Neha Maria Antony, 3rd Year, The National University of Advanced Legal Studies
The Protection of Children from Sexual Offences Act, 2012 (POCSO) is a legislation that was brought out as an answer to a dire call from a society that was reeling from an ever-increasing rate of heinous crimes against young children. The very future of the country was being choked in fear of such crimes, where a child, at a time when they should be learning and playing, are reduced to mere objects for satisfying the lust of perverted minds.
The enactment has seen success in many regards. The Act was primarily established for the purpose of protecting children from offenses like sexual assault, sexual harassment, pornography and so on which severely threaten and destroy the safety and wellbeing of the child. The Act recognizes these crimes as vile and heinous and aims to address them effectively using the law. In pursuance of the same, it purports to establish Special Courts for the trial of such offenses. While there are several issues attributed to the Act, there is no doubt that the Act has recognized the depravity of such offenses and brought a separate legal pathway for the victims who are young children and might be intimidated and further traumatized by the tedious and long drawn out judicial process that ensues.
There are several features of the Act including its detailed and categorical classification of offenses, the apt punishments, recognition of the menace of child pornography, the establishment of Special Courts for trying POCSO cases, other infrastructure, procedural safeguards to ensure justice and to protect the interests of the child victim and so on. These deserve much appreciation. Though we may wish for a utopian world where children are happy and free without any such threats to their innocent smiles, the reality is much harsher. And in this bleak reality, the Act does create a piece of solid legal machinery to deter criminals and bring the perpetrators before the hand of justice.
Despite all of this, there are situations when the legislation is blatantly misused. This paper focuses on one such misuse of the POCSO Act. Over the many cases that have traversed the Courts under the aegis of POCSO, it is noted that in many situations, the children are made to raise false allegations, leading to false complaints being filed against innocent people who are painted as heinous offenders and their names dragged through the mud. This is often done to exact revenge, to influence other cases like matrimonial disputes, property issues, and so on. There is no doubt that such allegations are an abuse of the very ideals of justice. However, there is no denial of the increasing cases where such happenings are noted. This is a crucial problem that threatens the sanctity of the Act itself.
It is pertinent to note that the possibility of false allegations being raised was also considered by the legislators and incorporated into the POCSO Act. Several provisions of the legislation stamp responsibility on the people to inform any apprehension or knowledge they may have about the commission of such an offense. It is to be noted that no person shall incur any liability, be it civil or criminal for giving any such information in good faith as provided under S 19. However, S 22 makes scope for punishment where false complaints or false information is given. A child in this regard is exempted. But a false complaint by any other, solely with the intention to humiliate, extort or threaten or defame, shall be punished with imprisonment up to six months or with fine or both. False information provided against a child or a false complaint, where such allegation is known to him to be false, thereby victimizing the child can face up to one-year imprisonment, fine, or both.
In a detailed analysis of cases before the Supreme Court of India and the Kerala High Court concerning POCSO, several such instances were noticed. In Samsher Singh Verma v State of Haryana[1], the Court considered the possibility that the allegation might be false and thus allowed for the accused to adduce evidence in the form of a recorded conversation which would possibly reveal that the complaint had been brought up just to subdue the accused in a property dispute.
In several cases, we find that an on-going matrimonial dispute might have prompted the parties to plaster false allegations on one another to get an advantage in the matrimonial spat. Some examples of this are- Jaseer Aboobaker v State of Kerala[2] where it was argued that the false allegations were made to influence the granting of visitation rights to the father. The Court opines that ‘serious allegations have been leveled for securing a favourable order in the petition for custody pending before the Family Court cannot be nonchalantly brushed aside.’ In Anu P. Kumar v State of Kerala[3] where it was alleged that the father had sexually assaulted his 15-year-old daughter, the allegation was countered by the accused as being false and fabricated in a plot to seek revenge by his wife with whom he was having a strained relationship owing to matrimonial disputes. Here, the Court takes into account the insubordinate delay in filing the case and several other facts and states that the delay of 19 months in registering the case is especially noted here and the HC, after a perusal of several SC judgements in this regard finds that ‘often than not, result in embellishments and exaggerations, which are the creations of afterthoughts. The delayed report, not only gets bereft of the advantages of spontaneity, but the danger of introduction of coloured versions exaggerated account of incidents or a concocted story as a result of deliberations and consultation also creeps in, which in turn would cast very serious doubts on the very veracity of the prosecution story.’ Another compelling case is that of Suhara and Ors. v Muhammed Jaleel[4] where the Court directly addresses this issue when it says -‘there is a growing tendency in the recent years to foist false crimes against the biological father alleging sexual abuse of own child misusing the provisions of the POCSO Act when the serious fight for custody of ward is pending resolution before the Family Courts.’ It thus urges much caution and detailed examination of the facts and circumstances to completely eliminate the possibility of a false allegation.
Let us consider the case of Varun Bansal v Vibha Bansal[5] where the parties had obtained a divorce and the mother had custody of their girl child. The father had visitation rights but had preferred a petition to seek overnight custody of the child. During the course of the case, the Court finds that the child was repeating whatever was taught to her by the mother. It seemed that the mother was intent on ensuring that the father didn’t get custody of the child alleging torture and harassment against him. The pitiful situation where parental indoctrination forces young children to see their own parents as their enemies are seen here. The Court holds that- ‘The parents only caretakers and they have no statutory right to have the custody of the child. The paramount consideration is the welfare of the child. It is up to the Court to protect the child's interest. The parents are not supposed to use the child for getting a win over others, especially to book POCSO cases against the father. In our view, the Court has to take much care in analysing the allegations raised against the father of the child.’ Similarly, in the case of Swarup Mohan v State of Kerala[6] where the alleged victim was the 13-year-old son of the accused and where the relationship between his parents was strained, the facts and circumstances raised a high probability that this was a false allegation made by making the child a tool in the hands of his mother who had her own ends to achieve as she wanted to live with her current partner in peace after obtaining the divorce. The Court sums it up thus- ‘the complaint is full of incongruities and embellishments. The long delay in setting the law in motion and the events that transpired in between persuades me to conclude that it would not be advisable to place explicit reliance on the statement of the victim. A case of false implication of the applicant cannot be ruled out.’
Children are taught by scheming adults to lie convincingly and to believe that they are indeed the victims of a heinous crime that never occurred. Ramlal N.R. v State of Kerala and Ors[7] was another case where a false complaint was registered against a school van driver where the facts itself combined with the statement of the eyewitnesses seemed to reveal the falsity of the allegation. When questioned by the Court as to the veracity of her complaint, the victim reveals that a police official had tutored her to alter her statement as her original statement (that the accused had hit her hand using his shoulder) would not have invited any punishment. The Court laments that the real victim in such cases where false allegations are raised are the alleged accused themselves. In Periyadinesh v State of Kerala and Ors[8] the accused argues that that the allegations so made were false and baseless and had been ‘made out of misunderstandings in the mind of the young child and that the parents of the child have now sworn to affidavits stating that the allegations are made out of misunderstandings and that they have no objections in the grant of bail to the petitioner, etc.’ Since this was a bail petition it is not discernable what the final outcome of the same might have been.
It seems to be a blatant abuse of law and of the innocence of young children and an act aimed at demeaning the very purpose of this legislation. However, we can see that Courts have taken a vigilant stance against this growing menace and have tried to weed out the possibility of false allegations without threatening justice due to the victim or the alleged perpetrator. But it still remains an urgent need to curb this detrimental practice. For one, harsher punishments may be prescribed for making false allegations that are raised based on pure malicious intent. This needs to be done with caution, however, as it might invariably end up discouraging the active reporting of such crimes. Further, Courts have to delve deep into the facts and circumstances and all the pertinent details concerning the alleged crime and the relationship between the concerned. The training manuals and handbooks as drawn up by the relevant authorities need to take this factor into the mind and develop holistic investigative or procedural safeguards to ensure that false allegations do not pass through the sieve of the law. Employing psychiatrists and other such professionals to discern the behaviour of the child and understand whether the child is speaking the truth or not might help in this regard. Educating judges and other legal professionals on the psychological basis of lying, common markers to identify lying, and effective methods of questioning and arriving at the truth are other ways by which we can ensure the same.
The misuse of even the most stringent legislation to meet one’s personal motives, mostly negative, has been an evident problem in our legal system. POCSO too has turned out to be no exception. But the very aim of the Act is to provide for a strong framework to deal with the menace of child sexual abuse and bring the perpetrators before the strong hand of justice. So long as the crime continues, the law must stay put. In the meanwhile, in order to ensure that the true meaning and purpose of the Act is not lost out through the blatant misuse of the same, measures have to be evolved and strictly implemented to completely eradicate the menace of false allegations and the disastrous consequences that flow from it.
References
[1] Criminal Appeal no 1525 of 2015 [2] MANU/KE/1930/2018 [3] MANU/KE/5705/2019 [4] Mat. Appeal. Nos. 182 and 198 of 2019 [5] MANU/KE/2857/2019 [6] Bail Appl. No. 7981 of 2018 [7] Crl. M.C. No. 5129 of 2019 (A) [8] Bail Appl. No. 6080 of 2019
(Disclaimer- The views expressed in this article are those of the authors and do not necessarily reflect the views or policies of Child Rights Centre.)