POCSO Act vis-a-vis Police and Doctors
(Protection of Children from Sexual Offences Act, 2012)

Keisam Pradipkumar *

Mass Rally protesting crime against women and children on June 29, 2013 :: Pix - Deepak Oinam

The POCSO Act, 2012 (Protection of Children from Sexual Offences Act, 2012), which came into effect from 14th November, 2012, may stand, perhaps the most significant gift ever given to the children of the country during UPA regime.

Sadly enough, the Act remained still in oblivion and unreached to many child victims of sexual offences. Till now some key stake holders, particularly police, doctors, CWCs are unable to execute their specific roles and responsibilities proactively as envisaged in the Act, in so doing care and protection assured in the Act, as undeniable rights of the child victims are ultimately deprived.

Unmistakable duties of police during the first 24 hours

Most specifically, the paramount role and duties of police need to be appreciated and streamlined, since police shall record and register the sexual offences (Penetrative or non Penetrative ) committed against the children under Protection of Children from Sexual Offences (POCSO) Act 2012, any negligence or lapses on the part of police will crop up with serious implications.

If the police fail to register a case under the Act timely, then the case will remain almost unreported and it will slowly but surely evaporate from public domain resulting in leaving the culprit scot-free while the survivor child is not provided with any kind of care and protection measures or justice. Could the police deny from record or register a complaint about sexual assault cases under the Act? is a relevant question .

Under the POCSO Act, the police as a bounded duty, need to record the complaint and assign an entry number to the information, read it over to the complainant/informant, enter the complaint in a book kept by the Police Unit {Section 19((2)}. So it is evident that Police cannot refuse to record or register of any such complaint. Because failure to record information relating to the commission of an offence or an apprehension that an offence is likely to be committed is punishable under the Act, with imprisonment which may extend upto 6 months or with fine or with both (Section 21).

As emergency duties of police which need to discharge within 24 hours of the report being registered i.e. registering an FIR, local police or Special Juvenile Police Unit (SJPU) shall, without unnecessary delay but within a period of 24 hours, report all the sexual assault cases to the concerned Child Welfare Committee and Special Court or where no Special Court has not been designated, to the Court of Sessions, including the need of the child for care and protection ad steps taken in this regards (Section 6).

It is the duty of the SJPU and Police to ensure that a victim child of sexual assault is taken to the nearest hospital (Government or Private which is the closer) or medical facility within 24 hours of the report being registered {Section 19 (5)}. The police should be aware the fact that the time frame for medical examination of a child is within 24 hours from the case is reported to the police. Therefore, the police should, either on one or another pretext, never try to delay in taking the child for a medical examination within 24 hours at any cost.

Should the child victim be produced before Child Welfare Committee (CWC) within 24 hours of report being registered is another matter which is frequently asked that confused both CWC and police. As per the Section 6 of the Act, it is clear that police has a mandatory duty to report all the sexual assault cases to CWC within 24 hours, but production of the child is not stated.

However, under Section 5 of the Act, if the SJPU/Police is convinced that the child is without any parental support or living with the abuser or potential abuser, or is in an institution, or homeless, the child victim must be produced within 24 hour before CWC. The SJPU/Police has to record the reason in writing as to why the child needs to be shifted and make immediate arrangement for care and protection. This may include admitting the child to hospital or shelter home within 24 hours of the report.

Duties of Hospitals or Doctors during the first 24 hours

A major problem being faced by victim party in the government hospitals in Manipur in regards to medical care and medical examination of the child sexual assault victims is that doctors usually refuse to give medical care and to conduct medical examination saying FIR is required prior to medical care and medical examination.

Hospitals and Doctors should know, it is now a crystal clear that Rule 5 (3) of the POCSO Rules categorically bars doctors or hospitals from demanding legal documents ( FIR etc.) before rendering medical care, and Section 27 of POCSO Act stated that medical examinations must be carried out even if an FIR or Complaint has not been registered.

In short, under the Act, any doctor or hospital now cannot insist on legal formalities to the victim’s party such as FIR or formal complaint to police about the sexual offence prior to the medical examination or emergency medical care of child victim.

Who can carry out the medical examination of child victim of sexual offence? And whether only the government hospitals can render emergency care - are imperative to understand. The medical examination is to be conducted by a Registered Medical practitioner (RMP) of a government hospital. In case a registered medical practitioner is not available at a government hospital only then doctors of a private hospital can also carry out the medical examination.

Unavailability of government doctors for conducting medical examination is frequently reported in the state, generally when the child victim is brought late at night. Here the option for private hospitals can also be considered. It is to be noted here that as per Section 357 C of Code of Criminal Procedure, the private hospitals have a duty to provide first aid or medical treatment to female rape victims or acid attacks in free of cost.

Since delay in medical examination may lose various evidences, an early medical examination within 24 hours must be ensured and for that matter, medical examination facility in government hospitals must be available round the clock on 24x7 service model. As Manipur is engulfed with HIV/AIDS epidemic and chances of infecting HIV virus to the child victim from the offender is fairly high, emergency medical care including administering of Post Exposure Prophylaxis is quite essential.