POCSO Act and its bail provisions under POCSO Act

What is POCSO Act

POCSO Act is an act which was enacted by the Parliament in 2012 to prevent children aged less than 18 from offences like sexual harassment, sexual assault, and child pornography. POCSO Act was enacted to make the punishment for child abuse more stringent, the government notified the POCSO Act rules, 2020 which enabled the implementation of amendments to the Act.

POCSO Act 2012 created a safer environment for the children of India. It was adopted to protect children from sexual offence acts like act of sexual harassment and assault and child pornography. This act asks for the setting up of Special Courts that are better equipped to deal with such offences in a more effective manner.

Cases under the Protection of Children from sexual Offences Act (POCSO), 2012 are classic examples of a girl using as a weapon the very law that was made to protect her. The consenting age mentioned under the Act is 18 yrs. Prior to the legislation of POCSO, the consenting age was 16 yrs. However, the Convention on the Child Rights raised this age to 18 yrs. This article advocates the challenges faces by the trial and appellate Courts while granting anticipatory bail in POCSO cases. Consenting age has become a genuine challenge for the Courts especially when the complainant and the accused remain in a mutual relationship and have consensual sex with each other. However, when the relationship starts to deteriorate, the girl initiates a criminal case against the boy and tries to falsely accuse him of rape under POCSO. This article examines how the laws that are enacted to protect the rights of minors are used as a weapon by certain sections of society against young boys and ruin the future of teenagers by maliciously initiating criminal proceedings against adolescents.

The POCSO was brought in response to India signing the UN Convention on Child Rights. It includes provisions on sexual harassment, human trafficking, child pornography, etc., and punishments for each head fluctuating from 10 yr's rigorous imprisonment to imprisonment for life and fine or both. Needless to say, the age of sexual consent is a tremendously important subject matter as it has a pivotal part in governing the exact type of relationship between girls and boys of teenagers. There exist numerous cases where trial and appellate court judges face myriad difficulties in examining matter similar to consensual teen sex. There are cases where persons between 16 to 18 yrs. are engaged in love affairs and after some time they turn out to be prosecuted for an offense under the POCSO Act. Often such offenses ensnared in opposition to juveniles who become duped to the Act at such a tender age without having an understanding of the implications of the gravity of the offense. Since its enactment in 2012, the primary objective of the POCSO was to save minors from sexual offenses, abuse and exploitation and to provide severe punishment for any person found guilty of committing sexual offenses against children. The gravity of the offenses under this Act and the objective it hunts for cannot be overstated. Nonetheless, it is vital for the courts to entice a fine link that defines the conduct that will not come under the purview of the POCSO Act, rightfully in a way to quest that, if it did act rashly or recklessly, then it might lead to unsalvageable harm to the status and living of the youth, whose steps will only be bland. An act that was enacted to save and serve righteousness or justice to the sufferers and survivors of adolescent exploitation has, in the hands of a few members of society, become a tool to resort to the unjustified or unreasonable use of legal proceedings and prevent the freedom of an individual by falsely implicating them in POCSO.

Liberty of boys under Threat

We are not ignorant of the fact that liberty is a precious paragon for an individual. It is created an the substratum of the rights under the Constitution and puts the accent on the human rights principle. It is an innate right and is viewed as the syntax of life. Nobody likes to put his or her liberty under threat under threat or negotiate it for all the treasures of the world. We know that our ancestors for centuries have fought for liberty, as the absenteeism of liberty affects a sense of emptiness. The sacredness of liberty is the swivel of any civilized society. It is a fundamental value on which he civilized society rests. It cannot be allowed to be petrified and restrained. Denial of the liberty of a person has a mammoth influence on his own mind and body as well. 

A self-governing institution that is conjugal to the rule or strict letters of law cautiously guards the liberty of an individual. Society  by its combined insights through the procedure established by law can pull out the freedom that is endorsed to a person when the person becomes a threat to the consciousness of the society and the prevailing societal order. Intonation on personal freedom should not be pyramided to such an extent that might bring chaos and anarchy to a society. No person should try to form a concavity in the stem of the social stream. It is totally impermissible.

Thus, while a person behaves in a discordant way shepherding in muddled matters that society explicitly prohibits then the person will surely come into the grip of the law and will be responsible for bearing legal consequences arising therefo. So, at this juncture, the Court has a duty. Having said that the Courts are not governed by social norms, mores, and values per contra the Courts are only governed by the strict letters of the law. Hence, Courts cannot abandon its inviolable compulsion and pass any order at its own whim or caprice. The Court has to be guided by the established norms of the law keeping in view whether the person is falsely implicated or not.

Romantic relationships between the minors

There is a rapid rise in cases where a teenage girl and a boy have been eavesdropping on each other in a romantic relationship and after a certain period of time have become victims of offenses under the POCSO Act. These sorts of "teenage romances" of ten turn into consensual cohabitation, and the girl claims she is raped because of family pressure, societal fear, or when the boy shies away from engaging in marriage with the girl whom he is in love with Since having sex with a minor is considered "statutory rape", these types of complaints are registered crimes. 

In Ajay Kumar v. State (NCT of Delhi), the Court emphasized that the aim of POCSO is to save kids below 18 yrs. from sexual exploitation and not to criminalize romantic relationships between consenting young adults. In many cases, couples run away from home carrying a sense of fear and opposition from their parents, leading to families prosecuting the man for the offense of rape under the POCSO Act and abduction having the intention in order to get married under the relevant provisions of IPC, 1860 or the Prohibition of Child Marriage Act 2006 where the consent of the girl is vitiated and the boy is pigeonholed as a criminal even though the relationship may have had mutual consent.

Such cases lead to miscarriage of justice as they not only destroy the life of the accused but also impede the mental growth of the adolescents by treating them as children incapable of independent decision-making. When a girl below the age of 18 yrs. is engaged in an affair with a young boy(s) or slightly older, it is always questionable to define such a relationship, although such a relationship might develop due to the consequences arising out of common virtuousness and biological fascination. Such an affiliation can't be regarded as peculiar or alien to the bonding of the opposite sex.

Nevertheless, the real hurdles begin in those matters in which the age of the prosecutrix is less than 18 yrs. although she is in the capacity to give her consent to enter into the relationship and is mature by mind, tactlessly, they come into the grip of the POCSO when the relationship starts getting sour and goes beyond platonic limits, attracting the provision of POCSO confronting the perpetrator of offence, for which he faces a severe prison sentence of 7/10 years.

Moreover, there is also another seminal issue under POCSO wherein unfortunately the minor daughters are being used as bails to satisfy personal vendetta. Up till today, it is common knowledge that cross-complaints are filed cases under Section 326, 307, or at the most under Section 302 of the Penal Code, 1860, or under section 420 of the Penal Code 1860 or under 420 of IPC. The fabric of the society has been shattered to such an extent that today, the dignity and honour of minor girls are also put at stake, just to satisfy their own vendetta. The parents are unthoughtful of the fact that girls have to grow up on the society with honour and dignity. They are exposed to social obloquy by their own parents and that would hamper the healthy growth of the personality of a woman in society.

Courts views on Anticipatory Bail

Grounds for Granting Anticipatory Bail

In Deepak Yadav v. State of Uttar Pradesh, the Court referred following considerations while granting anticipatory bail to the accused:

1. If there exists any prima facie or reason to believe that the offense is committed by the perpetrator;
2. Gravity and nature of the offense or accusation made;
3. what is the severity of the punishment if the accused is convicted;
4. Whether the accused might flee or abscond in granted bail;
5. character, behavior, means, position, and standing of the accused in society;
6. probability of the repetition of the offense;

In the matter of XYZ v. State of Maharastra, the High Court of Bombay allowed bail to a 25-yrs-old man who was prosecuted for the offenses under Section 3, 4, and 7 of the POCSO for engaging in consensual sexual intercourse with his 17-year-old partner. The Court highlighted that the girl was quite sure in her view and about her expectations from her own life, totally cognizant and all set to bear the costs arising out of the rapport that both were keeping with each other. Now the mooting question here was whether there was a consensual relationship between the Prosecutrix and the Accused and the public prosecutor did not argue that the physical relationship with the prosecutrix was against her will and without her consent and was the sentence of the man under Sec(s) 4 and 6 of the POCSO Act and Section 376 is actionable? The Court further accentuated that sexual autonomy includes the right to desired sexual activity as well as the right to protection from undesired sexual aggression. Human sexual pride could only be considered wholly respected when both aspects of adolescent rights are recognized.

Calcutta High Court in the matter of Ranjit Rajbanshi v. State of west Bengal granted bail to a 22-year old boy who was prosecuted for the offence U/s 376 of IPC and Sec 4 of the POCSO for having consensual sex with the 16- and a half old victim. The Court emphasized that the law is very clear in defining "Child" under POCSO By virtue of Sec 2(d) of the Act any individual who is less than the age of 18 yrs. is considered to be a Child under the law, but to sentence an individual for offences like penetrative sexual assault, the psych maturity, and previous conduct of the victim vis-a-vis the accused also attain some relevance.

In Imran Iqbal Shaikh v. State of Maharashtra, the Bombay High Court allowed the bail application of 22 year old accused who was prosecuted for the offense U/S 376 IPC and Sec. 4 of the POCSO. The Court highlighted that it is true that the prosecutrix is a child within the meaning of Sec 2(d) of the Act. The complainant was too a teenage boy who was 22 year old when the offense was committed. The statement of the first informant prima facie suggested that the relationship was consensual. It is to be noted that the POCSO Act has been legislated to prevent teenagers especially children from sexual offenses, sexual aggression etc. and includes strict punitive provisions to protect interest and welfare of children. The goal has never been to give punishment to minors who are in a passionate relationship made through consent and label them as hardcore criminals. 

Law commission report 283 (2023)

On 27-9-2023 the Law commission of India publishes its Report No. 283 on the subject "Age of Consent under the Protection of Children from Sexual offences Act, 2012". The Report talks about bringing certain amendments in the POCSO Act to remedy the situation where there is a tacit approval in fact and not a consent in law on part of the child aged between 16 to 18 years. However, the Commission was of the view that it is not advisable to tinker with the existing age of consent under the POCSO Act.

Background

The Karnataka High Court (Dharwas Bench) asked the Commission to rethink the age criteria for consent under the POCSO Act considering the rising number of cases relating to minor girls above the age of 16 years coming to relationships, eloping and having sexual intercourse with boys, thereby attracting the provisions of POCSO Act and Penal Code, 1860.

The MP High Court (Gwalior Bench) also drew Commission's attention on how the enforcement of the POCSO Act causes gross injustice in cases of rape where De Facto consent is present. The Court also requested to suggest amendment to the POCSO Act, vesting discretionary power in the Special Judge to not impose the statutory minimum sentence in cases where de facto consent is apparent on part of the girl child or where such a relationship has culminated in marriage, with or without children.

The Commission, in consultation with National Commission for Protection of Child Right ("NCPCR"), former judges, lawyers, child rights activists, NGOs and academicians having expertise in this field, examined the judgement s rendered by the High Court of Karnataka and Madhya Pradesh in State of Karnataka v. Basavraj, (2023) and Veekesh Kalawat v. State of Madhya Pradesh. [Misc. Criminal Case No. 4521 of 2023] respectively.

Law Commission View 

After reviewing the existing child protection law, various judgments and considering the maladies of child abuse, child trafficking and child prostitution, plaguing our society, the Commission was of the view that it is not advisable to tinker with the existing age of consent under the POCSO Act.

Although, the Commission also considered it necessary that there is a need to bring certain amendments in the POCSO Act to remedy the situation where there is a tactic approval in fact and not a consent in law on part of the child aged between 16 to 18 years. The Commission said that such cases do not merit to be dealt with the same severity as the cases that were ideally imagined falling under the POCSO Act. Therefore, the Commission introduced guided judicial discretion in the matter of sentencing such cases ensuring that the law is balaced thus safeguarding the best interests of the child.

Recommendations of Law Commission

1. Amendment to Section 4 and Section 8 of POCSO Act relating to Punishment for penetrative sexual assault and Punishment for sexual assault, the following clauses should be inserted:

Where the child on whom the offence was committed, at the offence was of the age of 16 or above and where the Special Court if satisfied that the relationship between the accused and the child has been intimate, it can, in its discretion, impose lesser sentence than 10 years.

While reducing the sentence lesser than 10 years, the Special Court will have to take into account the following aspects:

• Tacit approval of child;
• The age gap between the accused and child is not more than 3 years;
• Accused does not have any criminal record;
• Accused bear a good conduct after the occurrence of offence;
• Accused married the child on attaining majority and they are leading a happy married life;
• Whether any child was born in the relationship between the accused and the child, etc.

2. Amendment to Section 18 of Juvenile Justice (Care and Protection of Children) Act, 2015 which relates to Orders regarding child found to be in conflict with law.

3. Amendment in Section 375 or 376 Penal Code - Amendment is necessary because the current position in law as it stands is that even if the husband has consensual sexual intercourse with his wife who is below the age of 18 years, it will amount to rape under this provision.

4. Spreading Awareness regarding Child Sexual Abuse, Sexual & Reproductive Health as well as the provisions of the POCSO Act comprehensive and age-appropriate sex education should be made mandatory part of school curriculum and government programs like Rashtriya Kishor Swasthya Karyakram should be utilized to inform and empower the adolescent population of India.

Credit: Lawsikho