The country's most effective piece of pro-child legislation, the Protection of Children from Sexual Offences (POCSO) Act, 2012, does not seem powerful enough to deter Kerala's child molesters. Only 18 per cent of the 2700-odd POCSO cases filed every year in the state reach the conviction stage.
In comparison, according to figures put out by the National Crime Records Bureau in 2016, the state has a conviction rate of 84.6 per cent for crimes under the Indian Penal Code.
The low conviction rate of POCSO cases, when read along with the poor conviction rate of crimes against women, suggest a trend. The state is not fair to the vulnerable sections. In the case of women, the state's conviction rate is an embarrassing 10.2 per cent; the national average is 17 per cent. It is a good sign that the state has not taken comfort in the fact the national average for POCSO conviction is less than 10 per cent.
The low conviction rate had sufficiently shocked the police department to initiate a review into the POCSO cases in the state.
A comprehensive study carried out by a team led by crime branch IG S Sreejith has detected several systemic flaws. Right from the language used in the first information report and the interrogation process to the attitude of the investigating officers and their untrained minds have come under the scanner.
Role of first informant
The first information of a POCSO case is normally received by the police from teachers or school authorities. The police may receive the information directly from the teacher or through the district child welfare committee. But, the Sreejith study found that most of the time the police record the statement of the victim or the parent, and register the case on the strength of such a statement without relying on the statement of the initial informant, which would be the teacher or a school authority.
Even a statement under Section 161 of the Criminal Procedure Code, which mandates the investigation officer to orally examine any person acquainted with the facts of the case, is not seen recorded during the course of investigation. There is every possibility that the parent or relative of the victim will subsequently turn hostile especially if the accused is a relative of the victim. “We have found that in more than 90 per cent of the cases, the accused is known to the victim, someone in custodial capacity like father or step-father or grandfather or uncle or sports coach or even a neighbour,” Sreejith said. “Therefore, there will be a tendency, either out of a false sense of shame or commitment, to hush up the case. This is why we feel the initial informant's statement would be very helpful,” he added.
It has also been seen that most of the POCSO cases end up in acquittal on account of the victims or their immediate support system turning hostile. On paper there are liaison officers who are supposed to keep the victims insulated from the wily schemes of the accused. The study found that the officers are not posted in most of the cases. Even a few on the field are not properly trained.
Punishment by imposition
It has been found that during the investigation the statement of a POCSO victim is recorded by various officers like woman police officer, Childline personnel, doctor and magistrate, who takes down the statement under Section 164 of the CrPC. This causes the victim to answer the same questions multiple times. It is as if the child has been asked to do an imposition, and this adds to the mental agony of the victim.
To avoid this, the report has suggested that as far as possible all the officials concerned interview the victim in one sitting and prepare their statements. This will also avoid contradictions in various statements provided by the victim, which the defendants use to get the charges against them nullified.
Language of the child
Under the POCSO Act, the statement of the victim has 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. Wherever possible, the statement should also be recorded, either as audio or video. It has been found that the report of the medical examination or the statement recorded by the police, in many cases, contradict the first information statement given by the victim. This will undermine the credibility of the first information statement.
This is because the police or the competent medical officer employ their own means of questioning the child. It is their language that gets into the statement of the victim. In some cases, the first information statement has been recorded in question-answer form. “The inherent danger in this form of FIR is the possibility of asking leading questions. This has to be avoided for successful prosecution,” the IG said.
Lazy investigation
It was also found that the investigating officers mostly hesitated to go beyond the limits of the statement recorded by the magistrate under Section 164 of CrPC. It was felt that this hesitation, this laziness, stood in the way of truth. The report stated that this was not in the best interests of justice.
Sreejith said if the investigating officers are reluctant to go beyond the 164 statement, they might not be able to check the misuse of POSCO Act. A sizeable percentage of POCSO cases were initiated for settling family disputes and for settling political or personal scores. So the truth lies beyond the 164 statement, which could have been used solely as a tool of revenge. Last year, the High Court had also warned of rampant misuse of POCSO Act.
Procedural hassles
A circular issued in 2017 has stated that no case registered under POSCO Act & Rules shall be chargesheeted or referred without the approval of the range IG. In certain situations, the non-availability of IG delays the filing of charge-sheet. After Sreejith submitted his report, the powers of the IG to accord sanction for filing the chargesheet in a POCSO case has been delegated to the district police chief concerned. Nonetheless, the concurrence of the range IG has to be immediately obtained by the DPC.
Weak infrastructure
The criminal procedure code mandates that filing of final report should be done within three months. Accordingly, the trial court is duty bound to complete the trial proceedings within one year of taking cognizance of the case. But for this to happen, there has to be special courts.
So far POCSO special courts have been established in just three districts: Thiruvananthapuram, Ernakulam and Kozhikode.
