment of the Calcutta High Court has opined that “it is not right to indict only the male in cases under the Protection of Children against Sexual Offences Act (POCSO Act) if the alleged sexual union is participatory in nature and between two sufficiently mature persons”

In the case of Calcutta High Court Ranjit Rajbanshi Vs. The State of West Bengal and others, C.R.A. No.458 of 2018 I.A. No: CRAN 2 of 2020:

Facts

The age of the accused was 22 years, and that of the victim was 16 ½ at the time of the First Information Report (F.I.R.) and studied in Class XII at the relevant point of time. The accused was guilty of rape under 376 (1) I.P.C. and section 3 of POCSO ACT.

During the trial, the court found that the victim was not naïve enough not to know the implication of sexual intercourse; instead, the victim admittedly had a physical relationship with the accused, who was also of a very young age, on several occasions before the incident.

In the light of the aforementioned circumstances, the High Court Justice contextually interpreted  Section 3 of Protection of Children from Sexual Offences Act, 2012 : Penetrative sexual assault which is :-

(1) In this Act, unless the context otherwise requires, –

A person is said to commit “penetrative sexual assault” if-

1. he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person; or
2. he inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of the child or makes the child to do so with him or any other person; or
3. he 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 makes the child to do so with him or any other person; or
4. he 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

“Although the consent of a minor is not a good consent in law, and cannot be taken into account as ‘consent’ as such, the expression ‘penetration’ as envisaged in the POCSO Act has to be taken to mean a positive, unilateral act on the part of the accused. Consensual participatory intercourse, in view of the passion involved, need not always make penetration, by itself, an unilateral positive act of the accused but might also be a union between two persons out of their own volition. In the latter case, the expression ‘penetrates’, in Section 3(a) of the POCSO Act might not always connote mere voluntary juxtaposition of the sexual organs of two persons of different genders. If the union is participatory in nature, there is no reason to indict only the male just because of the peculiar nature of anatomy of the sexual organs of different genders. The psyche of the parties and the maturity level of the victim are also relevant factors to be taken into consideration to decide whether the penetration was a unilateral and positive act on the part of the male. Hence, seen in proper perspective, the act alleged, even if proved, could not tantamount to penetration sufficient to attract Section 3 of the POCSO Act, keeping in view the admitted several prior occasions of physical union between the accused and the victim and the maturity of the victim.  As such, it cannot be said that the accused was guilty of penetrative sexual assault, as such, since here the act of penetration, even if true, would have to be taken not as an unilateral act of the accused but a participatory moment of passion involving the participation of both the victim and the accused.”

The High Court stated that the definition of “child” given in Section 2 (d) of the POCSO ACT means any person below the age of eighteen years;

“even a person who is aged 17 years and 364 days would qualify as a child, but her maturity would not be much different from another person, who was just one day older than her, that is, 18 years old. The POCSO Act defines anyone under eighteen years of age as a ‘child’, but to convict a person for penetrative sexual assault, the psyche, maturity and previous conduct of the victim vis-à-vis the accused also acquires relevance.”

In the present case, the previous relation between the victim and the accused and their physical union on several occasions raises a strong presumption that the alleged incriminating act is participatory at both ends and not a unilateral act of the accused.

Section 376 (Punishment for Rape: Proposed Section 64 of The Bharatiya Nyaya Sanhita, 2023) of the Indian Penal Code, 1860 is produced herein to understand the definition of “Rape”:-

A man is said to commit “rape” if he—

1. penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or
2. inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or
3. manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or
4. applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions1:
5. Against her will.
6. Without her consent.
7. With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.
8. With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
9. With her consent when, at the time of giving such consent, because of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome Substance, she is unable to understand the nature and consequences of that to which she gives consent.
10. With or without her consent, when she is under eighteen years of age.
11. When she is unable to communicate consent.

Explanations

1. For the purposes of this section, “vagina” shall also include labia majora.
2. Consent means an unequivocal voluntary agreement when the woman, by words, gestures or any form of verbal or non-verbal communication, communicates a willingness to participate in the specific sexual act, Provided that a woman who does not physically resist the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.

According to the aforesaid definition of offence “Rape” “with or without consent of a woman under 18 years of age is considered “Rape” however it is stated in the said judgment :

“Although the question of consent does not arise in case of a minor, in order to attract Section 376(1) of the IPC, it had to be established that the alleged offence was committed against the will of the victim. Read in conjunction, the provisions of Section 376 (Punishment for Rape: Proposed Section 64 of The Bharariya Nyaya Sanhita, 2023) of the IPC and Section 3 of the POCSO Act ought to be construed on a similar footing and cannot incriminate the accused for a voluntary joint act of sexual union”

“Under the contextual interpretation of the expression ‘penetration’ as used in Section 3 of the POCSO Act and Section 376(1) of the IPC, no unilateral forcible act of penetration, solely on the part of the accused, was established on the basis of the evidence on record. On the contrary, a prior relationship between the two comparatively mature persons has been admitted in the present case, leading to the alleged incident”.

“The court’s interpretation of a statute cannot be with eyes closed to practical realities and have to be construed in proper perspective, keeping in view the objects and reasons of the Act. The stated object of the Act is to protect children from offences of sexual assault, sexual harassment and pornography and to provide for establishment of Special Courts for trial of such offences for matters connected therewith or incidental thereto. As such, while construing the expression ‘child’ in appropriate perspective, the age, maturity and other circumstances also becomes relevant to clinch a case on the ground of penetrative sexual assault”

Conclusion The Hon’ble Calcutta High Court has amply propounded that the law of POCSCO is for the protection of children and punishing and setting deterrence against the people indulging in sexual offences with children. Still, it can’t used as a tool to punish males in voluntary sexual union just by relying on the definition of the “child” given in Section 2 (d) of the Pocso Act, 2012. As such, while construing the expression ‘child’ from an appropriate perspective, majorly three significant factors to be observed by the court of law:-

1. Age of the victim: In a case wherein voluntary sexual union is involved, the Age of the victim shows that the victim was mentally capable of evaluating the consequences of such a voluntary sexual encounter or not. A 14-year-old, in comparison to a 17-year-old, can’t know the consequences of voluntary sexual acts. Therefore, the Age of the victim allows the court of law to determine the quality of voluntariness of the victim in a voluntary sexual union.
2. Maturity of the victim: As is the case with the victim’s age, the level of maturity enables the court to measure the mental and psychological development of the victim. It allows the court to check the thought process of the victim while granting consent to sexual acts.
3. Other circumstances: The third factor to be perused by the court in a case of voluntary sexual union case is the circumstances when the sexual union was done.

As such, while construing the expression “Child” in an appropriate perspective, the age, maturity, and other circumstances also become relevant to clinch a case on the grounds of penetrative sexual assault. The level of maturity and psyche and previous conduct of the victim in a case is to be perused by the court while determining the “penetrative sexual act” under section 3 of the POCSO Act.

The contextual interpretation of this case of the POCSO Act will prove to be more effective in punishing the culprits and acquitting the innocents.