GS Paper I & II

News Excerpt:

The Kerala High Court has held that a child charged with the offences under the Protection of Children from Sexual Offences (POCSO) Act, 2012, is to be prosecuted as per the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015. 

Background of the case:

• Kerala HC made the observation while disposing of a petition filed by a 13-year-old boy seeking to quash the case registered against him under the POCSO Act and various sections of the Indian Penal Code (IPC). 
• The prosecution case is that the petitioner had sexually assaulted another boy. 
• Counsel for petitioner submitted that prosecution of a child for an offence under the POCSO Act or sexual offences under the IPC was not possible as the offender, being a child, could not be attributed with the criminal intent. Therefore, the investigation against the petitioner was illegal.

Observations of the court:

• A ‘Child’ (as an offender) was not defined in the POCSO Act whereas it is defined in the JJ Act, 2015. 
• Section 2(12) of the JJ Act, defined a child to be a person who has not completed 18 years of age.
• When a child is the offender, he cannot be tried in the ordinary criminal court, but can be dealt with only as provided under the provisions of the JJ Act.
• If the offender is a child in conflict with law, whether for the offences under the POCSO Act or under any other statute, shall be inquired into only by a Juvenile Justice Board.
• In the event of filing a final report by the investigating agency, after due investigation with a finding that the petitioner has committed the offence, the board is obliged to inquire as provided under the JJ Act. 
• The court directed that the investigation against the petitioner be completed in two months.

Juvenile Justice (Care and Protection of Children) Act, 2015:

• The Act was introduced to replace the Juvenile Delinquency Law and the Juvenile Justice (Care and Protection of Children Act) 2000. 
• Objective of the Act is to adopt a child-friendly approach to the justice system, prioritising the rehabilitation and successful reintegration of children involved in legal conflicts, rather than punitive actions.
• As per the Act Children under the age of eighteen shall be presumed innocent of any wrongdoing.
• One of the main provisions of the new Act is allowing the trial of juveniles in the age group of 16-18 years as adults in cases of heinous crimes. 
• The nature of the crime, and whether the juvenile should be tried as a minor or a child, was to be determined by a Juvenile Justice Board. 
• This provision received impetus after the 2012 Delhi gangrape in which one of the accused was just short of 18 years, and was therefore tried as a juvenile.
• The Act directs that the Board shall consider the mental and physical capacity of the child for committing the alleged offence, the ability to understand the consequences of the offence, and the circumstances in which the offence was committed. 
• It states that the Board can take the assistance of experienced psychologists or psychosocial workers or other experts. 
• The Act also gives a disclaimer that the assessment is not a trial, but is only to assess the capacity of the child to commit and understand the consequences of the alleged offence.

Protection of Children from Sexual Offences (POCSO) Act, 2012:

• The Protection of Children from Sexual Offenses (POCSO) Act, 2012 was enacted by Government of India to safeguard children from sexual abuse and sexual offences. 
• The Act clearly defines a child as any person below the age of 18 years. 
• Under the Act a child could be a male or a female, the offender also could be a male or a female. POCSO is a gender neutral law.
• The POCSO Act provides punishment as per the gravity of offence.
• The Act was further reviewed and amended in 2019 to Introduce more stringent punishment including the death penalty for Committing sexual crimes on children, with a view to deter the perpetrators & prevent such crimes against children.