The POCSO Act has been enacted keeping in mind Article 15 and 39 of the Constitution of India. Article 15 of the Constitution, inter alia, confers upon the State powers to make special provision for children. Article 39, inter alia, provides that the State shall in particular direct its policy towards securing that the tender age of children are not abused and their childhood and youth are protected against exploitation and they are given facilities to develop in a healthy manner and in conditions of freedom and dignity. To achieve the goal as per Article 15 and 39 of the Constitution, the legislature has enacted the Protection of Children from Sexual Offences Act, 2012.
The United Nations Convention on the Rights of Children, to which India is a signatory to the treaty, the State Parties to undertake all appropriate national, bilateral and multilateral measures to prevent (a) the inducement or coercion of a child to engage in any unlawful sexual activity; (b) the exploitative use of children in prostitution or other unlawful sexual practices; and (c) the exploitative use of children in pornographic performances and materials.
As per Section 3 of the POSCO Act, a person is said to commit ‘penetrative sexual assault’ if (b) he inserts, to any extent, any object of a part of the body, not being the penis, into the vagina………. Section 4 provides ‘punishment for penetrative sexual assault’. Section 5 of the Act defines ‘aggravated penetrative sexual assault’ and as per Section 5(m) whoever commits penetrative sexual assault on a child below twelve years it is aggravated penetrative sexual assault. Section 6 provides ‘punishment for aggravated penetrative sexual assault.
Nawabuddin vs. State of Uttarakhand [Supreme Court-Crl Appeal 144 of 2022]
The accused contented that in absence of penetration and aggravated penetrative assault, the accused could not have been convicted for the offences punishable under Section5/ 6 of the POCSO Act.
The Trial Court convicted the accused for the offences punishable under Sections 376(2)(i) of IPC and Section 5/6 of the POCSO Act. Therefore, it is the case on behalf of the accused that as it is neither a case of penetrative sexual assault nor aggravated penetrative sexual assault, therefore the punishment of life imprisonment imposed was not warranted and at the highest he could have been punished with imprisonment of either description for a term which shall not be less than three years but which may extend to five years, and shall also be liable to fine.
Eera vs. State (NCT of Delhi) (2017) 15 SCC 133, the court has observed on the statement and objects and reasons of POCSO Act in para 20 as under:
“The purpose of referring to the statement of objects and reasons and the preamble of the POCSO Act is to appreciate that the very purpose of bringing a legislation of the present nature is to protect the children from sexual assault, harassment and exploitation and to secure the best interest of the child. On an avid and diligent discernment of the Preamble, it is manifest that it recognises the necessity of the right to privacy and confidentiality of a child to be protected and respected by every person by all means and through all stages of a judicial process involving the child. Best interest and well being are regarded as being of paramount importance at every stage to ensure the healthy physical, emotional, intellectual and social development of the child. There is also a stipulation that sexual exploitation and sexual abuse are heinous offences and need to be effectively addressed. The Statement of Objects and Reasons provides regard being had to the constitutional mandate, to direct its policy towards securing that the tender age of children is not abused and their childhood is protected against exploitation and they are given facilities to develop in a healthy manner and in conditions of freedom and dignity. There is also a mention which is quite significant that interest of the child, both as a victim as well as a witness, needs to be protected. The stress is on providing child friendly procedure. Dignity of the child has been laid immense emphasis in the scheme of legislation. Protection and interest occupy the seminal place in the text of the POSCO Act.”
Nipun Saxena v. Union of India (2019) 2 SCC 703, it is observed by the court that a minor who is subjected to sexual abuse needs to be protected even more than a major victim because a major victim being an adult may still be able to withstand the social ostracization and mental harassment meted out by society, but a minor victim will find it difficult to do so.
Alakh Alok Srivastava vs. Union of India & Ors. (2018) 17 SCC 291, the court held- it has to be stated with authority that the POCSO Act is a gender-neutral legislation. This act has been decided into various chapters and parts therein. Chapter II of the act titled “Sexual Offences Against Children” is segregated into five parts. Part A of the said chapter contains two sections, namely, Section 3 and Section 4. Section 3 defines the offence of “Penetrative Sexual Assault” whereas Section 4 lays down the punishment for the said offence. Section 5 copiously deal with various situations, circumstances and categories of persons where the offence of penetrative sexual assault. Section 5(k) in particular, while laying emphasis on the mental stability of a child stipulates that where an offender commits penetrative sexual assault on a child, by taking advantage of the child’s mental or physical disability, it shall amount to an offence of aggravated penetrative sexual assault.
The court is of the opinion that therefore the case would fall under Section 3(b) of the POCSO Act and Section 5(m) of the POCSO Act as such penetrative sexual assault was committed on a girl child apunishable under Section 6 of the POCSO Act. Therefore, both, the Trial Court as well as the High Court have rightly convicted the accused for the offences under Section 5 of the POCSO Act punishable under Section 6 of the POCSO Act.
10. Keeping in mind the aforesaid objects and to achieve what has been provided under Article 15 and 39 of the Constitution to protect children from the offences of sexual assault, sexual harassment, the POCSO Act, 2012 has been enacted. Any act of sexual assault or sexual harassment to the children should be viewed very seriously and all such offences of sexual assault, sexual harassment on the children have to be dealt with in a stringent manner and no leniency should be shown to a person who has committed the offence under the POCSO Act. By awarding a suitable punishment commensurate with the act of sexual assault, sexual harassment, a message must be conveyed to the society at large that, if anybody commits any offence under the POCSO Act of sexual assault, sexual harassment or use of children for pornographic purposes they shall be punished suitably and no leniency shall be shown to them. Cases of sexual assault or sexual harassment on the children are instances of perverse lust for sex where even innocent children are not spared in pursuit of such debased sexual pleasure.
Children are precious human resources of our country; they are the country’s future. The hope of tomorrow rests on them. But unfortunately, in our country, a girl child is in a very vulnerable position. There are different modes of her exploitation, including sexual assault and/or sexual abuse. The court was of the strong view that, exploitation of children in such a manner is a crime against humanity and the society. Therefore, the children and more particularly the girl child deserve full protection and need greater care and protection whether in the urban or rural areas.
The court cited observation held by this Court in the case of State of Rajasthan Vs. Om Prakash, (2002) 5 SCC 745, children need special care and protection and, in such cases, responsibility on the shoulders of the Courts is more onerous so as to provide proper legal protection to these children. In the case of Nipun Saxena v. Union of India, (2019) 2 SCC 703, it is observed by this Court that a minor who is subjected to sexual abuse needs to be protected even more than a major victim because a major victim being an adult may still be able to withstand the social ostracization and mental harassment meted out by society, but a minor victim will find it difficult to do so. Most crimes against minor victims are not even reported as very often, the perpetrator of the crime is a member of the family of the victim or a close friend. Therefore, the child needs extra protection. Therefore, no leniency can be shown to an accused who has committed the offences under the POCSO Act, 2012 and particularly when the same is proved by adequate evidence before a court of law.
The court observed that it is a case where trust has been betrayed and social values are impaired. Therefore, the accused as such does not deserve any sympathy and/or any leniency, the bench said.
HON’BLE MR JUSTICE M R SHAH
Judge Supreme Court of India
HON’BLE MR JUSTICE NAGRANTHA
Judge Supreme Court of India
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