‘Every Sentence is Pronounced with Patience and Caution’: A Judge on the Gaps in POCSO Cases

By Amarpal Singh Verma

Jaipur, Rajasthan: A few years ago, retired justice Ratanlal Mund presided over a case where a man was accused of impregnating his minor daughter. The allegation, made by his wife, led to his arrest under the Protection of Children from Sexual Offences Act. But the Forensic Science Laboratory report later revealed that he was not the biological father of the foetus, and the real culprit could not be found.

“Had the police investigated the matter properly in the beginning, the real culprit would not have escaped,” said Mund, a retired special judge in the POCSO court in Rajasthan. “If the blood samples of suspects, neighbours and people who were in contact with the girl were taken and sent for DNA testing at that time, a case could have been made out later.”

Mund told 101Reporters that the case illustrated how delays and lapses at the investigation stage can derail justice and how the judge has to be watchful while dealing with sensitive cases under the POCSO Act.

“From the very first day a first information report reaches the POCSO court, the judge has to be on a watch,” he said. “If there are shortcomings, instructions to address them should be given to the police officer concerned. And while accepting the chargesheet, care must be taken that no evidence is excluded, and the FIR should be checked for its content.”

Mund became a judicial officer in 1996 and later served as a POCSO judge in Ajmer and Merta City for five-and-a-half years. He held various positions, including that of civil judge, judicial magistrate, additional chief judicial magistrate, chief judicial magistrate, additional district judge and family court judge at 15 locations in the state.

Explaining the functioning of courts established exclusively to deal with cases under the Act, he said that the first response in such instances is to conduct the victim’s medical examination.

“Following proper procedure is very important. The doctor has to seal the clothes themselves before sending them to the forensic science laboratory. But sometimes care is not taken. The station house officer takes the clothes and keeps them in the police station for a long time before they are sent for investigation.”

He also said statements under Section 164 of the Criminal Procedure Code should be recorded within 24 hours. “However, they are not always recorded. There could also be an attempt to change the girl’s statement so that the accused gets bail. Later, under pressure, the parents also often change their statements in court. In such cases, the court cannot do anything even if it wants to.”

Delhi High Court advocate Shiv Kumar Yadav said many cases collapse because families themselves resist filing complaints when the accused is a close relative. Delays in registering FIRs weaken evidence and complicate prosecution.

Priyanka (name changed), from a small district village in Uttar Pradesh, was a minor in September 2022 and working part-time at a marriage hall reception. The manager allegedly tried to force himself on her. When she resisted, he offered her money and later raped her at knifepoint. She spent ten days going to the police station before the FIR was finally registered.

Since then, she has been attending court hearings for two years. The accused is out on bail. Her education and job prospects were disrupted. Her lawyer said the police initially pressured the family to “settle the matter”. Relatives also visited her home and the police station, urging compromise. The FIR was registered only because the girl insisted on pursuing the case.

About instances where child victims change their statements out of fear or under pressure, he said, “Such cases are only 10 to 15%. Often, the investigating agency or the cooperating agency comes under some pressure. Legally and morally, this should not be done.” He added that POCSO courts see more cases related to girls from economically and socially weaker sections, and some families are unable to report incidents due to pressure.

In another case, a four-year-old child was abused repeatedly by school staff. Six years later, when she was brought to identify the accused, their appearance had changed, and the teachers were not present; only the gatekeeper and cleaner. The child could not identify them. They were granted bail. The case continues.

Instances of negligence by police officers and doctors have also surfaced. In a POCSO case in Chittorgarh, there was a contradiction between the doctor’s report and the statement given in court. Even then, the judge sentenced the accused to 20 years of imprisonment. In cases against negligent officers, courts often pass orders directing higher authorities to take action. However, action is taken only in very few cases.

According to Mund, many cases come up where people were falsely implicated, and evidence was fabricated. Though courts write to the departments concerned to act against erring officers, action was taken only in very few cases. “In most cases, after a cursory investigation, the file is closed, saying that the officer concerned is not at fault. This process is not very effective,” he noted.

See Also: Fear and Loathing in Lower Courts: The Bail Edition

A system under backlog

The challenges described by Mund are not limited to Rajasthan. A 2023 report by the National Crime Records Bureau found that India faces a shortage of forensic science laboratories and experts, affecting the timely disposal of sexual offence cases. While the Union government has announced new regional FSLs under the Nirbhaya Fund, implementation remains uneven.

According to data cited in the Indian Child Protection Fund’s report ‘Justice Awaits’, as of January 2023, 2,43,237 POCSO cases were pending across India. Only three per cent of cases ended in conviction in 2022. Special POCSO courts were mandated to dispose of at least 165 cases a year, but on average, only 28 cases are resolved annually.

The report estimates that even if no new cases are registered, it would take nine years to clear the existing backlog nationally. Based on pending cases as of 2023, Delhi would take 27 years to clear its backlog, Bihar 26 years, West Bengal 25 years, and Uttar Pradesh 22 years.

In a response in the Lok Sabha, the Ministry of Law and Justice stated that 2,02,175 POCSO cases were pending in fast-track courts as of December 31, 2023. Uttar Pradesh had the highest number at 84,778.

Earlier, in response to a question in the Rajya Sabha, Union minister Kiren Rijiju said that pending POCSO cases in Uttar Pradesh rose from 28,199 in December 2020 to 67,615 in December 2022. Across the country, the number rose from 1,70,271 in December 2020 to 2,47,766 in December 2022.

"A Decade of POCSO" by the Vidhi Centre for Legal Policy's JALDI initiative analysed over 2.3 lakh cases to find that 43.44% of accused persons in POCSO cases are acquitted for various reasons, while only 14.03% result in conviction.

Jaya Sharma, program head at Child Rights and You, said families often delay filing complaints due to fear of public shame. “Consequently, the case weakens due to a lack of evidence.” She added that when the accused is a close relative, social and economic pressures complicate proceedings further.

Sangita Sharma of Child Line said delays occur at multiple stages: from filing the FIR to photography, videography and documentation. “Important evidence is often lost during this process. Consequently, cases linger for years.”

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Complex cases and accountability

Mund said some cases also involve false implication. “All laws have their strengths and flaws. The beauty is that they give justice to victims. The drawback is that bogus lawsuits tend to be filed. Laws related to dowry, Scheduled Castes/Tribes and domestic violence have been misused a lot.” “In POCSO cases, witness statements should be analysed with caution,” he said.

He added that cases involving adolescents require careful scrutiny. “There is no question of leniency in cases of children under 12 years of age. Where children in the 12 to 16 age group are involved, decisions are taken on a case-by-case basis. In cases above 16 years of age, it has been observed that girls sometimes change their statements if there is a love affair. They may also give statements under pressure from family members. So, a decision has to be reached accordingly.”

Recently, the Delhi High Court ruled that women could also be prosecuted under the POCSO Act for penetrative sexual assault and aggravated penetrative sexual assault. Asked if a case of sexual assault on children ever came against a woman in his court, Mund said he had come across many cases in which women have also been the accused. “The POCSO Act is gender neutral,” he reminded.

The Punjab and Haryana High Court recently upheld that the charge of rape by a minor does not end by marrying a minor. On such cases, Mund said, “I have never had such a case. The law has no intention of justifying a wrong and pardoning a criminal. The crime happened once. We cannot forgive the accused in the name of any subsequent action. There is no such provision in the law. If a man's wife is below 15 years of age and he has physical relations with her, then a case of rape can be filed against him. He can be forgiven to some extent only on the ground that he is the husband of the victim.”

On the role of prosecution, he said the evidence collected must be presented sequentially and a summons issued promptly. FSL reports should be ordered without delay. “This helps a lot.”

Noting that conviction rates remain low, Mund said this could reflect weaknesses in investigation. “Instead of conducting a smooth investigation and collecting strong evidence, some officers want to somehow present the chargesheet in the court.”

He said that in some instances, cases may also be registered out of revenge or other reasons, while in others, investigating agencies may not be adequately trained to deal with the law. Although the court keeps supervising, agencies still do not receive sufficient training to collect every piece of evidence and present it effectively. As a result, many accused are acquitted.

Referring to a rape and murder case in Ajmer in which he awarded the death penalty within four months, Mund said the decision required careful study of Supreme Court precedents and the circumstances of the crime. “Every aspect of the law, the circumstances of the crime and the decisions given by the Supreme Court in cases of the death penalty had to be studied. How the incident shocked society and what message it sent to society had to be analysed.”

He said that there is a “golden principle” of criminal justice. “Even if 10 guilty people are spared, not one innocent person should be punished.”

With inputs from Mithilesh Dhar

This story was produced for and originally published as part of the Crime and Punishment project in collaboration with Vidhi Centre for Legal Policy.

This article was originally published in 101 Reporters under Creative Common license. Read the original article.

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