Brij Bhushan booked for aggravated sexual assault, but still free. What POCSO Act says on arrest

An offence falling under Section 10 of POCSO Act is cognizable & non-bailable. When committed by an individual in a position of authority, it is categorised as an 'aggravated' offence.

Wrestling Federation of India (WFI) chief and BJP MP Brij Bhushan Sharan Singh addresses a public meeting, in UP's Barabanki on Wednesday | ANI

APOORVA MANDHANI, The Print, 1 June, 2023, New Delhi: With wrestlers continuing their protest against Wrestling Federation of India (WFI) chief Brij Bhushan Sharan Singh, calls for his immediate arrest have intensified. The BJP MP has been accused of sexual harassment by seven women wrestlers, including a minor.

Olympians Sakshi Malik, Vinesh Phogat and Bajrang Punia sat in protest at Delhi’s Jantar Mantar for over a month. But on Sunday, several protesting wrestlers were briefly detained and booked by the police as they tried to march towards the new Parliament building when the inauguration — helmed by Prime Minister Narendra Modi — was underway. Days later, Punia, Malik and Phogat reached Haridwar to immerse their medals in the Ganges, but returned without doing so after farmer leaders reportedly convinced them and sought five days to address their grievances.

The Delhi Police has lodged two separate First Information Reports (FIRs), including one under Section 10 of the Protection of Children from Sexual Offences (POCSO) Act 2012, against Brij Bhushan, who has denied all charges. Section 10 of the Act talks about aggravated sexual assault. 

On Wednesday, Rajya Sabha MP and senior advocate Kapil Sibal asked why Brij Bhushan has not been arrested so far. 

Brij Bhushan, on the other hand, has claimed that the POCSO law is being “misused” and asserted that, under the leadership of seers, “we will force the government to change” it.

So what does the POCSO Act say, and is an immediate arrest the norm in such cases? ThePrint explains: 

What is an ‘aggravated offence’

The POCSO Act was introduced in 2012 to protect children from sexual assault, sexual harassment and pornography. The law is gender-neutral, and regards the “best interest and well-being of the child” as a matter of paramount importance at every stage, “to ensure the healthy physical, emotional, intellectual and social development of the child”.  

According to the law, whoever “touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person” with sexual intent, or does any other act with sexual intent involving physical touch without penetration, would be held guilty of sexual assault. 

Offences under this law are considered graver if committed by a relative, police officer, public servant, any member of the staff at a remand home, protection or observation home, jail, hospital or educational institution, or by a member of the armed or security forces.

They are also considered graver if committed by the management or staff of an educational institution, or by the owner or management or staff of any institution providing services to the child, or by someone “in a position of trust or authority of a child…in an institution or home of the child or anywhere else”.

The law categorises these graver offences as “aggravated” offences, and lays down a higher punishment for them. Therefore, sexual assault by any such person in authority, depending on their relationship with the child, would amount to aggravated sexual assault. 

Under POCSO, for aggravated penetrative sexual assault, the minimum punishment is 20 years, and could go up to life imprisonment or death penalty. For aggravated sexual assault, the convicted can be punished for five to seven years. As against this, the punishment for penetrative sexual assault ranges from 10 years to life imprisonment, and three to five years for sexual assault. 

Section 19 of the Act makes it mandatory for anyone, including authorities such as hospitals, to inform the police in case they come across any incident of alleged sexual assault on a minor. Anybody failing to report such a case can be punished with a six month jail term or fine, or both. 

When does arrest happen?

Offences that fall under Section 10 of the POCSO Act are cognizable and non-bailable. Cognizable offences are those in which a police officer can make an arrest without a warrant from a court. These include offences which are considered more serious in nature, such as murder, rape, dowry death, and kidnapping. If an offence is non-bailable, bail is granted to the accused at the discretion of the court, and not as a matter of right.

In such serious offences, while the discretion to arrest still rests with the police, the accused is usually arrested. The offences are also non-bailable, indicating that an arrest usually follows an FIR in such cases. 

Supreme Court lawyer Aparna Bhat explained, “The reason an offence gets identified as aggravated is because of the position a person is holding, because it is a position of trust, and a position of authority in an organisation. In this case, there was a position of trust because he held an official position in an organisation which was supposed to be looking after these wrestlers. These people also knew who this person was, so there are two positions of trust that the accused would have allegedly violated.”

She added: “Keeping both these in mind, this is an aggravated offence according to the law. Ordinarily, in such cases, the police take action and the person is identified. And then they have to take formal bail from the court.”

Talking to ThePrint, Delhi-based criminal lawyer Sarim Naved said, “In POCSO cases, arrest is usually taken as a given, even for offences which are punishable for less than seven years. This is because in POCSO cases, the victim, by definition, is vulnerable.”

“This is very bizarre for a regular criminal law practitioner…If this is the standard that they are going to apply at the stage of investigation, then everybody should be out,” he added. 

‘Is this not intimidation?’

In a landmark judgment in 2014, known as the Arnesh Kumar case, the Supreme Court had issued guidelines with the intention that “police officers do not arrest unnecessarily and magistrates do not authorise detention casually and mechanically”. These included the requirement that the police officer should record reasons for arresting an accused and is expected to issue a notice of appearance in cases involving offenses with a jail term of less than seven years. 

However, Naved, quoted earlier, explained, “The Supreme Court has never said that for cases (inviting) less than seven years (of imprisonment), there can be no arrest. They have only said that for such an arrest, reasons have to be recorded in writing.”

Referring to Brij Bhushan’s case, Naved asked, “In this case, the accused is going around and saying that the wrestlers are lying, they should return their medals. He is organising rallies. How does it not amount to intimidation of witnesses?”

He added, “At least they should explain why the arrest has not happened…The law as it stands is that if a prosecutrix says that something has happened, you at least registered an FIR and investigate. What is the investigation? Has this person even been questioned once? The police at least need to question him.”

(Edited by Smriti Sinha)