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BAIL UNDER POCSO

The prevention of child sexual offences act was formulated in 2011 and was enacted in 2012 in lieu of the increasing knowledge of sexual offences against minors which in India by that time covered approximately 24% of the total offences in our nation to add to it these children have suffered by the person who was in a trustable position.

Before POCSO, 2012 the child sexual offences were covered under the IPC 375 Rape law, IPC 354- outraging the modesty of a woman and IPC 377 of unnatural offences. However since section 377 did not define ‘unnatural offences’ and further more loopholes like lack of gender neutrality of the IPC it was found essential to form a legal aid dedicated particular to protection of minors.

BAIL IN POCSO CASES

Also Read- ACQUITTAL IN RAPE CASES

IMPORTANT POINTS TO CONSIDER UNDER POCSO

  • If someone is in knowledge of an incident under POCSO such incident must be reported immediately (section 19(1) and section 20)
  • Sexual assault implies any inappropriate gesture, show of pornography, threatening or fabricating a minor and also any penetrative sexual assault. (Section 11 and 12)
  • There is a special provision against police officers and public offenders. (Section 5 and 9)
  • Place of recording of statement must be decided as per the child’s comfort. (Section 24)
  • There are special courts to hear such matters and also special public prosecutors to be appointed, the burden of proof lies on the accused. (Section 28 and 29)

 

Also Read- APPREHENSION OF ARREST: GET AN ANTICIPATORY BAIL.

FILING OF CASE REPORT

The cases to be filed under POCSO are to be brought at a special court and the court has 30 days to review the same however for extreme cases the review can be done quicker.

The report for the same should be made to either Special juvenile police unit or local police.

Once the report is made it should be recorded in writing, given an entry number, read over to the informant and entered in a book to be kept by the police unit.

If the case is reported by a child the police officer has to also report child friendliness, the record of statement at a place comfortable to the child, interpretation of child’s statement, recording of medical evidence along with investigation of the offense.

 

The police also has to inform the parent of the child about the medical services given to their ward, the steps being taken, the details about the FIR and proceedings of the court, the dates of proceedings and the punishment to be given to the accused.

 

Also Read- HOW TO GET BAIL IN INDIA

PROCEDURE FOR THE ACCUSED UNDER POCSO

Under the POCSO there is no provision for bail, keeping in mind the sensitivity of the matters here. As per law, we are to presume that all accused are innocent unless they are proved guilty however offenses under POCSO still remain non-bailable.

If the accused applies for bail here many factors are given consideration like- the gravity of the crime committed, if the offender has been charged with same allegations before, how does this act impact the society, in case of a female if the girl is pregnant or if she is even below the age of 12 and most importantly the position of the offender in the family i.e. considering if he is a bread-winner or not.

The court has an open discretion to either grant or deny the bail following the guidelines of the act.

The person applying for bail must be aware that bail under POCSO cannot be granted at the level of police but only by hearing of the special court assigned.

 

Also Read- APPLY FOR BAIL BUT WHEN AND HOW?

Going over the recent judgment of the Kerala High Court, they successfully granted an anticipatory bail to a 38 year old for inappropriately touching his own son on the promise that the accused will cooperate with the investigation without any fail.

As reported in the recent judgments in the past 3 years many alleged offenders under POCSO have been granted bail pertaining to the fact that there have been reported false accusations in the past.

 

Considering that there has been a success rate in the granting of bail, if an accused has evidence enough to prove his innocence he shall file for bail at a special court.

Also Read- ANTICIPATORY BAIL FROM HIGH COURT

In conclusion, it is important for the public to know that sexual offences on children are being given high importance by the law, such matters where can get emotionally straining yet must be dealt by the families of the victim with strength especially now that there are special provisions for dealing with them in order to achieve justice.

 

This post is written by Jagriti Mahajan of Kurukshetra University (KU, 2021) Batch. For more info on subject, please dial 99888-17966.

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