This article is written by Vandana Shrivastava, from the Institute of Law, Nirma University, Ahmedabad. This article gives a brief introduction to the POCSO Act and lays down the procedure for remand under the POCSO Act.

Introduction

Law is perpetually evolving by nature. As society advances and undergoes a cultural and developmental transformation, old laws become obsolete or develop a need for modification. Protection of Children from Sexual Offences (POCSO) Act is an example of one such law that was created out of need. In every society, the protection of children is of utmost importance because they are the future and the continuation of the human race resides in them. Crimes against children are different from the crimes against adults because of their tender age and innocence.

This article gives a brief illustration of the creation of POCSO, its features and an extensive explanation of the procedure for remand for commission of crimes that are specified under the POCSO. While reading this article, it is necessary to remember that POCSO is not an entirely separate statute. It is inspired by the Indian Penal Code, 1860 (IPC). While the IPC lays down general provisions against sexual offences, POCSO especially provides remedies against offences where children are victims. The procedure of all criminal offences is specified under the Code of Criminal Procedure, 1973 (CrPC). It could be called incomplete, but the POCSO Act lacks the description of the entire procedure to be followed. This article lays down the procedure to be followed on situations underlying remand, which the POCSO Act is silent on.

POCSO

Prior to 2012, the offences against children were enshrined in the IPC and the procedure of trial was enshrined in the CrPC. There were several loopholes with regard to the protection of children under the IPC, with the most significant one being that only women are protected from sexual offences under the IPC. This led to the exclusion of children belonging to other genders from legal protection. Further, Article 15 of the Indian Constitution prohibits discrimination of any sort and provides for the enactment of special provisions for children under clause 3. Owing to this, a special provision, whilst considering the interests and safety of children had to be made.

The POCSO Act was established in 2012 to protect minors falling prey to sexual abuse. Commission of sexual offences against children is easy because the offender can easily threaten them. In the majority of the cases of sexual assault against children, they often resist from sharing the details of the incident from their parents and guardians out of fear and trauma. Given the vulnerable nature of children in general, POCSO was and is the need of the hour. Childhood trauma sometimes stays with children for their lifetime. Under the IPC, even when the police arrest a child for the commission of a crime, the same is done with the utmost care, with the intent to avoid traumatising the child accused.

Herein, where a child is a victim, it is necessary to make them feel as safe as possible. General provisions of the IPC cannot be applied. For this purpose, the POCSO Act provides for a Special Court under Section 28. It not only carries a child-friendly approach but also ensures speedy trial of the case so that there is no delay in seeking justice.

Background for remand 

The POCSO Act posits a child as someone who is below 18 years of age, physically. Section 42A of POCSO Act states that the Act cannot be in derogation of other laws in force. In case of any inconsistency, the provisions of this Act will overrule the other law to the extent of such inconsistency. This implies that the POCSO Act will outpower the CrPC to the extent that it provides the procedure for trial. 

Chapter V of the Act deals with the ‘Procedure for reporting of cases’. Section 19 of the Act mandates any person who believes or has knowledge of the commission of an offence to provide such information to:

1. The Special Juvenile Police Unit; or
2. The Local Police.

Section 19(6) obliges the Juvenile Police Unit or the Local Police to report the matter to a Special Court and in its absence, to a Sessions Court within 24 hours.

Remand procedure

The Act provides for filing of the complaint and taking of cognizance. It, however, fails to establish the procedure for remand of the accused. In the absence of special provisions, the procedure for remand specified under the CrPC will be followed. It is as under:

The 24-hour remand

Section 57 of the CrPC states that an arrested person shall be produced before the nearest magistrate within 24 hours of the arrest without any exception to the same. It prohibits police officers to keep a person in custody, surpassing the reasonable period under the prevailing circumstances. This section is in accordance with Article 22 of the Indian Constitution, which also mandates the presence of an arrested or detained accused in front of the nearest Judicial Magistrate within 24 hours. The period of detention could only be extended when the Magistrate grants special permission for the same. However, since the cases concerning POCSO Act are tried by a Special Court, the word ‘Special Court’ will be used instead of the word ‘Magistrate’ on the provisions which the POCSO is silent on.

Extension of the remand period

Section 4(2) of the CrPC states that offences provided under other laws will also be dealt with under the Code. The same is, however, subject to special provisions under other statutes. Section 5 of the Code serves as a saving clause for the previous section by stating that the Code will not overrule special provisions. Sections 56, 57 and 167 of the Code are in accordance with the above-mentioned provisions, owing to the non-explanatory character of POCSO Act on remand/detention. The said provisions of the CrPC shall apply.

Section 56 delegates a duty to the police officer to send or take a person who is arrested without a warrant to a Magistrate having jurisdiction or to the officer in charge of a police station.  Section 57 states that the period of custody cannot extend more than 24 hours. Section 167 of the CrPC states that the officer in charge of the police station or the investigating officer (IO) shall transmit a copy of the entries in the diary to the Special Court when it appears to him/her that the investigation cannot be completed within 24 hours and there are sufficient grounds to believe that the information is well-founded. While doing so, the police officer or the IO has the duty to forward the accused person to the hon’ble judge who is trying the case. The Special Judge may order the detention of the accused as he deems fit. Such period of detention shall not exceed 15 days.  

There are several exceptions to the 15-day remand clause. According to Section 167(2)(a), a Magistrate, in this case, a Special Judge, has the power to extend the detention period in the following manner:

1. Detention of not more than 90 days when the alleged offence is punishable with imprisonment for 10 years, or for life, or is punishable with death.
2. A period of not more than 60 days for other offences. After the concerned period of detention is over, it is mandatory to give bail to the accused person.

Case Laws

In the case of the State through Central Bureau of Investigation v. Arul Kumar, the Supreme Court held that Section 5 of the CrPC empowers the Special Judge to take cognizance of an offence without the committal of the accused. This provision is a waiver of the mandatory requirement under Section 193 of the CrPC, which restricts the Sessions Court from taking cognizance of an offence under original jurisdiction unless the same is committed by a Magistrate. The section does not, however, prohibit the Magistrate from taking cognizance. Therefore, the Special Judge will have two options; to either take cognizance of the offences straightaway or to have the same committed through a Magistrate. Section 190 of the CrPC illustrates the normal procedure, wherein the Magistrate is empowered to take cognizance of offences triable by the Sessions Court and is not given a go-bye. The Special Judge has both the alternatives. In cases when the charge-sheet is filed before a Magistrate, the Magistrate will have to commit the same to the Special Judge.

The Supreme Court, in the State of T.N. v. Krishnaswami Naidu, made certain elongated observations with regard to remand under Section 167 of the CrPC which shall also be applicable under cases concerning POCSO. While examining Section 167, the court favoured the contention that the phrase ‘Magistrate having jurisdiction’ would not be applicable on a Special Judge who has the jurisdiction to try the POCSO case. The issue, in this case, was whether the absence of the term ‘Special Judge’ from Section 167 of the CrPC would exclude a Special Judge from having the same powers as a Magistrate. 

Section 173 of the CrPC lays down that on completion of the investigation, it is the duty of the officer in charge of the police station to forward the investigation report to a Magistrate empowered to take cognizance of the alleged offence. Under Section 8 of the Criminal Law (Amendment) Act of 1958, a Special Judge is empowered to take cognizance of the offence without the committal of the accused person. This proves that the Special Judge is not a Sessions Judge since Section 193 of the CrPC prohibits any Sessions Judge from taking cognizance of an offence as the Court of original jurisdiction unless a Magistrate commits the case to him. Further, the court stated that the Criminal Law Amendment Act is established for a speedy trial of specific offences. For this reason, the Act was never intended to have a complete procedure. To the extent that the provisions of the CrPC are not inconsistent with or are not overlapped by a special provision, they will not be excluded.

Forbidding a Special Judge from exercising the power of remand or bail on an accused before him whilst empowering him to take cognizance would lead to an anomalous situation. If the Special Judge is not given the same powers as a Magistrate having jurisdiction in the matter, he would not have the authority to extend the remand period or release the accused on bail after keeping the accused in custody for 15 days at most. Furthermore, if the Special Judge is not granted with the Magistrate’s jurisdictional powers, the charge-sheet under Section 173 of the CrPC would not be submitted to him. Section 32 of the General Clauses Act defines a Magistrate as any person who exercises all or any of the powers of the Magistrate as laid down under the CrPC. Section 3 of the CrPC also indicated that when the context requires, the word ‘Magistrate’ may include such Magistrates who are not specified under the said section. When the definition of Magistrate is read with the General Clauses Act provision, it could be deduced that the Special Judge is regarded as a Magistrate for the purpose of Section 167 of the Code.

Conclusion

The POCSO Act is a specific provision for the safeguarding of children. While the establishment of the POCSO Act is commendable, it needs constant amendments, given that it is concerned with a delicate issue. The absence of remand procedure cannot be tagged as a loophole in the statute since it is largely a substantive law, with only such procedural provisions that are not laid down in the CrPC. With the POCSO Act, the lawmakers made a commendable contribution making sexual assault/abuse laws gender-neutral. This will stretch the applicability to all minor victims regardless of their gender. 

However, sexual assault is not the only criminal offence that could devastate a child. The need of the hour is an altogether separate statute for minors in general, to protect them and their interests with the gradual escalation of toxicity in the society. The POCSO Act is one of the many laws that are needed in the contemporary world.

References

• http://www.legalserviceindia.com/legal/article-573-remand-by-a-judicial-magistrate-if-investigation-is-not-completed-within-24-hrs.html.
• https://www.latestlaws.com/wp-content/uploads/2016/10/Appropriate-procedure-for-remand-of-accused-under-Protection-of-Children.pdf. 

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