Want to cut a partner to size in a divorce battle or destroy a neighbour in a boundary dispute? Wave POCSO Act

No other laws are as ruthless on the accused as the Protection of Children from Sexual Offences (POCSO) Act, 2012. Those accused of multiple murders and rapes under other criminal statutes are treated far more mercifully than someone accused of even touching a child with sexual intent under POCSO Act.

This uncompromising severity is undoubtedly a deterrent against the sexual assault of a child. However, for some others, this has thrown open a legal opportunity. “We have found that the POCSO Act is invoked quite commonly in separation and custodial cases,” a senior member of the Kerala State Commission for the Protection of Child Rights, told Onmanorama.

“If a wife wants divorce from a husband or the custody of their children, her lawyers advise her to somehow influence a child and get him or her to level charges of sexual assault against the father. This happens the other way also,” the member said.

Sacrificial lambs in revenge dramas
Early this month (November), a man who was accused of raping his seven-year-old child, was acquitted by the High Court. It was found that his second wife wanted his house and property all for herself and, to this end, employed lies and veiled threats to sway her step-daughter to make a sexual abuse charge against her own father. The man spent nearly a year in prison before he was let off.

In Kadakkavur in Thiruvananthapuram, the reverse had happened. A man, who wanted vengenace on his first wife, used his power over his son and made him claim that he was sexually abused by his own mother. However, a medical examination conducted by the police found no evidence. By then, she had spent nearly a month in prison. In this case, the estranged wife moving the court for the custody of their four children seemed to be the provocation.

Who is the real victim?
In 2019, the High Court had thrown out a POCSO case against a 27-year-old van driver who was accused of shouldering a 13-year-old girl allegedly with sexual intent. The court found that the police, who wanted the van driver jailed, had coached the girl to provide a coloured version of the events to the magistrate. Fortunately for the van driver, the witnesses to the incident, two boys, did not corroborate the girl's statement.

While disposing of the case, the court said: “In a case of sexual offence where an accused is falsely implicated, the real victim in such false cases is not the ‘alleged victim’ of sexual violence, but the accused, who has been falsely implicated in the crime of sexual violence, which has been instituted falsely. This aspect of the matter has to be borne in mind by the investigating officers, prosecutors as well as by the courts.”

Police chief's warning

By then, the Kerala government had also woken up to the misuse of the POCSO Act. On the basis of a study done by the police, the then State Police Chief Loknath Behra had issued a circular in September 2018 itself, warning law enforcers against blind belief in the victim's statement.

“A sizeable percentage of POCSO cases were initiated for settling family disputes/political or personal vengeance. In these cases also, the investigating officers do not care to cross the limits of 164 statements (the victim's statement before the magistrate) to find the truth. Care should be taken to ensure the POCSO Act is not allowed to be misused by persons with vested interests using kids as pawns,” the order said.

The Child Rights Commission member said that POCSO was invoked to win even boundary disputes. “There was a case recently where a child accused the neighbour, a retired engineer, of sexual abuse. When a basic interrogation was done, the girl quickly confessed that she was forced by her father to make the claim. It turned out that both the families had a boundary dispute,” the member said.

POCSO's freakish nature
It is the nature of the POCSO Act, which seems to run counter to natural justice, that encourages vested interests to use it for personal gains. Under all other criminal statutes, the accused is deemed innocent until proven guilty.

This sacred premise of jurisprudence is turned upside down in the POCSO Act. Under Section 29 of this Act, the accused is presumed guilty until proven otherwise.

Here is what Section 29 says: “Where a person is prosecuted for committing or abetting or attempting to commit any offence under this Act, the special court shall presume that such person has committed or abetted or attempted to commit the offence unless the contrary is proved.”

This was largely interpreted to mean that disproving the charge was the sole responsibility of the accused. In all other cases, including murder, proving the charge was the burden of the prosecution.

HC reinterprets POCSO Act
So a case under the POCSO Act did not bother the police, they did not care to check whether there was anything absurd or improbable about the allegations. Nonetheless, if it suited them like in the case of the 27-year-old van driver, the police used it to trap innocents.

It was when this went too far, the State Police Chief issued a circular in 2018 warning against police indifference. The Kerala High Court then weighed in saying the POCSO Act has not freed police from any of its primary responsibilities.

In 2019, while delivering an order in a POCSO case, the court questioned this tendency to rely only on the victim's statement. “The statutory presumption under Section 29 of the Act does not mean that the prosecution version has to be accepted as gospel truth in every case. The presumption does not mean that the court cannot take into consideration the special features of a particular case. Patent absurdities or inherent infirmities or improbabilities in the prosecution version may lead to an irresistible inference of falsehood in the prosecution case,” it said.

Prevention of misuse
It also said that the presumption of guilt would come into play only when the prosecution was able to bring on record facts that would form the foundation for the presumption. “Otherwise, all that the prosecution would be required to do is to raise some allegations against the accused and to claim that the case projected by it is true,” the court said.

Essentially, the court meant that a POCSO accused can be presumed guilty only after the “foundational facts of the case” are established. The foundational facts are: Proof that the victim is a child, evidence that the alleged incident has taken place, and the medical evidence to support the charges of abuse.

For instance, in 2017, a psychologist was accused of “attempting to touch the breast of a girl” and was remanded. In 2019, while giving bail to the accused, the High Court observed that there was no allegation that the accused had actually touched the private parts of the girl. There was just an “attempt” that the police had not established.

Establishing the foundational facts could be a bulwark against misuse. "The insistence on establishment of foundational facts by the prosecution acts as a safety guard against misapplication of statutory presumptions", the High Court single judge bench of Justice Sunil Thomas said in November, 2020.

Mounting POCSO backlog
Such fake complaints are one of the reasons POCSO cases rarely complete trial. The other being victims, under the influence of close family members, retracting their statements.

In Kerala, till 2019, only 16.21% of cases booked under POCSO Act have completed trial. (Official figures are available only till 2019. In the last two years, because courts were shut down in the wake of COVID-19, the situation has worsened.)

By 2019, the total number of cases booked under the POCSO Act in Kerala was 8,678. Those that completed trial were 1,406, just 16.21%. The remaining 7,271 cases (83.79% of the total) are either languishing in special courts or were dumped even before they could reach the trial stage as they were found to be fabricated in a preliminary investigation.