Abstract
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.

However, 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 perversions.

Introduction
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 procedure.
   
• 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 conscience.
• 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.

Conclusion
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:

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Written By: Md. Imran Wahab, IPS, IGP, Provisioning, West Bengal
Email: [email protected], Ph no: 9836576565