Prayas on the Criminal Liability of a 4-year-old boy child

On November 17 a girl child of 4 was allegedly sexually assaulted in a Delhi School by her classmate, a
boy child of 4 and a half years. Media reporting has indicated that the boy violated the girls private parts
with his fingers and a sharpened pencil in an unsupervised classroom and a washroom.

The Police registered an FIR under the provisions of the POCSO (Protection of Children from Sexual
Offences) Act 2012 on the basis of a complaint by the girls parents.

Section 82 of the India Penal Code reads:

Act of a child under seven years of ageNothing is an offence which is done by a child under seven years
of age.

The IPC therefore makes it clear that a child below the age of seven can not be said to have committed an
offence. A crucial element of criminal liability is Mens Rea - the intention to commit a crime. Intention can
not be said to have been present unless a person has mental capacity to understand the consequences of
their acts. The Indian Penal Code - the substantive Law on Criminal offences deems a child below 7
incapable of understanding the consequences of his/her act or forming intent to commit a crime (called doll
incapax).

Once the Age of the child was established the Police was under a legal obligation to not lodge an FIR
against the boy.

The POCSO Act 2012 is silent on the issue of the age of an offender under the Act. Since there lies no
inconsistency between POCSO and IPC regarding the age of an offender and the age of criminal liability
clearly defined in the IPC, the age factor remains governed by the IPC. Moreover, POCSO in its preamble
envisages it is imperative that the law operates in a manner that the best interest and well being of the
child are regarded as being of paramount importance at every stage, to ensure the healthy physical,
emotional, intellectual and social development of the child. The application IPCs definition of age of
criminal liability also harmonizes the principle of Best Interest.

The very question of the accused boys ability to commit such an act arises. A boy of that age is incapable
of possessing sexual curiosity let alone sexual urges/tendencies for committing such an act. If the alleged
act has truly been committed, it is indisputable that the boy has been exposed to sexual activities either as
a witness or as a participant (a victim in either scenario, under POCSO and possibly even IPC).

In such a case, the boy is undoubtedly a Child in need of Care and Protection under Section 2 (14) of the
Juvenile Justice (Care and Protection of Children) Act 2015, may fall under any of the following categories:

(iii ) who resides with a person (whether a guardian of the child or not) and such person
(a ) has injured, exploited, abused or neglected the child or has violated any other law for the time being
in force meant for the protection of child;

(v ) who has a parent or guardian and such parent or guardian is found to be unfit or incapacitated, by the
Committee or the Board, to care for and protect the safety and well-being of the child; or

The Child Welfare Committee that is required to conduct inquiries under the JJ Act must be given charge
of the child whose thorough psychological assessments in accordance with his age must be drawn followed
by an Individual Care Plan to contain the course of action for his care and protection.
As prevention is an important component of Law Enforcement which is a responsibility of the entire
community as a whole, schools must make sex education and lessons on good touch and bad touch
mandatory. Parents must also be made party to such sessions and sensitised on issues of sexual abuse,
physical abuse, emotional abuse and neglect.

Prayas Juvenile Aid Centre is a national level humanitarian, gender sensitive and child focused development
organization. In its 29 years among over 50 Projects, Prayas operates 247 centres with more than 800
professionals including 50 Homes/Shelters for children, 54 Vocational Training Centres, across the country
in 09 States/UTs directly serving about 50,000 marginalized children, youth and women addressing
multiple issues and initiating programs relating to child protection and juvenile justice, trafficking of
children and women, vocational and life skills training, empowerment of women through Self-Help Groups
and Income Generation Programmes, promotion of entrepreneurship, facilitating credit through bank
linkages and also direct micro finance operations.

Prayas conducted a Study in 2007 across 13 states with a sample size of 12447 children and 2324 young
adults that found 53.22% children reported having faced one or more forms of sexual abuse and 50%
abusers were persons known to the child or in a position of trust and responsibility. The study was shocking
and formed the basis for the formation of the POCSO Act.

The Civil Society Organisations therefore have a crucial role to play. Schools in collaboration with
dedicated NGOs can raise awareness amongst their management, employees, faculty, students and parents.