1 Answer
Dear Client, this is a serious case regarding a child's infringement of their rights, privacy, and safety. This is an important issue that needs to be addressed, first with regard to the applicability of the POCSO Act, and secondly with regard to the alternatives available to you.
Your question regarding the applicability of the POCSO Act has a specific answer. The POCSO Act defines a child as anyone under 18 years of age, therefore when the offence took place, the victim was still a child at age 16 and POCSO will apply to the offence as it occurred at that time.
POCSO also has provisions for when it can be used to supersede other legislation. In Section 42A of POCSO, it states that the provisions of POCSO will take precedence over any other law if there is a conflict between the two, however, POCSO does not provide for a limitation period.
The Limitation Act applicable to criminal prosecutions will determine when the limitation period begins. Under the Limitations Act, the limitation period for criminal prosecutions begins on the date of the offence; thereby providing concern that this offence was committed over eight years ago.
However, there is an important saving principle. Courts have held in several cases that where a minor victim was unable to report the offence due to intimidation, fear, or the nature of the threats, all of which are clearly present here, the period during which the victim was under coercion should not be counted against limitation. The threat of gang rape and ruination of marriage prospects are exactly the kind of threats that keep victims silent for years. This argument must be made before the court.
The audio recording of the woman admitting to removing the memory card from the phone is an extraordinary piece of evidence. As per the provisions of the BSA, as per Section 63, the above-mentioned audio recording can be used as electronic evidence. You should lodge an FIR immediately at your nearest Police Station, citing:
BNS Section 74 (Blackmail and Extortion);
BNS Section 77 (Assault or Criminal Force to Outrage Modesty);
IT Section 67A (Publishing Sexually Explicit Morphed Content); and
Threatening a Woman with Rape, which is treated as a stand-alone offence under BNS Section 79.
The honourable IT Act, through Section 66E, addresses the unlawful capture and transmission of private images and therefore, the act of morphing of the photos falls directly within the ambit of that legislation.
Please note that due to the passage of time since the offences took place, it is important that you lodge the FIR and simultaneously file an Application to the Sessions Court for Condonation of Delay due to Continuous Fear and Intimidation on the basis of the Audio Recording of Your Behaviour Witnessing you commit these offences.
The lower courts have shown increased sensitivity to the delayed reporting of crimes involving threats against women and girls, as such having the evidence in the form of audio is the key to this case.
You shall maintain the original audio recording in the original form on the original device if possible and create verifiable copies immediately.
I hope this helps, and if you have any further issues, do not hesitate to contact us.