By Tashmayee Sarkhel
Published on: 01st August 2022 at 20:58 IST
The article contains the detail of the POCSO (Protection of Children from Sexual Offenses Act) case about Shiv Shankar Baba. It also contains the background of the case and briefly about the act.
POCSO Act (Protection of Children from Sexual Offences Act), 2012[1] is a comprehensive law that is enacted to protect children from a slew of sexual offenses like sexual assault, sexual harassment, and pornography while safeguarding the interest of the children at every stage of the judicial process by introducing a child-friendly mechanism for reporting, recording of evidence, investigation and speedy trial of offenses through special courts.
The case revolves around Shiv Shankar Baba, who is the founder of Sushil Hari Private School in Kelambakkam, Chengalpattu district, who was arrested on a charge of sexual harassment of a student. He has faced six charges, including four POCSOs. The Chengalpattu Women’s Court heard the case.
POCSO (Protection of Children from Sexual Offenses Act):
The POCSO Act came into force on November 14, 2012. The act defines a child as any person below 18 years of age and defines different forms of sexual abuse including penetrative and non-penetrative assault as well as sexual harassment and pornography as per the POCSO Act the offenses are considered non-bailable offenses.
The POCSO Act is only applicable to child survivors and adult offenders. If by any chance children are in sexual relationships with each other or a child perpetrates a sexual offense on an adult, then the Juvenile Justice (Care and Protection of Children) Act, 2000[2], would be applied.
The POCSO Bill seeks to award strong punishment in cases of drugs being administered to children to bring about early sexual maturity. Punishment is provided under POCSO Act if the child is used for pornographic purposes under Section 9[3]. The accused is punishable under the act with an imprisonment of a minimum span of eight years, which can be extended to ten years along with a fine. The maximum rigorous punishment under the Act can be imprisonment for life and a fine. Indian Penal Code’s (IPC) Section 44 (1)[4] of the Special Children’s Law[5] provides that the National Commission for Child Rights (NCPCR)[6] along with the State Commission for Protection of Child Rights (SCPCR)[7] monitors the implementation of the provision of the Act.
As stated already that getting bail under POCSO Acts is not very high but there might be situations where the bail can be provided if no evidence is found against the accused. Section 5 and 6 of the POCSO Act[8] for getting a bail states that bail is the rule and jail is the exception as no under-trial accused can be kept in jail for an infinite span of years as he is said to be innocent until he is proven guilty.
The Act consists of 46 provisions that have increased the scope of reporting offenses against children, which was not covered under the penal code earlier. This includes aggravated penetrative sexual assault to include punishment for abuse by a person in a position of trust or authority including public servants, police, arm forces, management, or staff of an educational or religious institution.
The amendment of this act has brought changes in the punishment for penetrative sexual assault thereby increasing it from seven years to ten years. If also a child is below sixteen years of age the minimum punishment has been increased to 20 years. The Act has also strengthened the provision of countering child pornography as earlier punishment under the act was only provided for storing child pornography for commercial purposes. The amendment has brought into the act punishment for possessing pornographic material in any form which involves a child, even if the accused persons have failed to delete or destroy or report the same to share it. This amendment removes the words “communal or sectarian violence”, which had punishment for a person who sexually abused a child during such violence, instates of that the words have been replaced with “violence during any natural calamity or in a similar situation.”
This amendment was brought by the Union Women and Child Development Minister Smriti Irani after she came up with the report of the National Crime Records Bureau from 2016 where she indicated an increase in the number of registered cases under this Act. She thought that it was high time that there was a need to make severe rules or measures to turn aside the number of child sex abuse in the country by punishing the perpetrators thereby ensuring child safety.
Some silent features of POCSO can be stated as,
- It is gender-neutral.
- It makes the reporting of abuse mandatory.
- It makes the recording of sexual abuse mandatory.
- It least all known types of sexual offenses towards minors.
- It provides for the protection of minors during the judicial process.
Some listed provisions of POCSO are,
- Police officers must bring every case to the attention of the CWC within 24 hours of receiving a report.
- They must also be in plain clothes while recording the minor’s statement to not appear intimidating.
- The statement must be recorded in a place chosen by the minor, in the presence of a person that he or she trusts.
- The medico-legal examination for the collection of forensic evidence must be conducted only by a female doctor, in the presence of a person that the minor trust.
- Special courts have been set up to conduct the speedy, in-camera trials. These courts must ensure that: the minor is not exposed in any way to the accused during the recording of evidence, the minor’s identity is not disclosed at any time during the investigation or trial, and the minor is not made to repeat his or her testimony in court, and that he or she can give the testimony using a video link, the case is disposed within one year from the date of the offense being reported, the defense route all questions through the judge and is not allowed to aggressively asked them, an interpreter translator, special educator r any other expert is presenting court for the minor’s assistance, and compensation for medical treatment and rehabilitation is given to a minor who has been sexually abusing.
Some punishments listed under POCSO are,
- Penetrative sexual assault:
Penetration that is peno-vaginal, peno-oral, peno-urethral or peno-anal, fingering, or object penetration is punishable under the act. The punishment provided not less than seven years or might extend to life imprisonment and a fine (Section 4)[9].
- Aggravated penetrative sexual assault:
Committed by a person of trust or authority such as a police officer is punishable under this act and the punishment is not less than 10 years and might get extended to rigorous and a fine (Section 6)[10].
- Non-penetrative sexual assault:
Committed by whoever with sexual intent is also punishable under this Act if that person touches the vagina, penis, anus, or breast of such person or any other person, or does any other act with sexual intent which involve physical contact without penetration. The punishment is not less than three years and might get extended to five years and a fine (Section 10)[11].
- Aggravated non-penetrative sexual assault:
Committed by a person of trust or authority such as a police officer is punishable for not less than five years and might get extended to seven years and a fine (Section 10)[12].
- Sexual harassment:
Unwelcome sexual remarks, e-mails, telephone calls, taunting, jeering, demand or requests, or sexual favors are punishable by three years and a fine (Section 12)[13].
- Use of minors for pornography purposes:
Involving a child in the preparation production or distributing of pornography via print, electronic, computer, or any other technology is punishable by five years and a fine, and in the event of a second conviction for seven years and a fine (Section 14 (1))[14].
- Attempt of offense:
Under this, the person is punishable for one year and a fine (Section 18)[15].
- Abetment of offense:
To goad a person to commit an offense, conspiring to commit an offense intentionally adding an offense is punishable by one year and a fine (Section 17)[16].
- Failure to report an offense:
Under this, a person is punishable for six months and a fine (Section 21)[17].
Shiv Shankar Baba (28 January 1949):
Shiv Shankar Baba is a Hindu spiritual teacher from Tamil Nadu, India. He completed his studies at the University of Madras, did his further studies in chemistry, and post-graduation in the Chartered Institute of Logistics and Transport (London), the Indian Institute of Road Transport (Pune), and the Institute of Rail Transport (Delhi). He is also the founder of Sushil Hari International Residential School in Kelambakkam (Chennai).
He was arrested by CID (Criminal Investigation Department, India) for charges of sexually abusing girls’ offices in the founded School. He was arrested for this crime under the POCSO Act, 2012. After his arrest, a movement was fond to free him which included many of his supporters including film actor Shanmugaraja.
Case charges against Shiv Shankar Baba:
Previously he was arrested in three POCSO and sexual harassment cases filed by a student’s mother for sexually assaulting her and in one of the cases where the CB-CID police have filed a charge sheet against him. There was also a fresh charge sheet being filed against him for sexually harassing a student who is a former student of his founded school by the police.
The Madras High Court dismissed his two bail petitions in two of the three cases booked against him under the POCSO Act of 2012. Justice M. Dhandapani rejected both the petitions as he did not find any ground to enlarge the petitioner on bail. The judge was also informed that the crime branch criminal investigation department CB-CID had already filed a charge sheet against him in this case.
In this petition, he had claimed that he was not involved in the management of a private residential school at Kelambakkam near Chennai whose former students have complained to him after so many years of the incident. He even claimed that he only delivered guest lectures on spirituality and the Tamil language after being invited as a guest by the management of the school. He even stated that the complaint made by one of the accused who was a 21-year-old Bharatanatyam dancer who was forcefully hugged and kissed when she was back a student in 2018 and also when she visited the school for her performance after schooling, is only because she wants to gain “cheap popularity”. He even sought bail on health grounds stating that he is a heart patient and also a sufferer of various ailments.
Apart from all the grounds being brought into focus by him, he is not being held innocent but he is being held guilty under the POCSO Act, 2012, and hence getting his two bails getting dismissed by the judge of the Madras High Court.
Conclusion:
There have been a lot of criticisms that were made to the amended provision of the act which included the death penalty. It was also criticized by the NGOs working with children as well as the latest National Crime Records Bureau’s Crime in India report 2016 stated that approximately 94% of the victims under the POCSO Act are known to the suspect which may help them to pressurize them to not to file a complaint against them thereby threatening them of death threats.
Nevertheless, POCSO Act is said to be and is also considered in reality that it forms to be one of the important Acts under the supreme rule of the land as it aims at securing the children from sexual offenses which affect them crucially and should be abandoned from the society completely regardless of the flaws being associated with it.
Reference:
- POCSO Act (Protection of Children from Sexual Offences Act), 2012 ↑
- Juvenile Justice (Care and Protection of Children) Act, 2000 ↑
- POCSO Act (Protection of Children from Sexual Offences Act), 2012, s.9 ↑
- Indian Penal Code’s (IPC), s.44 (1) ↑
- Indian Penal Code’s (IPC) s. 44 (1) of the special children’s law ↑
- National Commission for Child Rights (NCPCR) ↑
- Protection of Child Rights (SCPCR) ↑
- Protection of Children from Sexual Offences Act (POCSO), s.5 and 6 ↑
- Protection of Children from Sexual Offences Act (POCSO), s. 4 ↑
- Protection of Children from Sexual Offences Act (POCSO), s. 6 ↑
- Protection of Children from Sexual Offences Act (POCSO), s. 10 ↑
- Protection of Children from Sexual Offences Act (POCSO), s. 10 ↑
- Protection of Children from Sexual Offences Act (POCSO), s. 12 ↑
- Protection of Children from Sexual Offences Act (POCSO), s. 14, ss.1 ↑
- Protection of Children from Sexual Offences Act (POCSO), s. 18 ↑
- Protection of Children from Sexual Offences Act (POCSO), s. 17 ↑
- Protection of Children from Sexual Offences Act (POCSO), s. 21 ↑