“Police cannot pre-judge at the stage of FIR whether the case is false”, says advocate and activist, Persis Sidhva.
ON June 9, the Mumbai Police issued a circular that mandated the approval of the Assistant Commissioner of Police and Deputy Commissioner of Police before filing a First Information Report (FIR) in a case falling under the Protection of Children from Sexual Offences (POCSO) Act, 2012. The city police instructed that crimes pertaining to molestation and sexual crimes under the POCSO Act can only be registered after recommendation from an officer of the rank of Assistant Commissioner of Police (ACP) and permission from a Deputy Commissioner of Police (DCP). The circular has come under criticism from the activists for ignoring the letter and spirit of the POCSO Act.
The Mumbai Police Commissioner, Sanjay Pandey, claimed that the circular was a consequence of the POCSO Act being ‘misused’ to address property disputes.
The National Commission for Protection of Child Rights and the State Commission for Protection of Child Rights, which function to assess and review the safeguards that are provided for child rights under existing law, have urged Pandey to withdraw the circular on the grounds that it is in violation of the law. Child rights activists and lawyers have also expressed concern regarding the impact of the circular on the rights of victims of sexual violence.
The POCSO Act is a special law that was passed to protect a child from offences of sexual assault, sexual harassment, and pornography. Section 21 (1) of the Act requires mandatory reporting and recording of offences defined under the Act. It provides punishment for failure to report the commission of an offence or the failure to record such a punishment.
S. 19 (6) of the POCSO Act states that the police have to report to the Child Welfare Committee and the Special Court without unnecessary delay but within a period of 24 hours. Section 22 deals with punishment for making false complaints or providing false information against any person with the intention to humiliate the accused. Activists are, therefore, justified in asking the need for the circular to address false complaints.
The delay in filing of an FIR in POCSO cases can be detrimental even to the prosecution’s case, as was highlighted in Raghav vs State by the Delhi High Court on May 24, 2018.
Advocate Persis Sidhva, who has worked closely with the POCSO Act since its enactment and is currently associated with Rati Foundation, which works to create spaces and communities where children are safe from sexual violence, said, “The circular cannot override the law (requiring the filing of FIR in a POCSO case)”. She questioned the evidence, statistics, and the consultative process (whether with the Child Welfare Committees or activists) before issuing the circular.
On Pandey’s observation of misuse of law, Sidhva noted, “Police cannot pre-judge at the stage of FIR whether the case is false. It is the court’s prerogative to decide”. She explained that the Criminal Procedure Code contains provisions under which the police can choose not to file the chargesheet in cases of sexual abuse, and presenting the same to the court to make the decision.
With reference to the circular requiring to follow the guidelines in the landmark Lalita Kumari versus State of Uttar Pradesh (2013), Sidhva noted that the guidelines do not apply to cases falling under the POCSO Act, and hence, cannot override the provisions of the Act. Sidhva told The Leaflet: “The passing of the circular dilutes the efforts of years of hard work spent by activists in constituting the POCSO Act”.