Defending Against False POCSO Allegations
While the POCSO Act is a necessary and important statute for protecting children, Advocate Shaw has also witnessed its misuse. False POCSO allegations can arise from:
Family Disputes: Matrimonial discord where one parent (usually the mother) makes allegations against the father or paternal relatives to gain leverage in custody or divorce proceedings.
Property Disputes: Rivalry between family members or neighbours where a child is coached to make false allegations.
Personal Vendetta: Grudges, jealousy, or business rivalry.
Misunderstanding: Innocent acts misinterpreted as having sexual intent.
Advocate Shaw's defence strategy in false POCSO cases includes:
Rigorous Cross-Examination: The child's testimony is crucial. Advocate Shaw's experience in cross-examining child witnesses respectfully but effectively often reveals inconsistencies, coaching, or tutoring.
Examining Motive: Demonstrating that the complainant had a motive to fabricate — ongoing divorce, custody battle, property dispute, or prior enmity.
Medical Evidence: Analyzing medical reports to show that the allegations are not supported by medical findings.
Alibi and Other Evidence: Demonstrating that the accused was not at the scene or that the incident could not have occurred as alleged.
Procedural Violations: Highlighting violations of the mandatory procedures under the POCSO Act — improper recording of the child's statement, violation of the 24-hour recording requirement, or failure to produce the child before the magistrate.
POCSO Trial Procedure in Kolkata
POCSO cases in Kolkata are tried by Special Courts (designated Sessions Courts). Key procedural aspects:
Recording of FIR: The police must register an FIR immediately upon receiving information of a POCSO offence.
Recording of Statement (Section 164 CrPC / Section 183 BNSS): The child's statement must be recorded by a magistrate within 24 hours of the FIR (where possible). This is a statutory requirement, and failure can be a ground for challenging the prosecution.
Medical Examination: The child must be medically examined within 24 hours. The examination must be conducted by a female doctor, and in the presence of a parent or guardian.
Investigation: The investigation must be completed within 30 days (for offences under Sections 3, 5, 7, or 9) or 60 days (for other offences).
Charge Sheet / Final Report: The police file a charge sheet (if evidence is found) or a final report (if no evidence).
Trial: The trial is held in camera. The child witness is examined through a screen or video link so that the child does not see the accused. The child's parent or a support person is present.
Presumption of Guilt: Section 29 of the POCSO Act creates a reverse burden — the accused is presumed guilty unless they prove their innocence. This makes the defence's task more challenging and demands a strategic approach.
Bail in POCSO Cases
POCSO offences are non-bailable. However, bail can be granted if the court is satisfied that there are grounds to believe that the accused is not guilty and is not likely to commit any offence while on bail. Advocate Shaw has secured bail for numerous clients in POCSO cases by:
Demonstrating Weak Prima Facie Case: Showing that the FIR or the child's statement does not make out a case under the POCSO Act.
Highlighting Inconsistencies: Pointing out contradictions between the FIR, the child's Section 164 statement, and the medical evidence.
Showing Mala Fides: Demonstrating that the allegations are motivated by malice.
Delay in FIR: Unexplained delay in lodging the FIR can be a ground for bail.
Clean Antecedents: The accused has no prior criminal record and is not a flight risk.
Child's Age: In borderline cases where the child's age is disputed (e.g., the child may actually be 18+), Advocate Shaw challenges the age determination.
POCSO Appeals and Quashing
If convicted under the POCSO Act:
Appeal to the Calcutta High Court: A criminal appeal can be filed against the conviction and sentence. The High Court can reappreciate evidence.
Quashing Before Trial: In cases where the FIR, even at face value, does not disclose a POCSO offence, a quashing petition can be filed before the Calcutta High Court under Section 528 BNSS / Article 226.
Advocate Shaw represents clients in POCSO appeals and quashing proceedings with the same dedication as trial work.