The Hon’ble Supreme Court in a
case decided on 25.04.2013 titled as “Shankar Kisanrao Khade vs. State of Maharashtra” Criminal Appeal Nos. 362-363 of 2010, [in Para 55 of Judgement
delivered by K.S. Radhakrishnan, J] has passed following directions in respect
of sexual abuse or assault of minor child:
(1) The persons in-charge of the
schools/educational institutions, special homes, children homes, shelter homes,
hostels, remand homes, jails etc. or wherever children are housed, if they come
across instances of sexual abuse or assault on a minor child which they believe
to have committed or come to know that they are being sexually molested or
assaulted are directed to report those facts keeping upmost secrecy to the
nearest S.J.P.U. or local police, and they, depending upon the gravity of the
complaint and its genuineness, take appropriate follow up action casting no
stigma to the child or to the family members.
(2) Media personals, persons in
charge of Hotel, lodge, hospital, clubs, studios, photograph facilities have to
duly comply with the provision of Section 20 of the Act 32 of 2012 (read: The
Protection of Children from Sexual Offences Act, 2012) and provide information to
the S.J.P.U., or local police. Media has to strictly comply with Section 23 of
the Act as well.
(3) Children with intellectual
disability are more vulnerable to physical, sexual and emotional abuse.
Institutions which house them or persons in care and protection, come across
any act of sexual abuse, have a duty to bring to the notice of the J.J.
Board/S.J.P.U. or local police and they in turn be in touch with the competent
authority and take appropriate action.
(4) Further, it is made clear
that if the perpetrator of the crime is a family member himself, then utmost
care be taken and further action be taken in consultation with the mother or
other female members of the family of the child, bearing in mind the fact that
best interest of the child is of paramount consideration.
(5) Hospitals, whether Government
or privately owned or medical institutions where children are being treated
come to know that children admitted are subjected to sexual abuse, the same
will immediately be reported to the nearest J.J. Board/SJPU and the JJ Board,
in consultation with SJPU, should take appropriate steps in accordance with the law safeguarding the
interest of child.
(6) The non-reporting of the
crime by anybody, after having come to know that a minor child below the age of
18 years was subjected to any sexual assault, is a serious crime and by not
reporting they are screening offenders from legal punishment and hence be held
liable under the ordinary criminal law and prompt action be taken against them,
in accordance with law.
(7) Complaints, if any, received
by NCPCR, S.C.P.C.R. Child Welfare Committee (CWC) and Child Helpline, NGO’s or
Women’s Organizations etc., they may take further follow up action in
consultation with the nearest J.J. Board, S.J.P.U. or local police in
accordance with law.
(8) The Central Government and
the State Governments are directed to constitute SJPUs in all the Districts, if
not already constituted and they have to take prompt and effective action in
consultation with J. J. Board to take care of child and protect the child and
also take appropriate steps against the perpetrator of the crime.
(9) The Central Government and
every State Government should take all measures as provided under Section 43 of
the Act 32/2012 (read: The Protection of Children from Sexual Offences Act,
2012) to give wide publicity of the provisions of the Act through media
including television, radio and print media, at regular intervals, to make the
general public, children as well as their parents and guardians, aware of the
provisions of the Act.
The Court has also observed that:
“I may also point out that, in large numbers of cases, children are
abused by persons known to them or who have influence over them. Criminal
Courts in this country are galore with cases where children are abused by
adults addicted to alcohol, drugs, depression, marital discord etc. Preventive
aspects have seldom been given importance or taken care of. Penal laws focus
more on situations after commission of offences like violence, abuse,
exploitation of the children. Witnesses of many such heinous crimes often keep
mum taking shelter on factors like social stigma, community pressure, and
difficulties of navigating the criminal justice system, total dependency on
perpetrator emotionally and economically and so on. Some adult members of
family including parents choose not to report such crimes to the police on the
plea that it was for the sake of protecting the child from social stigma and it
would also do more harm to the victim. Further, they also take shelter pointing
out that in such situations some of the close family members having known such
incidents would not extend medical help to the child to keep the same
confidential and so on, least bothered about the emotional, psychological and
physical harm done to the child. Sexual abuse can be in any form like sexually
molesting or assaulting a child or allowing a child to be sexually molested or
assaulted or encouraging, inducing or forcing the child to be used for the
sexual gratification of another person, using a child or deliberately exposing
a child to sexual activities or pornography or procuring or allowing a child to
be procured for commercial exploitation and so on. [Para 50]
In my view, whenever we deal with an issue of child abuse, we must
apply the best interest child standard, since best interest of the child is
paramount and not the interest of perpetrator of the crime. Our approach must
be child centric. Complaints received from any quarter, of course, have to be
kept confidential without casting any stigma on the child and the family
members. But, if the tormentor is the family member himself, he shall not go
scot free. Proper and sufficient safeguards also have to be given to the
persons who come forward to report such incidents to the police or to the
Juvenile Justice Board. [Para 51]