By Dr Nazima Afzal Nzaad:
When the concept of civilized societies has been emerged and mankind towards influential tendencies of seeking protection under statutory provisions of various Legislations these protective Legislations even become the matter of paramount consideration in perspectives of children who became the victims of sexual offenses for this regard the very important Legislation of 2012 protection of children against sexual offence pocso Act has been enacted adhere to gender neutrality. The perspectives of various provisions adherence to its implications is described in taxonomic order of three heads namely philosophy epistemology and metaphysics
The philosophical tendencies of this enactment attributes to the commitment of India as a signatory of United Nation convention on rights of child 1989 as well as constitutional mandate Article 15 3 of constitution of India which empowers the state to make special provisions for protection of child rights.
The Law Introduces a graded system of offenses such as aggregated sexual assault by person in position of trust authority or custody inflicts deeper psychological and systemic harm.
The underlying perspectives of Directive principles of state policy under articles 39e 39.F. The Epistemology adhere to operational harmony and alignment of Juvenile justice and POCSO Act 2012.
The section2 of the POCSO Act 2012 has laid down certain definitions.
The section 2(1)d defines the term child , means any person who the age of eighteen years , there are certain doctrines attribute to child welfare ,Doctrine of parens patriae which means parent of the nation which establishes the inherent power of the nation to protect and care for vulnerable individuals such as children who can not protect themselves This particular doctrine manifests through several key legal principles underlying POSCO Act 2012 The best intrest of the child it is derived from international convention, this principle dictates that every decision investigation must prioritize the physical emotional and psychological well being When the aspect of age of the child has been taken in to consideration the question arises whether the particular individual falls under the definition of child or not for this regard the aspect of doctrine parimateria has taken in to consideration meaning on the same subject matter on specific statutory frame work like POCSO need parimateria with the Juvenile Justice Act Supreme Court of India has established explicit jurisprudence on resolving dispute regarding age of the child , the Supreme Court of India has ruled that the statutory matrix for age determination must be strictly followed for both children in conflict with Law and for children who need care and protection Jernail Singh VS State of Haryana 2013
The Court ruled that the statutory mechanism provided under the Juvenile Justice care and protection of children Act and rules must be prioritize to determine the age of the victim under the POCSO Act The Court established that biological or chronological age validated via matriculation certificate birth record or medical ossification test in that hierarchical order overrides arbitrary parameters like physical or mental development Yuvaprakash VS State 2023 the Supreme Court of India reiterated that when determining the age of a child victim under POCSO case the Court can not rely on guess work or general opinion or ossification test of primary stetutory documents like matriculation certificate or birth certificate from the School of first attended are available The metaphysical aspect of POCSO Act adherence to procedural aspects and speedy trial Before start of speaking about procedural perspectives under this Act it is necessary to consider se more important definitions under POCSO Act like section 3 talks about penetrative sexual assault which is punishable under section 4 of this Act. The penetrative sexual assault can be defined as ,Any act where a person asserts penis object or body part in to the vagina urethra anus or mouth of a child or manipulate the child body parts to cause penetration with out any Lawful medical or corrective purpose Aggravated penetrative sexual assault defined under section 5 and punishment under section 6, who ever commits penetrative sexual assault.
1.Being a police officer commits penetrative sexual assault
limits of the police station to which such police officer is appointed or in which he is on duty or
B In the premises of any station house or
C on a child in his custody of a police officer subordinate to limit
- Being a public servant takes advantage of his official position and commits penetrative sexual assault on a child in his custody as such public servant or in the custody of a public servant subordinate to him.
- Being a person in a position of trust or authority towards the child commits penetrative sexual assault on such child.
- Being a member on the armed force or security officer takes advantage of his official position and commits penetrative sexual assault on child in his custody or within the limits of the area where he is deployed.
- Commits penetrative sexual assault knowing that the child is pregnant.
- Commits penetrative sexual assault on a child who is suffering from a mental illness or physical or mental disability.
The procedure for commitment of a case to trial is governed by section 28 and section 33 of this Act aligned with section of CRPC and section of BNS. Irregular criminal procedure a Magistrate must formally commit a case to a court of Session the POCSO Act bypass this requirement to ensure speedy trial
Section 38 talks about designation of special court for the speedy trial
Section33 talks about powers of special court
The procedure for trial commence when filling police report upon completing the investigation the police submit the charge sheet special report directly to the designated POCSO special Court Taking cognizance under section 33. 1 the special court direct cognizance of the offence it does not wait for a lower Magistrate to commit the file The special court issues warrants to ensure the appearance of the accused and supplies them with copies of the police report.
State of Rajasthan VS Suresh kumar
Ravi VS State of Maharashtra
The court evaluate the record to frame formal charges against the accused The trial then proceeds under strict guidelines in camera proceedings frequent breaks for the child and ensuring the child does not face the accused as mandated under sections 33 and 37 of this Act.
