Manoj Bajpayee-starrer, ‘Sirf Ek Bandaa Kaafi Hai’, recently released on Zee 5. The movie is based on the story of self-proclaimed godman, Asaram Bapu, who was convicted in a case involving the rape of a minor girl. Apart from charges filed under the Indian Penal Code (IPC) for rape and criminal intimidation, Asaram was also charged under section 8 of the Protection of Children from Sexual Offences (POCSO) Act, 2012. In addition to criminalizing sexual offences committed against children, the POCSO law also mandates procedures at various stages of investigation and trial in a POCSO case to ensure that the proceedings are carried out in a manner conducive to the child.
While the film is a powerful reminder of how pervasive sexual offences against children are in society and the role of law in bringing the perpetrators to account, it is also interesting to examine certain nuances in the POCSO law as depicted in the film. This article analyses the film from the perspective of the POCSO law, especially the procedure mandated under the POCSO Act to be followed with respect to conducting investigation and trial in a POCSO case.
1. Whether medical examination of the child may be done before filing an FIR?
The first scene of the film shows Nu (the victim) approach the police with her parents to register a complaint of rape, where the police decide to conduct a medical examination before registering the complaint. Later, the lawyer for Baba (the defendant) argued before the POCSO court that under the law, the medical examination of the victim should have been done after registering a police complaint. PC Solanki (the victim’s lawyer, played by Manoj Bajpayee) responds that section 27 of the POCSO Act permits the medical examination of the child before filing of the FIR in the presence of a woman police officer and the child’s relative.
What the law says- Under section 27(1) of the POCSO Act, the medical examination of the child may be conducted even in cases where a First Information Report (FIR) or complaint has not yet been filed.
2. Whether statements made by the child may be recorded before the Magistrate?
In the film, the prosecution refers to a 94-page statement made by the victim before the Magistrate.
What the law says- Under section 24 of the POCSO Act, the statement of the child shall be recorded at the child’s residence or where the child usually resides or at the place of the child’s choice and as far as practicable by a woman police officer not below the rank of sub-inspector. It is also mandatory for the police officer recording such a statement to ensure inter alia that the child does not come in contact with the accused at any point. Another provision in the POCSO Act, namely, section 25 envisages the recording of statement of a child by the Magistrate. The statement under section 25 is to be recorded as spoken by the child in the presence of the parents of the child or any other person in whom the child has trust or confidence. Ordinarily, under section 164 of Code of Criminal Procedure, 1973 (CrPC), recording of confessions and statements by the Magistrate is done in the presence of the advocate of the person accused of an offence. However, this does not apply to a POCSO case, and the advocate of the accused is not permitted to be present when the statement of the child is being recorded by the Magistrate (proviso to section 25 of the POCSO Act).
Therefore, under section 25, the statement of a child may be recorded before a Magistrate.
3. Whether the act of touching the private parts of a child is sufficient to constitute rape (penetrative sexual assault) under the POCSO Act?
In the film, PC Solanki argues that under the POCSO Act, the sole act of touching the private parts of a child is sufficient to constitute rape under the POCSO Act without the act of penetration.
What the law says- The POCSO Act does not use the term, ‘rape’, and instead uses the phrase ‘penetrative sexual assault’ to refer to a wide range of acts which involves penetrating in any manner into the vagina, urethra, anus, mouth or any other part of body of the child (section 3 of the POCSO Act). Additionally, penetrative sexual assault also covers the act of a person applying his mouth to the penis, vagina, anus, urethra of the child or making the child do so to such person or any other person.
The facts of the POCSO case in the film do not refer to penetration by the defendant. What is known from the victim’s testimony is that the defendant touched the private parts of the victim. This would fall under section 7 of the POCSO Act which states, ‘whoever, with sexual intent touches the vagina, penis, anus or breast of the child […] or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault’. [Emphasis supplied]. Therefore, the act of touching the private parts of a child will by itself constitute the offence of sexual assault, and not rape (rape is understood as penetrative sexual assault under POCSO).
Crucially, section 9 of the POCSO Act defines ‘aggravated sexual assault’ which covers cases where the person committing the sexual assault is in a position of trust or authority with respect to the child. The sections relevant in this case are section 9(f) (sexual assault by the management or staff of an educational/religious institution on a child of that institution) and section 9(o) (sexual assault by the owner/manager/staff of any institution providing services to that child). In the film, Nu is studying in a school established by the defendant and therefore, the defendant can be charged with aggravated sexual assault in this case.
4. Whether the accused may be present in the court at the time that the child is testifying?
At all times when Nu is testifying in the court, the accused is also present, although behind a curtain/screen and can ostensibly not be seen by the victim.
What the law says- Under section 36(1) of the POCSO Act, the Special Court shall ensure that the child is not exposed in any way to the accused at the time of recording of the evidence, while at the same time ensuring that accused is in a position to hear the statement of the child and communicate with his advocate. In order to implement section 36(1), Clause 2 of section 36 gives discretion to the Special Court to record the statement of the child through video conferencing or by utilizing single visibility mirrors or curtains or any other device.
Therefore, the accused has a right to hear the statement of the child during the child’s testimony in court, without the child being exposed to the accused at any time.
5. Whether the counsel for the accused may question the child during examination-in-chief, cross-examination or re-examination of the child?
In the film, the counsel for the accused repeatedly questions Nu on the allegations made by her against the defendant. The defense counsel also hints that Nu has a boyfriend, on account of which her academic performance dropped in school.
What the law says- Under section 33(2) of the POCSO Act, the Special Public Prosecutor or the counsel for the accused shall (during examination-in-chief, cross examination or re-examination of the child) communicate the questions to be put to the child to the Special Court which in turn shall put those questions to the child. Further, under section 33(6), the Special Court shall not permit aggressive questioning or character assassination of the child and ensure that the dignity of the child is maintained at all times during the trial.
Therefore, the counsel for the accused may not directly question the child during examination-in-chief, cross-examination or re-examination of the child, and instead put those questions to the Special Court. Further, aggressive questioning or character assassination of the child is not permitted.
This blog draws on helpful deliberations which the author had with POCSO Torchbearers. To become a POCSO Torchbearer, please contact VLegal.