Sexual Assault Under POCSO Act

Coverage of this Article

Key Takeaways

-An overview of the POCSO Act and the reasons why it came into existence.

Introduction

-The Protection of Children from Sexual Offences Act, 2012 is gender-neutral and was enacted to protect children from the offenses of sexual assault, sexual harassment, and pornography, and to provide for the establishment of Special Courts for the trial of such offenses against the children. 

Provisions For Sexual Assault Under The Act

-Sections 3 to 10 of the POCSO Act deal with the provisions of sexual assault.

ATTORNEY GENERAL OF INDIA V. SATISH [CRIMINAL APPEAL NO. 1414 OF 2021]

-The Hon’ble Supreme Court in this appeal set aside the judgment of the Hon’ble Bombay High Court in the case of Satish v. State of Maharashtra, which held that “skin to skin contact” is necessary for the commission of sexual assault under Section 7 of the Protection of Children from Sexual Offences Act, 2012. 

MOHAMMAD SAIMULLAH V. STATE OF MEGHALAYA [Crl.Rev.P. No. 1 of 2022]

-In the above-mentioned case, the Hon’ble Meghalaya High Court ruled that the act of holding a child’s hand and saying that they are beautiful is not a crime. 

Conclusion

-Despite the establishment of various Fast Track and Special Courts, no significant results can be seen.

Key Takeaways

• An overview of the POCSO Act and the reasons why it came into existence.
• A brief explanation of the provisions of the Act related to sexual assault.
• Landmark judgments of the Hon’ble Supreme Court that overruled the redundant and erroneous judgments made by the respective High Courts in the cases of child sexual assault under the POCSO Act.

Introduction

The Protection of Children from Sexual Offences Act, 2012 is gender-neutral and was enacted to protect children from the offenses of sexual assault, sexual harassment, and pornography, and to provide for the establishment of Special Courts for the trial of such offenses against the children. It empowers the State to make special provisions for children for their protection against sexual offenses. As per the Act, for the proper development of a child, his or her right to privacy and confidentiality needs to be protected and respected by every person in all manners and through the various stages of a judicial process involving the child. According to the NCRB Report on Crimes against Children, despite the prevalence of a strong legal framework regarding such offenses against children, there has been a substantial increase in the number of crimes reported every year. The number stands close to a total of 1.5 lakh cases in the year 2019 itself. The number increased from 1,29,032 cases in the year 2017 to 1,41,764 cases in the year 2018 and 1,48,185 cases in the year 2019. Cases under the POCSO Act, however, increased by 22% in 2018 and 19% in the year 2019. 32% of the total crimes that were committed against children in 2019 were the cases registered under POCSO Act, and this number increased to 47,335 cases in 2019. The highest numbers of cases under the POCSO Act, i.e. 7,594 and 6,558 cases have been registered in the States of Uttar Pradesh and Maharashtra respectively.

Provisions For Sexual Assault Under The Act

Sections 3 to 10 of the POCSO Act deal with the provisions of sexual assault. Section 3 defines the penetrative sexual assault as, if a person penetrates his penis into the vagina, mouth, urethra,or anus of a child, to any extent; or inserts any object or a part of the body, not being the penis, into the vagina, the urethra or anus of the child, to any extent; or manipulates any body part of the child so as to cause penetration; or applies his mouth to the vagina, penis, anus, urethra of the child or makes the child do all such acts to the person himself or any other person, will be said to have committed a penetrative sexual assault of the child. Child under the said Act means any person below the age of 18 years. As per Section 4 of the Act, whoever commits the penetrative sexual assault of a child shall be punished with imprisonment of a minimum of 10 years which may even extend to life imprisonment and fine. However, if such an offense is committed on a child below the age of 16 years, then the offender shall be punished with imprisonment of a minimum of 20 years, which may extend to imprisonment for life and a fine.

Section 5 of the Act defines the offense of aggravated penetrative sexual assault in a detailed manner. The Section includes sexual assault committed by a police officer, by a member of the armed or security forces, by the management staff of the hospital or educational or religious institution, gang penetrative sexual assault, using deadly weapons for penetration, etc. The punishment for aggravated penetrative sexual assault as per Section 6 of the Act is a minimum of 20 years which may also extend to life imprisonment and shall also be liable to fine or death.

The definition of sexual assault is provided under Section 7 of the Act as, when a person with a sexual intent touches the breast, anus, vagina, or penis or makes the child do so or does any other act with the sexual intent that involves the physical touch without any penetration is said to have committed the sexual assault.The punishment for sexual assault under Section 8 is imprisonment for a minimum of 3 years which may even extend to 5 years and liability to pay a fine.

Section 9 of the Act includes the commission of a sexual offense by a police officer, by a member of the armed forces or security forces, by the management staff of the hospital or educational or religious institution, or gang sexual assault, or any other act that inflicts bodily harm to the child or his/her sexual organs, etc. Such offenses are termed an aggravated sexual assault on a child. Punishment for such an assault under Section 10 of the said Act is imprisonment for a minimum of 5 years which may extend to the term of 7 years and even a fine.

ATTORNEY GENERAL OF INDIA V. SATISH [CRIMINAL APPEAL NO. 1414 OF 2021]

The Hon’ble Supreme Court in this appeal set aside the judgment of the Hon’ble Bombay High Court in the case of Satish v. State of Maharashtra, which held that “skin to skin contact” is necessary for the commission of sexual assault under Section 7 of the Protection of Children from Sexual Offences Act, 2012. The Hon’ble Supreme Court stayed the Bombay High Court’s order, saying that the judgment was “unprecedented” and was “likely to set a dangerous precedent”. The Hon’ble Supreme Court while quashing the Bombay High Court’s Judgment stated thatthe most important ingredient that constituted an offense of sexual assault under Section 7 of the POCSO Act was the “sexual intent”, and not the “skin-to-skin” contact with the child.

MOHAMMAD SAIMULLAH V. STATE OF MEGHALAYA [Crl.Rev.P. No. 1 of 2022]

In the above-mentioned case, the Hon’ble Meghalaya High Court ruled that the act of holding a child’s hand and saying that they are beautiful is not a crime. A case was filed after a 55-year-old man asked a 9-year-old girl for a glass of water and then grabbed her hand and said your hands are beautiful. The act was contended to have covered the provisions of Sections 7 (sexual assault) and 9 (m) (aggravated sexual assault) of the POCSO Act and Sections 354 (outraging modesty of a woman) and 354A (sexual harassment) of the Indian Penal Code, 1860 by a special POCSO court. Justice W. Diengdoh, while referring to the relevant provisions of the POCSO Act and the judgment of the case Attorney General of India v. Satish (supra), observed that since the place of occurrence was near the residence of the alleged victim, where she was playing and a group of persons was playing cards when she was asked to bring a glass of water, it can be presumed that it was a public place. The incident of holding hands and commenting “beautiful”, happened in a public place in front of several people in daylight, therefore, it cannot be said that the man had a sexual intent while doing so. Also, the Hon’ble Court referred to the case of Bandu VitthalraoBorwar v. State of Maharashtra [CRIMINAL APPEAL No.50 OF 2016]and held that the sexual intent of the accused is a relevant aspect in such cases that needs to be considered.

Conclusion

Despite the establishment of various Fast Track and Special Courts, no significant results can be seen. The cases of child sexual abuse or assault are increasing every year and a maximum of the cases are still pending in the Courts. In India, we have got various provisions to protect the modesty of a woman provided under IPC and CrPC. Apart from that, several acts like the POCSO Act, 2012, Immoral Traffic Prevention Act, 1956, etc. have been established so as to eradicate the commission of such offenses not only against the women but against everyone including children (below the age of 18 years) by way of prescribing for stringent punishments for such offenses. But there is no reduction in the number of cases, they are however increasing every year instead. Perhaps there is a requirement for the revision of all the existing statutes to find out the loopholes in them and make possible amendments to them.