POCSO -- Arrest -- Allegation Against Parent in Matrimonial Dispute -- Police cannot arrest without prior evaluation of child by expert
(i) Bharatiya Nagarik Suraksha Sanhita, 2023, S.35 -- Arrest -- POCSO Allegation Against Parent in Matrimonial Dispute -- Police must not arrest in haste where offence is alleged against parent or family member living in same house and parents are in a matrimonial dispute -- Independent evaluation of child by expert in child psychiatry or clinical psychology from register of District Child Protection Unit is required first -- It may be skipped only in exceptional cases, for reasons recorded in writing -- Opinion helps decide if reason to believe exists for arrest. (ii) Protection of Children from Sexual Offences Act, 2012, S.33 -- Cognizance -- Private Complaint Before Special Court in Matrimonial Dispute -- Special Court must not take cognizance or issue summons mechanically -- Psychological evaluation report of child must be called for before issuing process -- Exception is allowed only for reasons recorded in writing. (iii) Guardians and Wards Act, 1890, S.25 -- Custody of Child -- POCSO FIR Against Parent -- Registration of FIR does not by itself disqualify a parent from claiming custody -- Family Court must independently examine the prima facie truth of the allegations -- Welfare of child remains the governing test. (iv) Protection of Children from Sexual Offences Act, 2012, S.10 -- Quashing of FIR -- POCSO Allegation Made to Overturn Custody Orders -- Criminal process cannot be used to undo custody orders that have become final -- FIR is liable to be quashed where investigation finds allegations unreliable and not fit for prosecution.
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